Testamentary Capacity and Intent (2) After the death of one of them, the same shall belong to and
th of one of them, the same shall belong to and be the sole
1. Vitug v. CA
Doctrine:
The conveyance in question is not, first of all, one of mortis causa, which
should be embodied in a will. A will has been defined as "a personal,
solemn, revocable and free act by which a capacitated person disposes of
his property and rights and declares or complies with duties to take effect
after his death." 14 In other words, the bequest or device must pertain to
the testator. 15 In this case, the monies subject of savings account No.
35342-038 were in the nature of conjugal funds
Survivorship agreements are permitted by the Civil Code.
Although the survivorship agreement is per se not contrary to law its
operation or effect may be violative of the law. For instance, if it be shown
in a given case that such agreement is a mere cloak to hide an inofficious
donation, to transfer property in fraud of creditors, or to defeat the
legitime of a forced heir, it may be assailed and annulled upon such
grounds. No such vice has been imputed and established against the
agreement involved in this case.
There is no demonstration here that the survivorship agreement had been
executed for such unlawful purposes, or, as held by the respondent court,
in order to frustrate our laws on wills, donations, and conjugal
partnership.
FACTS:
1. Spouses Dolores and Romarico Vitug entered into a survivorship
agreement with the Bank of American National Trust and Savings
Association. The said agreement contained the following stipulations:
(1) All money deposited and to be deposited with the Bank in their joint
savings current account shall be both their property and shall be payable
to and collectible or withdrawable by either or any of them during their
lifetime; and
property of the surviving spouse and payable to and collectible or
withdrawable by such survivor
2. Dolores died naming Rowena Corona in her wills as executrix.
3. Romarico later filed a motion asking authority to sell certain shares of
stock and real property belonging to the estate to cover his advances to the
estate which he claimed were personal funds withdrawn from their savings
account.
4. Rowena opposed on the ground that the same funds withdrawn from
the savings account were conjugal partnership properties and part of the
estate.
5. Hence, there should be no reimbursement.
6. On the other hand, Romarico insists that the same are his exclusive
property acquired through the survivorship agreement.
LC: The trial court upheld the validity of the agreement and granted the
motion to sell some of the property.
CA: The Court of Appeals however held that the survivorship agreement
constitutes a conveyance mortis causa which did not comply with the
formalities of a valid will under Article 805 of the Civil Code.
ISSUE: Whether the Survivorship Agreement constitutes a conveyance
mortis causa, hence must comply with the formalities of a will
HELD: No.
The Court ruled that a Survivorship Agreement in the nature of an
aleatory contract whereby one or both of the parties reciprocally bind
themselves to give or to do something in consideration of what the other
shall give or do upon the happening of an event which is to occur at an
indeterminate time or is uncertain, such as death. A will has been defined
as “a personal, solemn, revocable, and free act by which a capacitated
person disposes of his property and rights and declares or complies with
duties to take effect after his death. The bequest or device must pertain to
the testator. In this case, the monies subject of the savings account were
in the nature of conjugal funds, therefore not only belonging to one party.
Moreover, they did not dispose of the property in favor of the other, which
would have been a form of prohibited donation. The spouses merely put
what rightfully belonged to them in a money-making venture.

