Week 5 2 PDF

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SUCCESSION WEEK 5- September 15 and 17 2015
11. CASE TITLE: Estate of Ablada v Abaja
AUTHOR: Joey
TOPIC: Failure to state the number of witnesses
ARTICLE NUMBER UNDER AND PROVISION
Section 618 of the Code of Civil Procedure, the requisites of a
will are the following:
(1) The will must be written in the language or dialect known by
the testator;
(2) The will must be signed by the testator, or by the testators
name written by some other person in his presence and by his
express direction;
(3) The will must be attested and subscribed by three or more
credible witnesses in the presence of the testator and of each
other;
(4) The testator or the person requested by him to write his
name and the instrumental witnesses of the will must sign each
and every page thereof on the left margin;
(5) The pages of the will must be numbered correlatively in
letters placed on the upper part
of each sheet;
(6) The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the testator
signed the will and every page of the will, or caused some other
person to write his name, under his express direction, in the
presence of three witnesses, and the witnesses witnessed and
signed the will and all the pages of the will in the presence of the
testator and of each other.
DOCTRINE
The failure of the attestation clause to state the number of
attesting witnesses is not a fatal defect.
FACTS:
Abada died sometime in May 1940. His widow Paula Toray
("Toray") died sometime in September 1943. Both died without
legitimate children.
Abada allegedly named as his testamentary heirs his
natural children Eulogio Abaja and Rosario Cordova.
Alipio C. Abaja (son of Eugolio) filed with the then Court
of First Instance of Negros Occidental (now RTCKabankalan) a petition for the probate of the last will
and testament of Abada.
Nicanor Caponong opposed the petition on the ground that
Abada left no will when he died in 1940.
He further alleged that the will, if Abada really executed
it, should be disallowed for the following reasons:
It was not executed and attested as required by
law;
It was not intended as the last will of the
testator
It was procured by undue and improper
pressure and influence on the part of the
beneficiaries.
Other alleged intestate heirs (nephews, nieces,
grandchildren) also opposed the petition citing the same
grounds
Alipio filed another petition before the RTC-Kabankalan for the
probate of the last will and testament of Toray. This was again
opposed by Capanong and other intestate heirs.
Caponong filed a petition before the RTC-Kabankalan praying
for the issuance in his name of letters of administration of the
intestate estate of Abada and Toray.
the RTC-Kabankalan admitted to probate the will of

Toray. Since the oppositors did not file any motion for
reconsideration, the order allowing the probate of
Torays will became final and executory.
RTC: the Last Will and Testament of Alipio Abada is admitted

and allowed probate. CA: affirmed
ISSUE:
WON Court of Appeals erred in sustaining the RTC-Kabankalan
in admitting to probate the will of Abada.
RULING:
No
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites
of a will are the following:
the testator;
express direction;
other;
of each sheet;
Caponong-Noble is correct in saying that the attestation clause
does not indicate the number of witnesses. On this point, the
Court agrees with the appellate court in applying the rule on
substantial compliance in determining the number of witnesses.
While the attestation clause does not state the number of
witnesses, a close inspection of the will shows that three
witnesses signed it.
We rule to apply the liberal construction in the probate of
Abadas will. Abadas will clearly shows four signatures: that of
Abada and of three other persons. It is reasonable to conclude
that there are three witnesses to the will. The question on the
number of witnesses is answered by an examination of the will
itself and without the need for presentation of evidence aliunde.
DISPOSITIVE:
WHEREFORE, we AFFIRM the Decision of the Court of Appeals
.
FAILURE TO STATE THAT THE TESTATOR
SIGNED THROUGH AN AGENT
12. CASE TITLE: Garcia v Lacuesta
AUTHOR: Joey
TOPIC: Failure to state that the testator signed through an agent
ARTICLE NUMBER UNDER AND PROVISION
Under Section 618 of the Code of Civil Procedure, the requisites
of a will are the following:
the testator;
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express direction;
other;
of each sheet;
DOCTRINE
Where it appears that the testator caused another person to
write his name in the will, such fact must be stated in the
attestation clause. A failure to make such a recital is a fatal
defect.
That the testator affixed a cross after his name written by
another person is not sufficient indication that the testator in fact
signed the will, absent a clear showing that the cross is the
customary signature of the testator, or at the very least, one of
the ways by which the testator signed his name.
FACTS:
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado
The will appears to have been signed by Atty. Florentino Javier
who wrote the name of Antero Mercado, following below by "A
ruego del testador" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his
name
The Court of Appeals, reversing the judgment of the Court of
First Instance of Ilocos Norte, ruled that the attestation clause
failed
surplusage. Petitioner's theory is that the cross is as much a

signature as a thumb mark, the latter having been held sufficient
by this Court in other cases.
It is not here pretended that the cross appearing on the will is
the usual signature of Antero Mercado or even one of the ways
by which he signed his name. After mature reflection, we are not
prepared to liken the mere sign of a cross to a thumb mark, and
the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumb mark.
What has been said makes it unnecessary for us to determine
whether there is sufficient recital in the attestation clause as to
the signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and
of each other.
DISPOSITIVE:
Wherefore, the appealed decision is hereby affirmed, with costs
against the petitioner.
ATTESTING SIGNATURES
13. TESTATE ESTATE OF CAGRO V. CAGRO
ART 804-808
DOCTRINE: The attestating signatures of the witnesses at the
bottom of the will affirms and solidifies that what is provided for
in the will is in truth made at the instance of the decedent. It is
an indispensable requirement, such that its absence would
nullify the will.
FACTS: The case is an appeal interposed by the oppositors
from a decision of the CFI which admitted to probate a will
allegedly executed by Vicente Cagro, the decedent. The
appellants insisted that the will is defective because the
attestation was not signed by the witnesses at the bottom
although the page containing the same was signed by the
witnesses on the left hand margin. Petitioner contended that the
signatures of the 3 witnesses on the left hand margin conform
substantially to law and may be deemed as their signatures to
the attestation clause.
ISSUE: Whether or not the will is valid.
to certify that the will was signed on all the left margins
of the three pages and at the end of the will by Atty.
Florentino Javier at the express request of the testator
in the presence of the testator and each and every one
of the witnesses;
to certify that after the signing of the name of the
testator by Atty. Florentino Javier at the former's request
said testator has written a cross at the end of his name
and on the left margin of the three pages of which the
will consists and at the end thereof;
to certify that the three witnesses signed the will in all
the pages thereon in the presence of the testator and of
each other.
HELD: No, the will is not valid. The attestation clause is a

