Sie sind auf Seite 1von 5

witness may have been present at the execution of a holographicwill, none being

required by law (Art. 810, new Civil Code), it becomes obvious that the existence of
AZAOLA vs SINGSON 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
Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957. Petitioner express) “that the will and the signature are in the handwriting of the testator”. There
submitted for probate her holographic will, in which Maria Azaola was made the sole may be no available witness of the testator’s hand; or even if so familiarized, the
heir as against the nephew, who is the defendant. Only one witness, Francisoco witnesses may be unwilling to give a positive opinion. Compliance with the rule of
Azaola, was presented to testify on the handwriting of the testatrix. He testified that paragraph 1 of Article 811 may thus become an impossibility.
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
This is the reason why the 2nd paragraph of Article 811 allows the court to resort to
the mortgage, the special power of the attorney, and the general power of attorney,
expert evidence. The law foresees the possibility that no qualified witness may be
and the deeds of sale including an affidavit to reinforce his statement. Two residence
found (or what amounts to the same thing, that no competent witness may be willing
certificates showing the testatrix’s signature were also exhibited for comparison
to testify to the authenticity of the will), and provides for resort to expert evidence to
supply the deficiency.

The probate was opposed on the ground that (1) the execution of the will was
What the law deems essential is that the court should be convinced of the will’s
procured by undue and improper pressure and influence on the part of the petitioner
authenticity. Where the prescribed number of witnesses is produced and the court is
and his wife, and (2) that the testatrix did not seriously intend the instrument to be
convinced by their testimony that the will is genuine, it may consider it unnecessary
her last will, and that the same was actually written either on the 5th or 6th day of
to call for expert evidence. On the other hand, if no competent witness is available, or
August 1957 and not on November 20, 1956 as appears on the will.
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
The probate was denied on the ground that under Article 811 of the Civil Code, the of inquiry, for the state is as much interested as the proponent that the true intention
proponent must present three witnesses who could declare that the will and the of the testator be carried into effect.
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.


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


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
CODOY vs CALUGAY 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
FACTS: mandatory or directory.

On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, 2. Whether or not the witnesses sufficiently establish the authenticity and due
devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de execution of the deceased’s holographic will.
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. HELD:

Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that 1. YES. The word “shall” connotes a mandatory order, an imperative obligation and is
the will was a forgery and that the same is even illegible. They raised doubts as inconsistent with the idea of discretion and that the presumption is that the word
regards the repeated appearing on the will after every disposition, calling the same “shall”, when used in a statute, is mandatory.
out of the ordinary. If the will was in the handwriting of the deceased, it was
improperly procured. 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
Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence. individuals who for their benefit will employ means to defeat the wishes of the
The first witness was the clerk of court of the probate court who produced and testator.
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 The paramount consideration in the present petition is to determine the true intent of
voter’s affidavit, but failed to as the same was already destroyed and no the deceased.
longer available.
2. NO. We cannot be certain that the holographic will was in the handwriting of the
The third, the deceased’s niece, claimed that she had acquired familiarity with the deceased.
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
The clerk of court was not presented to declare explicitly that the signature appearing
issued receipts. The niece also testified that the deceased left a holographic will
in the holographic will was that of the deceased.
entirely written, dated and signed by said deceased.

The election registrar was not able to produce the voter’s affidavit for verification as it
The fourth witness was a former lawyer for the deceased in the intestate proceedings
was no longer available.
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 deceased’s niece saw pre-prepared receipts and letters of the deceased and did
not declare that she saw the deceased sign a documentor write a note.
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 will was not found in the personal belongings of the deceased but was in the
the deceased since birth where she had become familiar with her signature and that possession of the said niece, who kept the fact about the will from the children of the
the one appearing on the will was genuine. deceased, putting in issue her motive.

Codoy and Ramonal’s demurrer to evidence was granted by the lower court. It was Evangeline Calugay never declared that she saw the decreased write a note or sign
reversed on appeal with the Court of Appeals which granted the probate. a document.

ISSUE: 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
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

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.


Petitioners and respondents are the neices/nephews or Adriana Maloto who died in
1963. The four heirs believed that the deceased did not leave a will, hesnce they filed
an intestate proceeding. However, the parties executed an extrajudicial settlement of
the estate dividing it into four equal parts. In 1967, Atty. Sulpicio Palma, ex-associate
of the deceased's counsel allegedly discovered her last will which was purportedly
dated 1940, inside a cabinet. Hence the annulment of the proceedings and a probate
petition was filed by the devisees and legatees. The said will was allegedly burned by
the househelp under the instruction of the deceased. The lower court denied the
probate on the ground that the animus revocandi in the burning of the will was
sufficiently proven.


Whether or not there was valid revocation of the will


No, there was no revocation. For a valid revocation to occur,the 'corpus' and
'animus' must concur, one without the other will not produce a valid revocation. The
physical act of destruction of a will must come with an intention to revoke (animus
revocandi). In this case, there's paucity of evidence to comply with the said
requirement. The paper burned was not established to be the will and the burning
though done under her express direction was not done in her presence.

Under Art. 830, the physical act of destruction, in this case the burning of the will,
does not constitute an effective revocation, unless it is coupled with animus
revocandi on the part of the testator. Since animus is a state of mind, it has to be
accompanied by an overt physical act of burning, tearing, obliterating or cancelling
done by the testator himself or by another under his express direction and presence.


Previously, Francisco Gago filed a petition for the probate of a will of Miguel
Mamuyac executed on July 27, 1918. The oppositors alleged that the said will was
already annulled and revoked. It appeared that on April 16, 1919, the deceased
executed another will. The lower court denied the probate of the first will on the
ground of the existence of the second will. Another petition was filed to seek the
probate of the second will. The oppositors alleged that the second will presented was
merely a copy. According to the witnesses, the said will was allegedly revoked as per
the testimony of Jose Tenoy, one of the witnesses who typed the document. Another
witness testified that on December 1920 the original will was actually cancelled by the
testator. The lower court denied the probate and held that the same has been
annulled and revoked.

Whether or not there was a valid revocation of the will

Yes. The will was already cancelled in 1920. This was inferred when after due search,
the original will cannot be found. When the will which cannot be found in shown to
be in the possession of the testator when last seen, the presumption is that in the
absence of other competent evidence, the same was deemed cancelled or destroyed.
The same presumption applies when it is shown that the testator has ready access to
the will and it can no longer be found after his death.