A survivorship agreement is per se not contrary to law and thus is valid

unless its operation or effect may be violative of a law such as in the
following instances: (1) it is used as a mere cloak to hide an inofficious
donation; (2) it is used to transfer property in fraud of creditors; or (3) it is
used to defeat the legitime of a compulsory heir. In the instant case, none
of the foregoing instances were present. Consequently, the Court upheld
the validity of the survivorship agreement entered into by the spouses
Vitug. As such, Romarico, being the surviving spouse, acquired a vested
right over the amounts under the savings account, which became his
exclusive property upon the death of his wife pursuant to the survivorship
agreement. Thus, the funds of the savings account are not conjugal
partnership properties and not part of the estate of the deceased Dolores.
2. Suroza v Honrado
Doctrines:
Administrative action may be taken against a judge of the court of first
instance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law).
Misconduct implies malice or a wrongful intent, not a mere error of
judgment. "For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt or
inspired by an intention to violate the law, or were in persistent disregard
of well-known legal rules.
Inefficiency implies negligence, incompetence, ignorance and carelessness.
A judge would be inexcusably negligent if he failed to observe in the
performance of his duties that diligence, prudence and circumspection
which the law requires in the rendition of any public service.
In the opening paragraph of the will, it was stated that English was a
language "understood and known" to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language". (p. 16, Record of testate case). That
could only mean that the will was written in a language not known to the
illiterate testatrix and, therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that every will must be executed
in a language or dialect known to the testator. Thus, a will written in
English, which was not known to the Igorot testator, is void and was
disallowed.
Trial judge should have observed the hasty preparation of the will which
repeatedly referred to the testatrix as “testator."—The hasty preparation of
the will is shown in the attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly referred to as the “testator”
instead of “testatrix”. Had respondent judge been careful and observant,
he could have noted not only the anomaly as to the language of the will
but also that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her supposed
father who was still alive.
Judge should have noticed that the notary was not presented.—
Furthermore, after the hearing conducted by respondent deputy clerk of
court, respondent judge could have noticed that the notary was not
presented as a witness.
Probate judge should personally conduct hearing of will in spite of lack of
opposition. Judge fined the equivalent of 1, month’s salary.—In spite of
the absence of an opposition, respondent judge should have personally
conducted the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed. Under the
circumstances, we find his negligence and dereliction of duty to be
inexcusable.
FACTS:
1. Marcelina Suroza supposedly executed a notarial will bequeathing
her house and lot to certain Marilyn Suroza. Marcelina died in
1974.
2. Marina Paje was named as executrix in the said will and she
petitioned before CFI Rizal that the will be admitted to probate.
3. Judge Honrado admitted the will to probate and assigned to Paje
as the administratix. Honrado also issued an ejectment order
against the occupants of the house and lot subject of the will.
4. Nenita Suroza, daughter in law of Marcelina, learned of the probate
proceeding when she received the ejectment order (as she was
residing in the house and lot).
5. Nenita opposed the probate proceeding. She alleged that the
notarial will is void because of the following grounds:
a. The instituted heir therein Marilyn Suroza is actually Marilyn
Sy and she is a stranger to Marcelina;
b. The only son of Marcellina, Agapito, is still alive and is
compulsory heir;
c. The notarial will is written in English, a language not know to
Marcelina because the latter was illiterate so much that she
merely thumbarked the will; and
d. The notary public who notarized will admitted that Marcelina
never appeared before him and that he notarized the said will
merely to accommodate the request of a lawyer friend but with
 the understanding that Marcelina should later appear before criminally liable for knowingly rendering an unjust judgment or
him but that never happened. interlocutory order or rendering a manifestly unjust judgment or
interlocutory order by reason of inexcusable negligence or
6. Honrado still continued with the probate despite the opposition
ignorance.
until testamentary proceeding closed and the property transferred
to Marilyn Sy.

7. Nenita then filed this administrative case against Honrado on the

ground of misconduct.

LC:

CA:

ISSUE:

WON the will is valid.

HELD: NO. The will is void. The mandatory provision of Article 804 of the
Civil Code provides that every will must be executed in a language or
dialect known to the testator. In the case at bar, the will is written in
English and was thumb marked by an obviously illiterate Marcelina. This
could have readily been perceived by Honrado that that the will is void. In
the opening paragraph of the will, it was stated that English was a
language “understood and known” to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix “and
translated into Filipino language.” That could only mean that the will was
written in a language not known to the illiterate testatrix.

NOTE:

A judge may be criminally liable for knowingly rendering an unjust

judgment. Administrative action may be taken against a judge of court of
first instance for serious misconduct or inefficiency.