memorandum of the facts attending the execution of the will. It is
required by law to be made by the attesting witnesses and it
must necessarily bear their signatures. An unsigned attestation
clause cannot be considered as an act of the witnesses since
the omission of their signatures at the bottom negatives their
participation.
Moreover, the signatures affixed on the left hand margin is not
substantial conformance to the law. The said signatures were
merely in conformance with the requirement that the will must be
signed on the left-hand margin of all its pages. If the attestation
clause is unsigned by the 3 witnesses at the bottom, it would be
easier to add clauses to a will on a subsequent occasion and in
the absence of the testator and any or all of the witnesses.
ISSUE:
WON the will is valid
The probate of the will is denied. Respondent won.
RULING:
14. AZUELA v. COURT OF APPEALS
No
The attestation clause is fatally defective for failing to state that
Antero Mercado caused Atty. Florentino Javier to write the
testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure.
ART: 804-809
DOCTRINE: Defects in a will:
(1) AC did not state number of pages
Petitioner argues that there is no need for such recital because

the cross written by the testator after his name is sufficient
signature and the signature of Atty. Florentino Javier is a
FATALLY DEFECTIVE ATTESTATION CLAUSE
(2) Witnesses did not sign the Attestation Clause

(3) No acknowledgment by a notary
(4) No signature of the testator in each and every page
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(5) Pages were not numbered consecutively
Any one of these defects is sufficient to deny probate. A
notarial will with all three defects is just aching for judicial
rejection.
FACTS:
Azuela filed a petition with the trial court for the probate of a
notarial will purportedly executed by Igsolo. The will consisted of
two (2) pages and was written in Filipino. The attestation clause
did not state the number of pages and it was not signed by the
attesting witnesses at the bottom thereof. The said witnesses
affixed their signatures on the left-hand margin of both pages of
the will though.
Castillo opposed the petition, claiming that the will was a forgery.
She also argued that the will was not executed and attested to in
accordance with law. She pointed out that the decedents
signature did not appear on the second page of the will, and the
will was not properly acknowledged.
The trial court held the will to be authentic and to have been
executed in accordance with law and, thus, admitted it to
probate, calling to fore the modern tendency in respect to the
formalities in the execution of a willwith the end in view of
giving the testator more freedom in expressing his last wishes.
According to the trial court, the declaration at the end of the will
under the sub-title, Patunay Ng Mga Saksi, comprised the
attestation clause and the acknowledgement, and was a
substantial compliance with the requirements of the law. It also
held that the signing by the subscribing witnesses on the left
margin of the second page of the will containing the attestation
clause and acknowledgment, instead of at the bottom thereof,
substantially satisfied the purpose of identification and
attestation of the will.
The CA, however, reversed the trial courts decision and ordered
the dismissal of the petition for probate. It noted that the
attestation clause failed to state the number of pages used in
the will, thus rendering the will void and undeserving of probate.
Azuela argues that the requirement under Article 805 of the Civil
Code that the number of pages used in a notarial will be stated
in the attestation clause is merely directory, rather than
mandatory, and thus susceptible to what he termed as the
substantial compliance rule.
ISSUE:
Whether or not the subject will complied with the requirements
of the law and, hence, should be admitted to probate.
HELD:
No,
the will DID NOT comply with the requirements of the law,
hence it should NOT be admitted to probate. A will whose
attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose
attestation clause is not signed by the instrumental witnesses is
fatally defective. And perhaps most importantly, a will which
does not contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny probate.
A notarial will with all three defects is just aching for judicial
rejection.
Although there is the substantial compliance rule. Justice
J.B.L. Reyes cautioned that the rule must be limited to
disregarding those defects that can be supplied by an
examination of the will itself: (whether all the pages are
consecutively numbered; whether the signatures appear in each
and every page; whether the subscribing witnesses are three or
the will was notarize)
However, those omissions which cannot be supplied except by
evidence would result in the invalidation of the attestation clause
and ultimately, of the will itself.
The failure of the attestation clause to state the number of pages
on which the will was written remains a fatal flaw, despite Art.
809. This requirement aims at safeguarding the will against
possible interpolation or omission of one or some of its pages
and thus preventing any increase or decrease in the pages.
While the signatures of the instrumental witnesses appear on
the left-hand margin of the will, they do not appear at the bottom
of the attestation clause. Art. 805 particularly segregates the
requirement that the instrumental witnesses sign each page of
the will, from the requisite that the will be attested and
subscribed by them. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware
that the page they are signing forms part of the will. On the other
hand, the signatures to the attestation clause establish that
the witnesses are referring to the statements contained in
the attestation clause itself. An unsigned attestation clause
results in an unattested will.
Petition denied. Respondent won.
CONFLICTING TESTIMONIES OF WITNESSES
15. CASE TITLE: VDA DE RAMOS vs CA
AUTHOR: KADJIM
TOPIC: Conflicting Testimonies of Witnesses
DOCTRINE: As a rule, if any or all of the subscribing witnesses
testify against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubtful credibility, the
will may, nevertheless, be allowed if the court is satisfied from
the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner
required by law.
FACTS: The late Eugenia Danila left a will wherein she
instituted among others Adelaida Nista as one of the instituted
heirs. Nista petitioned before the court to admit the will to
probate. The petition was opposed by Buenaventura Guerra and
Marcelina Guerra. The two oppositors claimed that they were
the legally adopted children of Danila; that the said will sought to
be probated by Nista was obtained through fraud.
The two parties talked and they came up with a compromise
agreement which essentially stated that Nista is admitting the
invalidity of the will. The compromise agreement was approved
by the trial court BUT Rosario de Ramos et al the other
instituted heirs and devisees intervened. The trial court
allowed the intervention and set aside the compromise
agreement. Rosario de Ramos et al alleged that the Guerras
repudiated their shares when they abandoned Danila and
committed acts of ingratitude against her.
Eventually, the probate court admitted the will to probate. The
decision was appealed by the Guerras. The Court of Appeals
reversed the decision of the probate court. The CA ruled that
there was a failure to prove that Danila was in the presence of
the instrumental witnesses when she signed the will this was
because two of the instrumental witnesses (Sarmiento and Paz)
testified in court that the will was already signed by Danila when
they affixed their signatures.
HOWEVER, Atty. Ricardo Barcenas, the Notary Public before
whom the will was executed and who assisted in the execution,