The Supreme Court said in the case at bar that had Honrado been
careful and observant, he could have noted not only the anomaly
as to the language of the will but also that there was something
wrong in instituting to Marilyn Sy as sole heiress and giving
nothing at all to Agapito who was still alive. Despite the valid claim
raised by Nenita, he still continued with the testamentary 3. Seangio v. Reyes
proceeding, this showed his wrongful intent. He may even be
Doctrines:
For disinheritance to be valid, Article 916 of the Civil Code requires that
the same must be effected through a will wherein the legal cause therefor
shall be specified; Maltreatment of a parent by a child presents a sufficient
cause for the disinheritance of the latter.
A holographic will 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.
It is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be
recognized as the supreme law in succession; Holographic wills, being
usually prepared by one who is not learned in the law, should be
construed more liberally than the ones drawn by an expert, taking into
account the circumstances surrounding the execution of the instrument
and the intention of the testator.
The law favors testacy over intestacy, and testate proceedings for the
settlement of the estate of the decedent take precedence over intestate
proceedings; The probate of a will cannot be dispensed with.
FACTS:
1. There was a petition for the probate of an alleged holographic will
which was denominated as “Kasulatan sa pag-aalis ng mana.”
2. The private respondents moved for the dismissal of the probate
proceedings primarily on the ground that the document purporting
to be the holographic will of Segundo did not contain any
disposition of the estate of the deceased and thus did not meet the
definition of a will under Article 783 of the Civil Code.
3. According to private respondents, the will only showed an alleged
act of disinheritance by the decedent of his eldest son, Alfredo, and
nothing else;
4. that all other compulsory heirs were not named nor instituted as
heir, devisee or legatee, hence there was preterition which would
result to intestacy.
5. Private respondents maintained that while procedurally the court
is called upon to rule only on the extrinsic validity of the will, it is
not barred from delving into the intrinsic validity of the same, and
ordering the dismissal of the petition for probate when on the face
of the will it is clear that it contains no testamentary disposition of
the property of the decedent.
6. Petitioners filed their opposition to the motion to dismiss
contending that:
(1) generally, the authority of the probate court is limited only to a
determination of the extrinsic validity of the will;
(2) private respondents question the intrinsic and not the extrinsic
validity of the will;
(3) disinheritance constitutes a disposition of the estate of a
decedent; and
(4) the rule on preterition did not apply because Segundo’s will did
not constitute a universal heir or heirs to the exclusion of one or
more compulsory heirs.
LC: The RTC issued an order dismissing the petition for probate
proceedings, hence, a petition for certiorari was filed by petitioners.
Issue:
Whether the document executed by Segundo can be considered as a
holographic will.
Held: YES
The questioned will is a holographic will. Testate proceedings for the
settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.
 A holographic will, as provided under Article 810 of the Civil Code,
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.
 The document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic
will prescribed by law. It is written, dated and signed by the hand of the
testator himself. An intent to dispose mortis causa (Article 783) can be
clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latter’s property, the
disinheritance of the son nonetheless, is an act of disposition in itself.
 In other words, the disinheritance results in the disposition of the
property of the testator in favor of those who would succeed in the
absence of the eldest son.

 It is a fundamental principle that the intent or the will of the testator,

expressed in the form and within the limits prescribed by law, must be
recognized as the supreme law in succession. All rules of construction
are designed to ascertain and give effect to that intention. It is only
when the intention of the testator is contrary to law, morals, or public
policy that it cannot be given effect.

 Holographic wills usually prepared by one who is not learned in the law
should be construed more liberally than the ones drawn by an expert,
taking into account the circumstances surrounding the execution of the
instrument and the intention of the testator. In this regard, the
document, even if captioned as Kasulatan ng Pag-alis ng Mana, was
intended by the testator to be his last testamentary act and was
executed by him in accordance with law in the form of a holographic
will. Unless the will is probated, the disinheritance cannot be given
effect.

4. ORTEGA v. VALMONTE
DOCTRINES: 3. dated June 15, 1983 but acknowledged only on August 9, 1983

The party challenging the will bears the burden of proving the existence of
fraud at the time of its execution; The burden to show otherwise shifts to
the proponent of the will only upon a showing of credible evidence of The first page contains the:
fraud.
1. entire testamentary dispositions and a
The omission of some relatives does not affect the due execution of a will.
2. part of the attestation clause, and was
The conflict between the dates appearing on the will does not invalidate
3. signed at the end or bottom of that page by the testator and on the left
the document because the law does not even require that a notarial will be
hand margin by the three instrumental witnesses
executed and acknowledged on the same occasion.
• The second page contains the:
The testimonies of the three subscribing witnesses and the notary are
credible evidence of its due execution. 1. continuation of the attestation clause and the acknowledgment, and
was
To be considered of sound mind, things that the testator must have the
ability to know. 2. signed by the witnesses at the end of the attestation clause and again
on the left hand margin
Testamentary incapacity does not necessarily require that a person shall
actually be insane or of unsound mind. • It provides in the body among others that:

FACTS: - He was 83 years old and being of sound and disposing mind and
memory as he declared his last will and testament
1. Placido lived for a long time in the United States • In 1980, Placido
finally came home to stay in the Philippines

2. He lived in the house and lot in Makati, which he owned in
common with his sister Ciriaca Valmonte and it was titled in their names
[TCT 123468].
3. At the age of 80 he wed Josefina who was then 28 years old, which
was solemnized by Judge Perfecto Laguio, Jr. [February 5, 1982]
• Leticia opposed the allowance of the will and one of the grounds was
that:
- The testator was mentally incapable to make a will at the time of
the alleged execution he being in an ADVANCE STATE OF SENILITY