vehemently assailed the testimony of the two witnesses. He
affirmed Danila and the three instrumental witnesses were in
each others presence when the will was signed by them.
Another lawyer, who was also present during the execution of
the will, corroborated the testimony of Atty. Barcenas.
ISSUE: WON the last testament and its accompanying codicil
were valid, considering the complicated circumstances that two
of the attesting witnesses testified against their due execution
while other non-subscribing witnesses testified to the contrary.
RULING: YES. There is ample and satisfactory evidence to
prove that the will and codicil were executed in accordance with
the formalities required by law. It appears positively and
convincingly that the documents were prepared by a lawyer,
Atty. Manuel Alvero The execution of the same was evidently
supervised by his associate, Atty. Ricardo Barcenas and before
whom the deeds were also acknowledged. The solemnity
surrounding the execution of a will is attended by some
intricacies not usually within the comprehension of an ordinary
layman. The object is to close the door against bad faith and
fraud, to avoid substitution of the will and testament, and to
guarantee their truth and authenticity.
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The attestation clause was signed by the instrumental
witnesses. This serves as their admissions of the due execution
of the will and thus preventing them from prevaricating later on
by testifying against the wills due execution.
The execution of the same was evidently supervised by Atty.
Ricardo Barcenas and before whom the deeds were also
acknowledged. The solemnity surrounding the execution of a will
is attended by some intricacies not usually within the
comprehension of an ordinary layman. The object is to close the
door against bad faith and fraud, to avoid substitution of the will
and testament, and to guarantee their truth and authenticity.
There is a presumption in the regularity of the performance of a
lawyer with his duty as a notary public. There has been no
evidence to show that Barcenas has been remiss in his duty nor
were there any allegations of fraud against him. In fact, the
authenticity of Danilas and the witnesses signature was never
questioned.
The attestation clauses, far from being deficient, were properly
signed by the attesting witnesses. Neither is it disputed that
these witnesses took turns in signing the will and codicil in the
presence of each other and the testatrix. Both instruments were
duly acknowledged before a Notary Public who was all the time
present during the execution.
Subscribing witnesses may forget or exaggerate what they really
know, saw, heard or did; they may be biased and, therefore, tell
only half-truths to mislead the court or favor one party to the
prejudice of the others. As a rule, if any or all of the subscribing
witnesses testify against the due execution of the will, or do not
remember having attested to it, or are otherwise of doubtful
credibility, the will may, nevertheless, be allowed if the court is
satisfied from the testimony of other witnesses and from all the
evidence presented that the will was executed and attested in
the manner required by law.
In weighing the testimony of the attesting witnesses to a will, the
statements of a competent attorney, who has been charged with
the responsibility of seeing to the proper execution of the
instrument, is entitled to greater weight than the testimony of a
person casually called to participate in the act, supposing of
course that no motive is revealed that should induce the
attorney to prevaricate. The reason is that the mind of the
attorney being conversant of the instrument, is more likely to
become fixed on details, and he is more likely than other
persons to retain those incidents in his memory.
DISPOSITIVE: WHEREFORE, the decision of respondent Court
of Appeals is hereby reversed in so far its it disallowed the
probate of the will and codicil. With costs against respondents.
16. GUERRERO V. BIHIS
DOCTRINE: 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. This formal requirement is one of the indispensable
requisites for the validity of a will. 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.
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 sisters 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. 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
testatrixs 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. This formal requirement is one of the indispensable
requisites for the validity of a will. 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 coextensive 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.
Sine Atty. Directo was not a commissioned notary public for and
in Quezon City, he lacked the authority to take the
acknowledgment of the testratix and the instrumental witnesses.
In the same vain, the testratix and the instrumental witnesses
could not have validly acknowledged the will before him. Thus,
Felisa Tamio de Buenaventuras last will and testament was, in
effect, not acknowledged as required by law.
CRUZ V. VILLASOR
DOCTRINE: Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public shall
not be required to retain a copy of the will or file another with the
office of the Clerk of Court.
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the effect of
having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least
three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses
must appear before the notary public to acknowledge the will.
FACTS: The CFI of Cebu allowed the probate of the last will and
testament of the late Valenti Cruz. However, the petitioner
opposed the allowance of the will alleging that it was executed
through fraud, deceit, misrepresentation, and undue influence.
He further alleged that the instrument was executed without the
testator having been informed of its contents and finally, that it
was not executed in accordance with law.
One of the witnesses, Angel Tevel Jr. was also the notary before
whom the will was acknowledged. Despite the objection, the
lower court admitted the will to probate on the ground that there
is substantial compliance with the legal requirements of having
at least 3 witnesses even if the notary public was one of them.
ISSUE: Whether or not the will is valid in accordance with Art.
805 and 806 of the NCC
HELD: NO. Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public shall
not be required to retain a copy of the will or file another with the
office of the Clerk of Court.
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the effect of
having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least
three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses
must appear before the notary public to acknowledge the will.
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The result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the
circumstances, the law would not be duly in observed.
The notary public cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having
signed the said will. An acknowledging officer cannot serve as
witness at the same time.
To acknowledge before means to avow, or to own as genuine, to
assent, admit, and 'before' means in front of or preceding in
space or ahead of. The notary cannot split his personality into
two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such situation
would be absurd.
Finally, the function of a notary among others is to guard against
any illegal or immoral arrangements, a function defeated if he
were to be one of the attesting or instrumental witnesses. He
would be interested in sustaining the validity of the will as it
directly involves himself and the validity of his own act. he would
be in an inconsistent position, thwarting the very purpose of the
acknowledgment, which is to minimize fraud.
TESTATOR AND WITNESSES TO ACKNOWLEDGEMENT
THE WILL
2. We have held heretofore that compliance with the

requirement contained in the above legal provision to the effect
that a will must be acknowledged before a notary public by the
testator and also by the witnesses is indispensable for its validity
- As the document under consideration does not comply with this
requirement, it is obvious that the same may not be probated.
DISPOSITIVE:
WHEREFORE, the decision appealed from is affirmed, with
costs.
SPECIAL FORMALITIES FOR THE DEAF AND DEAF-MUTES
Art. 807. If the testator be deaf, or a deaf-mute, he must
personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, in
some practicable manner, the contents thereof. (n)
SPECIAL FORMALITIES FOR THE BLIND
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged. (n)
18, Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969
Fernando, J (Ponente)
17. GARCIA v GATCHALIAN

FACTS:
1. This is an appeal taken by Pedro Reyes Garcia from the
decision of the
Court of First Instance of Rizal in Special Proceedings
- denying the allowance of the will of the late Gregorio
Gatchalian,
on the ground that the attesting witnesses did not
acknowledge
it before a notary public, as required by law.
2. On March 15, 1967, Gregorio Gatchalian, a widower of 71
years of age, died in the municipality of Pasig, Province of Rizal,
leaving no forced heirs.
3. On April 2 of the same year, appellant filed a petition with the
above named court for the probate of said alleged will (Exhibit
"C") wherein he was instituted as sole heir.
4. Felipe Gatchalian, Aurora G. Camins, Angeles G. Cosca,
Federico G. Tubog, Virginia G. Talanay and Angeles G. Talanay,
appellees herein, opposed the petition on the ground, among
others:
- that the will was procured by fraud; that the
deceased did not intend the instrument signed by him
to be as his will;
- and that the deceased was physically and mentally
incapable of making a will at the time of the alleged
execution of said will.
Facts:
1. Gliceria del Rosario executed 2 wills, one in June 1956,
written in Spanish, a language she knew an spoke. The other
will was executed in December 1960 consisting of only one
page, and written in Tagalog. The witnesses to the 1960 will
declared that the will was first read 'silently' by the testatrix
before signing it. The probate court admitted the will.
2. The oppositors alleged that the as of December 1960, the
eyesight of the deceased was so poor and defective that she
could not have read the provisions contrary to the testimony of
the witnesses.
Issue: Whether or not the will is valid
RULING: The will is not valid. If the testator is blind, Art. 808 of
the New Civil Code (NCC) should apply.If the testator is blind or
incapable of reading, he must be apprised of the contents of the
will for him to be able to have the opportunityto object if the
provisions therein are not in accordance with his wishes.
The testimony of her opthalmologist established that
notwithstanding an operation to remove her cataract and being
fitted with the lenses, this did not improve her vision. Her vision
remained mainly for viewing distant objects and not for reading.
There was no evidence that her vision improved at the time of
the execution of the 2nd will. Hence, she was incapable of
reading her own will. The admission of the will to probate is
therefor erroneous.
5. After due trial, the court rendered the appealed decision

finding the document Exhibit "C" to be the authentic last will of
the deceased but disallowing it for failure to comply with the
mandatory requirement of Article 806 of the New Civil Code
that the will must be acknowledged before a notary public by the
testator and the witnesses.
19. Alvarado v. Gaviola

226 SCRA 347
ISSUE:
WON the will was executed in accordance of Art 806 of the New
Civil Code?
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.
HELD:
NO
1. Article 806 of the New Civil Code reads as follows:
Every will must be acknowledged before a notary public by the
testator and witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the Office of the
Clerk of Court.
Bellosillo, J.
FACTS:
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
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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
testators 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:
Whether or not 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.
RULING:
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 testators 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 testators 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
testators will.
DOCTRINE OF LIBERAL INTERPRETATION