4. But Placido died on October 8, 1984 of a cause written down as

COR PULMONALE. • Petitioner Josefina testified and called as witnesses:

5. Placido executed a notarial last will and testament: 1. notary public Atty. Floro Sarmiento, who prepared and notarized the
will, and
1. written in English and
2. instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez
2. consisting of two (2) pages, and and Josie Collado
• For the opposition, the oppositor Leticia and her daughter Mary Jane
Ortega testified.
According to Josefina:
A. It was in one of his travels by his lonesome self when the notarial will
was made.
• The will was witnessed by the:
1. spouses Eugenio and Feliza Gomez, who were their wedding sponsors,
and
2. Josie Collado
B. She had no knowledge of the existence of the last will and testament of
her husband, but just serendipitously found it in his attache case after his
death.
C. The value of property both real and personal left by the testator is
worth more or less P100,000.00.
D. The testator never suffered mental infirmity because despite his old
age:
1. he went alone to the market which is two to three kilometers from their
home
2. cooked and cleaned the kitchen and sometimes if she could not
accompany him
3. even traveled to Manila alone to claim his monthly pension
4. her husband was in good health and that he was hospitalized only
because of a cold but which eventually resulted in his death
Notary Public Floro Sarmiento, the notary public who notarized the
testator’s will, testified:
1. it was in the first week of June 1983 when the testator together with the
three witnesses of the will went to his house cum law office and requested
him to prepare his last will and testament
2. after the testator instructed him on the terms and dispositions he
wanted on the will, the notary public told them to come back on June 15,
1983 to give him time to prepare it
3. after he had prepared the will the notary public kept it safely hidden
and locked in his drawer
4. the testator and his witnesses returned on the appointed date but the
notary public was out of town so they were instructed by his wife to come
back on August 9, 1983, and which they did.
5. before the testator and his witnesses signed the prepared will, the
notary public explained to them each and every term thereof in Ilocano, a
dialect which the testator spoke and understood
6. explained that though it appears that the will was signed by the testator
and his witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was actually
on August 9, 1983
7. reasoned that he no longer changed the typewritten date of June 15,
1983 because he did not like the document to appear dirty.
8. to his observation the testator was physically and mentally capable at
the time he affixed his signature on the will
Attesting witnesses to the will corroborated the testimony of the notary
public, testifying that the:
- testator executed the will in question in their presence while he was of
sound and disposing mind and that he was strong and in good health
Oppositor Leticia attacked the mental capacity of the testator, declaring
that at the time of the execution of the notarial will the testator:
1. was already 83 years old and
2. was no longer of sound mind
• She knew because she lived with him and they took care of him.
• During that time, the testator’s physical and mental condition showed
1. deterioration,
2. aberrations and
3. senility
• This was corroborated by her daughter Mary Jane Ortega for whom
Placido took a fancy and wanted to marry.
ISSUE:
W/N Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will as he was then in an ADVANCED STATE OF
SENILITY [physical and mental infirmity of old age] YES
In determining the capacity of the testator to make a will, the Civil Code
gives the following guidelines:
"Article 798. In order to make a will it is essential that the testator be of
sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will
to know the:
1. nature of the estate to be disposed of, the
2. proper objects of his bounty, and the
3. character of the testamentary act.
"Article 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the
will; but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the validity of the
will must prove that the testator made it during a lucid interval."
• Article 799, the three things that the testator must have the ability to
know to be considered of sound mind are as follows:
(1) the nature of the estate to be disposed of,
(2) the proper objects of the testator’s bounty, and
(3) the character of the testamentary act.
• Applying this test to the present case, Placido had testamentary capacity
at the time of the execution of his will.
• It must be noted that:
1. despite his advanced age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even
their locations
2. as regards the proper objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary

• As we have stated earlier, the omission of some relatives from the will did
not affect its formal validity.

• There being no showing of fraud in its execution, intent in its disposition

becomes irrelevant.