DOCTRINE OF LIBERAL INTERPRETATION
Article 809 of the Civil Code states:
In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 805.
Substantial Compliance
The requirement of law for the execution of wills have certain
definitive objectives.
If the testator, in executing his will, attempts to comply with any
requisite although the compliance is not literal, it will be sufficient
if the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the testator.
This is the rule of substantial compliance in the execution of the
will.
The law on formal requirements of a will should be liberally
construed; while perfection in drafting is desirable, unsubstantial
departures should be ignored (Perez v. Rosal, 118 SCRA 195)
as long as the possibility of fraud and bad faith are obviated. (De
Jesus v. De Jesus, 134 SCRA 245)
The will would be valid, notwithstanding the failure to comply
literally with the law. (Fernandez v. Vergel de Dios, 46 Phil.
922)
20. Testate estate of CARLOS GIL, deceased. ISABEL
HERRERO VDA. DE GIL, administratrix-appellee, vs. PILAR
GIL VDA. DE MURCIANO, oppositor-appellant.
G.R. No. L-3362 March 1, 1951
JUGO, J.
FACTS:
Carlos Gil executed a last will and testament. After his death, it
was presented for probate in the Court of First Instance of
Manila. This was opposed by his nephew, Roberto Toledo y Gil
and sister, Pilar Vda. de Murciano. Toledo was eliminated from
the case since he has no legal right to intervene. The will was
initially destroy and was reconstituted. The parties all agree that
the reconstituted will is a copy of the original will. In the said will,
the attestation clause does not state that the testator signed the
will. It only declares that it was signed by the witnesses. Despite
this defect, the Court of First Instance admitted to probate the
will. Pilar opposed such probate and appealed the decision of
CFI to the Supreme Court. The latter, reversed the decision of
the CFI. Not contended with the decision, Isabel Herreros Vda.
de Gil, the administratrix, filed a motion for reconsideration to
the Supreme Court.
CONTENTIONS:
Administratrix-appellee Isabel Herreros Vda. de Gil, the
administratrix, contends that defective attestation clause may be
cured by inferring in the other parts of the will and inserting a
missing phrase to complete the whole meaning of the attestation
clause. She also claims that the court may correct clerical errors
in a will as evidence by the earlier decisions of the Supreme
Court. OPPOSITOR-APPELLANT. Pilar, on the other hand,
contends that the will should not be probated since the will did
not comply with the requirement of Section 618 of the Code of
Civil Procedure, as amended, which provides that "The
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attestation clause shall state the number of sheets or pages
signed the will and every page thereof, or caused some other
presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the
testator and of each other." Secondly, the earlier decision of the
Supreme Court in this case stated that the defect in the
attestation clause is a fatal and not just a mere clerical error for
it affects the very essence of the clause. Thus, the defect cannot
be cured by inference to the will itself
ISSUE:
Whether or not the will is valid despite its defective attestation
clause?
HELD:
The will is valid. It seems obvious that the missing phrase was
left out from the copy. The problem posed by the omission in
question is governed, not by the law of wills which require
certain formalities to be fulfilled in the execution
Art. 809
Caneda v. CA (1993) [87]
Fact: petitioners aver that the attestation clause is fatally
defective since it fails to specifically state that the instrumental
witnesses to the will witnessed the testator signing the will in
their presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one another.
SC agrees with petitioners. The absence of a statement that
the witnesses signed the will and every page thereof in the
presence of the testator and of one another is a fatal defect
which must necessarily result in the disallowance of the will.
Such defect in the attestation clause cannot be characterized as
merely involving form of the will or the language used therein
which would warrant the application of the substantial
compliance rule contemplated in Art. 809. The defect is not only
in the form or the language of the attestation clause but the total
absence of a specific element required by Art. 805 to be
specifically stated in the attestation clause.
Proper interpretation of the substantial compliance rule in Art.
809: Omission which can be supplied by an examination of the
will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde
(from another source, from elsewhere, from outside source)
would result in the invalidation of the attestation clause and
ultimately, of the will itself.
21. 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
hisappointment as special administrator of the testators 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 testators 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 testators 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 courts 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. Theattestation 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.
22. ROXAS VS. DE JESUS
ASTER CARRILLO
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HOLLOGRAPHIC WILL
CC ART 810: A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made
in or out of the Philippines, and need not be witnessed.
DOCTRINE: As a general rule, the "date" in a holographic Will
should include the day, month, and year of its execution.
However, when there is no appearance of fraud, bad faith,
undue influence and pressure and the authenticity of the Will is
established, the Will should be allowed under the principle of
substantial compliance.
FACTS: After the death of spouses Andres and Bibiana,
petitioner Simeon (brother of Bibiana) was appointed
administrator. He then delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana.
Simeon testified that after his appointment as administrator, he
found a notebook belonging to the deceased Bibiana and that
on pages 21, 22, 23 and 24 thereof, a letter-will addressed to
her children and entirely written and signed in the handwriting of
the deceased Bibiana was found. 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.
The testimony of Simeon was corroborated/supported by the
testimonies of the children of the deceased spouses.They
further testified that their deceased mother understood English,
the language in which the holographic Will is written, and that
the date "FEB./61 " was the date when said Will was executed
by their mother
Respondent Luz another compulsory heir filed an "opposition to
probate" assailing the purported holographic Will of Bibiana
because (a) it was not executed in accordance with law, (b) it
was executed through force, intimidation and/or under duress,
undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have
intended the said Will to be her last Will and testament at the
time of its execution.
RTC RULING: Judge Jose Colayco issued an order allowing the
probate of the holographic w/c he found to have been duly
executed in accordance with law. But respondent Luz filed a MR
stating that the will was not dated as required by Article 810 of
the Civil Code. She contends that the law requires that the Will
should contain the day, month and year of its execution and that
this should be strictly complied with. Hence, Judge Colayco
disallowed the probate of the holographic Will on the
ground that the word "dated" has generally been held to
include the month, day, and year.
ISSUE: WON the date "FEB./61 on the will is a valid
compliance with the Article 810 of the Civil Code.
RULING: Yes. The petitioners contend that while Article 685 of
the Spanish Civil Code and Article 688 of the Old Civil Code
require the testator to state in his holographic Win the "year,
month, and day of its execution," the present Civil Code omitted
the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the
liberal construction of the holographic Will should prevail.
The prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary
privilege. 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.
Court found no evidence of bad faith and fraud in its execution
nor was there any substitution of Wills and Testaments. 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 the Will should be allowed under the principle of
substantial compliance
DISPOSITIVE: WHEREFORE, the instant petition is GRANTED.

The order appealed from is REVERSED and SET ASIDE and
the order allowing the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus is reinstated.
23. ROXAS VS. DE JESUS
ASTER CARRILLO
HOLLOGRAPHIC WILL-REQUISITES-DATED BY THE HAND
OF THE TESTATOR
CC ART 810: A person may execute a holographic Will which
must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made
in or out of the Philippines, and need not be witnessed.
DOCTRINE: A will that contains a date, although placed in an
unusual place, complies with the requirement that a will must be
dated. Provided that from the tenor of the whole instrument the
intent of the testator to create such will could be inferred.
FACTS: Melecio Labrador died and left behind a parcel of land.
He executed a holographic will. His son Sagrado filed a petition
for the probate of the alleged holographic Will of Melecio. Jesus
and Gaudencio (also sons) filed an opposition to the petition on
the gound that the will has been extinguished or revoked by
implication of law, alleging that before Melecio's death, testator
executed a Deed of Sale, transferring and conveying in favor of
oppositors the subject parcel of land. Jesus sold the land a third
person.
LOWER COURT RULING: The lower court allowed the probate
of the will and declared null and void the Deed of Sale.
So, Jesus and Gaudencia appealed to the CA with the following
contentions: - That the date 17 March 1968 in the will was when
the testator and his beneficiaries entered into an agreement
among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the
date of execution of the holographic will; that such date is not
located at the top but in the content of the document; hence,
such date is out of place and that the will is more of an
"agreement" between the testator and the beneficiaries thereof
to the prejudice of other compulsory heirs like the respondents.
CA RULING: The CA modified the judgment by denying the
allowance of the probate of the will for being undated.
ISSUE: WON the will of Melecio Labrador is dated, in
accordance with Art. 810 of the NCC.
RULING: Yes. The petition, which principally alleges that the
holographic will is really dated, although the date is not in its
usual place, is impressed with merit. The will has been dated in
the hand of the testator himself in perfect compliance with Article
810. 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. Respondents claim that the date 17 March 1968 in the
will was when the testator and his beneficiaries entered into an
agreement among themselves about "the partitioning and
assigning the respective assignments of the said fishpond," and
was not the date of execution of the holographic will; hence, the
will is more of an "agreement" between the testator and the
beneficiaries thereof to the prejudice of other compulsory heirs
like the respondents. This was thus a failure to comply with
Article 783 which defines a will as "an act whereby a person is
permitted, with the formalities prescribed by law, to control to a
certain degree the disposition of his estate, to take effect after
his death." Respondents are in error. The intention to show 17
March 1968 as the date of the execution of the will is plain from
the tenor of the succeeding words of the paragraph. As aptly put
by petitioner, the will was not an agreement but a unilateral act
of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration
that such partitioning as the testator's instruction or decision to
be followed reveal that Melecio Labrador was fully aware of the
nature of the estate property to be disposed of and of the
character of the testamentary act as a means to control the
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disposition of his estate.
DISPOSITIVE: WHEREFORE, the instant petition is GRANTED.

The order appealed from is REVERSED and SET ASIDE and
the order disallowing the probate of the holographic Will is
reversed.
24. Azaola v. Singson
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 testatrixs 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 testatrixs 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 6thday 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 8111 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
cannot 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.
25. Codoy v Calugay

August 12, 1999
G.R. No. 123486
Pardo, J:
Doctrine: The law stipulates a mandatory provision of shall that
at least three witnesses explicitly declare the signature in a
contested will as the genuine signature of the testator, is
mandatory or directory.
Law: Art. 811. 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.
Facts:
On 6 April 1990, Evangeline Calugay, Josephine
Salcedo and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seo 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 voters affidavit, but failed to as the
same was already destroyed and no longer available.
The third, the deceaseds niece, claimed that she had
acquired familiarity with the deceaseds 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 latters
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
Ramonals 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. Whether or not 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 deceaseds holographic
will.
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Held:
1.
2.
Ratio:
1.
2.
Topic: Insertions, Cancellations, Erasures and Alterations (Art.

814)
Yes, 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.
No, in the given case, the witnesses did not
sufficiently establish the authenticity and due
execution of the deceaseds holographic will.
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.
It 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 voters affidavit for verification as it was
no longer available. The deceaseds niece saw preprepared 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.
26. Kalaw vs Relova
Doctrine: When the holographic Will in dispute had only one

substantial provision, which was altered by substituting the
original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator,
the effect must be that the entire Will is voided or revoked for the
simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should
be given efficacy is to disregard the seeming change of mind of
the testatrix.
Facts:
On Sept 1971, herein private respondent, Gregorio
Kalaw, claiming to be the sole heir of his deceased Sister,
Natividad Kalaw, filed a petition for the probate of her
holographic will. But the proceeding was objected by one Rosa
Kalaw. It appears that the holographic will, as first written a)
named her (Rosa), also a sister of the testatrix as sole heir, and
that (b) she was also named as sole executrix. However, the will
appears to contain 2 alterations. First, Rosa's name, designated
as the sole heir was crossed out and instead "Rosario" was
written above it. Such was not initialed. Second, Rosa's name
was crossed out as sole executrix and Gregorio's name was
written above it. This alteration was initialed by the testator.
Thus, her opposition was based on the fact that the will
containing alterations, corrections, and insertion is without the
proper authentication by the fill signature of the testatrix as
required by Art. 814 w/c reads: In case of any insertion,
cancellation, erasure or alteration in a holographic will the
testator must authenticate the same by his full signature
She now argues that the holographic will, as first written,
should be given effect and probated so that she could be the
sole heir thereunder. TC denied petition to probate
Issue: WON the original unaltered text after subsequent
alterations and insertions were voided by the TC for lack of
authentication by the full signature of the testatrix, should be
probated or not, with Rosa as sole heir?
Held & Rationale: No. Generally, when a number of erasures,
corrections, cancellation, or insertions are made by the testator
in the will but the same have not been noted or authenticated
with his full signature, only the particular words erased,
corrected, altered will be invalidated, not the entirety of the will.
This general rule has exceptions, as in this case. When the
holographic will had only one substantial provision, which was
altered by substituting the original heir with another, and the
same did not carry the requisite full signature of the testator, or
simply put, where the change affects the essence of the will of
the testator, the entirety of the will is voided or revoked. 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.
Dispositive: Petition failed
Additional Important Note:
General Rules:
When a number of erasures, corrections, cancellation, or
insertions are made by the testator in the will but the same have
not been noted or authenticated with his full signature, only the
particular words erased, corrected, altered will be invalidated,
not the entirety of the will.
Exception:
1. Where the change affects the essence of the will of the
testator; Note: When the holographic will had only one
substantial provision, which was altered by substituting the
original heir with another, and the same did not carry the
requisite full signature of the testator, the entirety of the will is
voided or revoked.
Reason: What was cancelled here was the very essence of the
will; it amounted to the revocation of the will. Therefore, neither
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the altered text nor the original unaltered text can be given
effect. (Kalaw v. Relova, G.R. No. L-40207, Sept. 28, 1984)
2. Where the alteration affects the date of the will or the
signature of the testator.
3. If the words written by a 3rd person were contemporaneous
with the execution of the will, even though authenticated by the
testator, the entire will is void for violation of the requisite that
the holographic will must be entirely in the testators handwriting.
In a petition to admit a holographic will, the only issues to be

resolved are:
1.whether the instrument submitted is, indeed, the decedents
last will and testament;
2.whether said will was executed in accordance with the
formalities prescribed by law;
27. Ajero vs CA
3.whether the decedent had the necessary testamentary

capacity at the time the will was executed; and
Law: Undated dispositions (Art. 813) & Insertions,

Cancellations, Erasures and Alterations (Art. 814)
4.whether the execution of the will and its signing were the
voluntary acts of the decedent.
Doctrine: If the testator fails to sign and date some of the

dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole
testament void. Likewise, unless the authenticated alterations,
cancellations or insertions were made on the date of the
holographic will or on testators signature, their presence does
not invalidate the will itself. The lack of authentication will only
result in disallowance of such changes.
The object of the solemnities surrounding the execution of wills

is to close the door against bad faith and fraud; accordingly,
laws on this subject should be interpreted to attain these
primordial ends.
Facts: The holographic will of Annie San was submitted for

probate. Private respondent opposed the petition on the grounds
that: neither the testaments body nor the signature therein was
in decedents handwriting; it contained alterations and
corrections which were not duly signed by decedent; and, the
will was procured by petitioners through improper pressure and
undue influence. The petition was also contested by Dr. Ajero
with respect to the disposition in the will of a house and lot. He
claimed that said property could not be conveyed by decedent in
its entirety, as she was not its sole owner.
However, the trial court still admitted the decedents holographic
will to probate.
The TC held that since it must decide only the question of the
identity of the will, its due execution and the testamentary
capacity of the testatrix, it finds no reason for the disallowance
of the will for its failure to comply with the formalities prescribed
by law nor for lack of testamentary capacity of the testatrix. But
CA reversed this, holding that the decedent did not comply with
Arts 313 & 314. It found that certain dispositions in the will were
either unsigned or undated, or signed by not dated. It also found
that the erasures, alterations and cancellations made had not
been authenticated by decedent.
Issue: WON CA erred in holding that Arts 813 & 814 were not
complies with?
Held & Rationale: Yes. The requirements of Art 813 affects the
validity of the dispositions contained in the holographic will, but
not its probate. If the testator fails to sign and date some of the
dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole
testament void. Likewise, a holographic will can still be admitted
to probate notwithstanding non-compliance with the provisions
of Article 814. Unless the authenticated alterations, cancellations
or insertions were made on the date of the holographic will or on
testators signature, their presence does not invalidate the will
itself. The lack of authentication will only result in disallowance
of such changes.
In the case of holographic wills, what assures authenticity is the

requirement that they be totally authographic or handwritten by
the testator himself. Failure to strictly observe other formalities
will no result in the disallowance of a holographic will that is
unquestionable handwritten by the testator.
28. VDA. de Perez v Tolete
Topic: Conflict Rules on Formal Validity of Wills (Arts. 815,
816 and 817)
Doctrine: The rule that the court having jurisdiction over the
reprobate of a will shall "cause notice thereof to be given as in
case of an original will presented for allowance" (Revised Rules
of Court, Rule 27, Section 2) means that with regard to notices,
the will probated abroad should be treated as if it were an
"original will" or a will that is presented for probate for the first
time. Accordingly, compliance with Sections 3 and 4 of Rule 76,
which require publication and notice by mail or personally to the
"known heirs, legatees, and devisees of the testator resident in
the Philippines" and to the executor, if he is not the petitioner,
are required.
FACTS:
Dr. Jose Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who
became American citizens and residents of New York, each
executed a will also in New York, containing provisions on
presumption of survivorship (in the event that it is not known
which one of the spouses died first, the husband shall be
presumed to have predeceased his wife). Later, the entire family
perished in a fire that gutted their home. Thus, Rafael, who was
named trustee in Joses will, filed for separate probate
proceedings of the wills.
Later, Evelyns mother, Salud Perez, filed a petition for reprobate
in Bulacan. Rafael opposed, arguing that Salud was not an heir
according to New York law. He contended that since the wills
were executed in New York, New York law should govern. He
further argued that, by New York law, he and his brothers and
sisters were Joses heirs and as such entitled to notice of the
reprobate proceedings, which Salud failed to give.
It is also proper to note that he requirements of authentication of

changes and signing and dating of dispositions appear in
provisions (Article 813 and 814) separate from that which
provides for the necessary conditions for the validity of the
holographic will (Article 810).
For her part, Salud said she was the sole heir of her daughter,
Evelyn, and that the two wills were in accordance with New York
law. But before she could present evidence to prove the law of
New York, the reprobate court already issued an order,
disallowing the wills.
This separation and distinction adds support to the interpretation

that only the requirements of Article 810 of the NCC and not
those found in Articles 813 and 814 are essential to the
probate of a holographic will.
ISSUE: Whether or not the reprobate of the wills should be

allowed
Section 9, Rule 76 of the Rules of Court and Article 839 of the

Civil Code enumerate the grounds for disallowance of wills.
These lists are exclusive; no other grounds can serve to disallow
a will.
Extrinsic Validity of Wills of Non-Resident Aliens
HELD:
The respective wills of the Cunanan spouses, who were

American citizens, will only be effective in this country upon
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compliance with the following provision of the Civil Code of the
Philippines:
Art. 816. The will of an alien who is abroad produces effect in
the Philippines if made with the formalities prescribed by the law
of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this
Code prescribes.
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is imperative.
Evidence for Reprobate of Wills Probated outside the
Philippines
The evidence necessary for the reprobate or allowance of wills
which have been probated outside of the Philippines are as
follows: (1) the due execution of the will in accordance with the
foreign laws; (2) the testator has his domicile in the foreign
country and not in the Philippines; (3) the will has been admitted
to probate in such country; (4) the fact that the foreign tribunal is
a probate court, and (5) the laws of a foreign country on
procedure and allowance of wills (III Moran Commentaries on
the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95
Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for
the first and last requirements, the petitioner submitted all the
needed evidence.
The necessity of presenting evidence on the foreign laws upon
which the probate in the foreign country is based is impelled by
the fact that our courts cannot take judicial notice of them.
On Lack of Notice to Joses Heirs
This petition cannot be completely resolved without touching on
a very glaring fact - petitioner has always considered herself the
sole heir of Dr. Evelyn Perez Cunanan and because she does
not consider herself an heir of Dr. Jose F. Cunanan, she
noticeably failed to notify his heirs of the filing of the
proceedings. Thus, even in the instant petition, she only
impleaded respondent Judge, forgetting that a judge whose
order is being assailed is merely a nominal or formal party
(Calderon v. Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a
will shall "cause notice thereof to be given as in case of an
original will presented for allowance" (Revised Rules of Court,
Rule 27, Section 2) means that with regard to notices, the will
probated abroad should be treated as if it were an "original will"
or a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule 76, which
require publication and notice by mail or personally to the
"known heirs, legatees, and devisees of the testator resident in
the Philippines" and to the executor, if he is not the petitioner,
are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to
petitioner's claim, are entitled to notices of the time and place for
proving the wills. Under Section 4 of Rule 76 of the Revised
Rules of Court, the "court shall also cause copies of the notice of
the time and place fixed for proving the will to be addressed to
the designated or other known heirs, legatees, and devisees of
the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE.
Respondent Judge shall allow petitioner reasonable time within
which to submit evidence needed for the joint probate of the
wills of the Cunanan spouses and see to it that the brothers and
sisters of Dr. Jose F. Cunanan are given all notices and copies
of all pleadings pertinent to the probate proceedings.
SO ORDERED.
29. PAULA DE LA CERNA V. MANUELA REBACA-POTOT
DOCTRINE: Art 818 prohibits the execution of joint wills,
whether they be for the reciprocal benefit of the testators, or for
the benefit of a third person. However, it must be noted that if a
probate court erroneously admitted a joint will to probate, the
error thus committed would be considered an error of law and
not of jurisdiction. Therefore, such an error must be corrected by
appeal; failing which the erroneous decision would become final.

The foregoing notwithstanding, please note that in the following
case, the joint will, while deemed operative with respect to the
husband, was considered void as to the wife. The issue of
jurisdiction should be noted in particular.
FACTS: In May 1939, spouses Bernabe Dela Cerna and
Gervasia Rebaca, executed a joint last will and testament. The
joint will stated that:
a. The two parcels of lands acquired by the spouses during their
marriage will be given to Manuela Rebaca (niece)
b. While each of the testators is alive, he or she shall continue to
enjoy the fruits (usufruct) of the aforementioned properties.
Three months later, Bernabe dela Cerna died and the will was
submitted to probate by Gervasia and Manuela. Upon the death
of Gervasia, the will again was submitted for probate. CFI Cebu
refused the probate for being a void will, since it was in the
nature of a joint will which was prohibited by the Civil Code.
ISSUE: WON the joint will was valid
Held: No, the joint will was only valid with respect to the
properties of Bernabe.
RULING: The final decree of probate, entered in 1939 by CFI
Cebu (when the testator Bernabe died) has conclusive effect as
to his last will and testament despite the fact that the Civil Code
had already decreed the invalidity of joint wills. The error
committed by the probate court was an error of law, that should
have been corrected by an appeal, but which did not affect the
jurisdiction of the probate court, nor conclusive upon its final
decision however erroneous.
The probate decree in 1939 could only affect the share of the
deceased husband, Bernabe. It could not include the disposition
of the share of the wife, Gervasia, who was then still alive and
over whose interest in the conjugal properties the probate court
acquired no jurisdiction. This is because prior to the New Civil
Code, a will could not be probated during the testators lifetime.
It follows that the validity of the joint will, insofar as the estate of
the wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate
will of each testator. Thus, the decision of the CFI that the joint
will is probated by the law is correct as to the participation of the
deceased Gervasia as to the properties in question.
Therefore, the undivided interest of Gervasia should pass on her
death to her heirs intestate, and not exclusively to the
testamentary heir (Manuela), unless some other valid will in her
favor is shown to exist, or unless is the only intestate heir of
Gervasia.

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the RTC-Kabankalan admitted to probate the will of

RTC: the Last Will and Testament of Alipio Abada is admitted

surplusage. Petitioner's theory is that the cross is as much a

HELD: No, the will is not valid. The attestation clause is a

The probate of the will is denied. Respondent won.

14. AZUELA v. COURT OF APPEALS

Petitioner argues that there is no need for such recital because

FATALLY DEFECTIVE ATTESTATION CLAUSE

(2) Witnesses did not sign the Attestation Clause

ISSUE: Did the will acknowledged by the testatrix and the

2. We have held heretofore that compliance with the

17. GARCIA v GATCHALIAN

5. After due trial, the court rendered the appealed decision

19. Alvarado v. Gaviola

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

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

Thereafter, a codicil entitled Kasulatan ng Pagbabago ng Ilang

Whether or not notarial will of Brigido Alvarado should be

The rationale behind the requirement of reading the will to the

compliance with the substantial requirements of law in order to

DOCTRINE OF LIBERAL INTERPRETATION

Thereafter, the petitioners, claiming to be nephews and nieces

DISPOSITIVE: WHEREFORE, the instant petition is GRANTED.

DISPOSITIVE: WHEREFORE, the instant petition is GRANTED.

expert evidence to supply the deficiency. What the law deems

25. Codoy v Calugay

G.R. No. 123486

Topic: Insertions, Cancellations, Erasures and Alterations (Art.

26. Kalaw vs Relova

Doctrine: When the holographic Will in dispute had only one

In a petition to admit a holographic will, the only issues to be

3.whether the decedent had the necessary testamentary

Law: Undated dispositions (Art. 813) & Insertions,

Doctrine: If the testator fails to sign and date some of the

The object of the solemnities surrounding the execution of wills

Facts: The holographic will of Annie San was submitted for

In the case of holographic wills, what assures authenticity is the

It is also proper to note that he requirements of authentication of

This separation and distinction adds support to the interpretation

ISSUE: Whether or not the reprobate of the wills should be

Section 9, Rule 76 of the Rules of Court and Article 839 of the

Extrinsic Validity of Wills of Non-Resident Aliens

The respective wills of the Cunanan spouses, who were

appeal; failing which the erroneous decision would become final.

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