5. Abangan v. Abangan

Doctrines:

In a will consisting of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation clause and is
signed also at the bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by the testator and the
witnesses, or be paged.
SIGNATURE.—The testator's signature is not necessary in the attestation
clause because this, as its name implies, appertains only to the witnesses
and not to the testator.
DIALECT IN WHICH WRITTEN; PRESUMPTION.—The circumstance
appearing in the will itself that same was executed in the city of Cebu and
in the dialect of this locality where the testatrix was a neighbor is enough,
in the absence of any proof to the contrary, to presume that she knew this
dialect in which her will is written.
1. On September 19, 1917, the CFI of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponent's
appealed.
2. Said document, duly probated as Ana Abangan's will, consists of
two sheets, the first of which contains all of the disposition of the testatrix,
duly signed at the bottom by Martin Montalban (in the name and under
the direction of the testatrix) and by three witnesses.
ISSUE: The following sheet contains only the attestation clause duly
signed at the bottom by the three instrumental witnesses. Neither of these
sheets is signed on the left margin by the testatrix and the three
witnesses, nor numbered by letters; and these omissions, according to
appellants' contention, are defects whereby the probate of the will should
have been denied.
HELD: We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on
the left margin by the testator and three witnesses in the presence of each
other, Act No. 2645 (which is the one applicable in the case) evidently has
for its object (referring to the body of the will itself) to avoid the
substitution of any of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly written on only one
sheet signed at the bottom by the testator and three witnesses (as the
instant case), their signatures on the left margin of said sheet would be
completely purposeless.
In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets
and must have referred to the sheets which the testator and the witnesses
do not have to sign at the bottom. A different interpretation would assume
that the statute requires that this sheet, already signed at the bottom, be
signed twice. We cannot attribute to the statute such an intention. As
these signatures must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at the bottom of
the sheet guaranties its authenticity, another signature on its left margin
would be unneccessary; and if they do not guaranty, same signatures,
affixed on another part of same sheet, would add nothing.
In requiring that each and every page of a will must be numbered
correlatively in letters placed on the upper part of the sheet, it is likewise
clear that the object of Act No. 2645 is to know whether any sheet of the
will has been removed. Exception: when all the dispositive parts of a will
are written on one sheet only.
What has been said is also applicable to the attestation clause.
Synthesizing our opinion, we hold that in a will consisting of two
sheets the first of which contains all the testamentary dispositions and is
signed at the bottom by the testator and three witnesses and the second
contains only the attestation clause and is signed also at the bottom by
the three witnesses, it is not necessary that both sheets be further signed
on their margins by the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a way as to attain
these primordal 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 of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and
frustative of the testator's last will, must be disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do not

show that the testarix knew the dialect in which the will is written. But the
circumstance appearing in the will itself that same was executed in the
city of Cebu and in the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the contrary, to
presume that she knew this dialect in which this will is written.

7. Caponong-Noble v. Abaja

DOCTRINES:

Attestation Clause; A will, should not be rejected where its

attestation clause serves the purpose of the law.
 A will, should not be rejected where its attestation clause serves the
Evidence aliunde not allowed to fill void in any part of the purpose of the law.
document or supply missing details. They only permit a probe into
the will, an exploration within its confines, to ascertain its meaning Under the Code of Civil Procedure, the intervention of a notary is not
necessary in the execution of any will.
or to determine the existence or absence of the requisite formalities
of law.
SUBSTANTIAL COMPLIANCE: If the surrounding circumstances point to a
regular execution of the will, and the instrument appears to have been
Precision of language in the drafting of the
executed substantially in accordance with the requirements of the law, the
attestation clause is desirable, but not imperative.—Precision of
inclination should, in the absence of any suggestion of bad faith, forgery or
language in the drafting of an attestation clause is desirable. fraud, lean towards its admission to probate, although the document may
However, it is not imperative that a parrot-like copy of the words of suffer from some imperfection of language, or other non-essential defect.
the statute be made. It is sufficient if from the language employed
it can reasonably be deduced that the attestation clause fulfills APPLICABLE LAW: 809
what the law expects of it.
FACTS
- Abada died sometime in May 1940. His widow Paula Toray (Toray)
Testate Estate of the Late Alipio Abada vs. Abaja died sometime in September 1943. Both died without legitimate
G.R. No. 147145. January 31, 2005 children.
Digest Author : Daguinod, Ericka - Respondent Alipio C. Abaja filed with the then Court of First
Edited by : Angelette Bulacan Instance of Negros Occidental (now RTC-Kabankalan) a petition for
(Additions are in blue) the probate of the last will and testament of Abada.
- Abada allegedly named as his testamentary heirs his natural
Petitioner/s : TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA children Eulogio Abaja and Rosario Cordova. Alipio is the son of
CAPONONG-NOBLE Eulogio.
Respondent/s : ALIPIO ABAJA and NOEL ABELLAR - Nicanor Caponong opposed the petition on the ground that Abada
left no will when he died in 1940. Caponong further alleged that
Decedent Alipio Abada the will, if Abada really executed it, should be disallowed for the
Eulogio Abaja and Rosario following reasons: (1) it was not executed and attested as required
Cordova. Alipio is the son of by law; (2) it was not intended as the last will of the testator; and
Heirs Eulogio. (3) it was procured by undue and improper pressure and influence
Relationship Natural children on the part of the beneficiaries
Property/Right/Ob - Citing the same grounds invoked by Caponong, the alleged
inherited Not mentioned intestate heirs of Abada also opposed the petition. The oppositors
Type are the nephews, nieces and grandchildren of Abada and Toray.
(Testate/Intestate/Mixe - Alipio filed another petition before the RTC-Kabankalan for the
d) Testate-NOTARIAL WILL probate of the last will and testament of Toray.
- The oppositors opposed the petition citing the same grounds they
cited in the first proceeding.
DOCTRINE:
- The RTC-Kabankalan admitted to probate the will of Toray. Since
the oppositors did not file any motion for reconsideration, the order
(COMMON REQUISITE) : There is no statutory requirement to state in the
allowing the probate of Toray’s will became final and executory.
will itself that the testator knew the language or dialect used in the will.
- In an order dated 23 November 1990, the RTC- Kabankalan
designated Belinda petitioner Caponong-Noble (Caponong-Noble)
(NOTARIAL WILL REQUISITE)
 Special Administratrix of the estate of Abada and Toray.
- Caponong-Noble moved for the dismissal of the petition for probate
of the will of Abada.
- The RTC-Kabankalan ruled on the only issue raised by the
oppositors in their motions to dismiss the petition for probate, that
is, whether the will of Abada has an attestation clause as required
by law. The RTC- Kabankalan further held that the failure of the
oppositors to raise any other matter forecloses all other issues.
Resolution of the RTC: the Last Will and Testament of Alipio Abada
dated June 4, 1932 is admitted and allowed probate.
Petitioner’s Contentions on appeal:
- Further, she maintains that the will is not acknowledged before a
notary public
CA: Affirmed the resolution of the lower court.
ISSUE:
1. Whether the will requires the acknowledgement before the notary
public-NO
2. Whether the attestation clause complies with the requirements of the
applicable law-YES (substantial compliance)
RULING + RATIO:
The contentions of the petitioner Caponong-Noble are anchored on Articles
804 and 806 of the New Civil Code.
Art. 804. Every will must be in writing and executed in [a] language or
dialect known to the testator. (COMMON REQUISITE)
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. (NOTARIAL WILL REQUIREMENT)
However, Abada executed his will on 4 June 1932. The laws in force
at that time are the Civil Code of 1889 or the Old Civil Code, and Act
No. 190 or the Code of Civil Procedure which governed the execution
of wills before the enactment of the New Civil Code.
Under 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;(COMMON REQUISITE)
(The rest are NOTARIAL WILL REQUIREMENT under the NCC)
(2) The will must be signed by the testator, or by the testator’s 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 of
the will 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 pages of the will in the
presence of the testator and of each other.
ISSUE 1
1. Under the Code of Civil Procedure, the intervention of a notary is
not necessary in the execution of any will.
Art. 685 of the CC provides that: The notary and two of the
witnesses who authenticate the will must be acquainted with the
testator, or, should they not know him, he shall be identified by two
witnesses who are acquainted with him and are known to the notary
and to the attesting witnesses. The notary and the witnesses shall also
endeavor to assure themselves that the testator has, in their judgment,
the legal capacity required to make a will.
Witnesses authenticating a will without the attendance of a notary, in
cases falling under Articles 700 and 701, are also required to know the
testator.
However, the Code of Civil Procedure22 repealed Article 685 of the Old
Civil Code. Under the Code of Civil Procedure, the intervention of a
notary is not necessary in the execution of any will.
Therefore, Abada’s will does not require acknowledgment before a
notary public.
ISSUE 2
2. The attestation clause despite not indicating the number of
witnesses substantial complied with the requirements
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 Abada’s will. Abada’s 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 the witnesses is answered by an examination
of the will itself and without the need for presentation of evidence
aliunde.

If the surrounding circumstances point to a regular execution of the will,

and the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud, lean towards its
admission to probate, although the document may suffer from some
imperfection of language, or other non-essential defect.

An attestation clause is made for the purpose of preserving, in permanent

form, a record of the facts attending the execution of the will, so that in
case of failure of the memory of the subscribing witnesses, or other
casualty, they may still be proved. A will, therefore, should not be rejected
where its attestation clause serves the purpose of the law.

Precision of language in the drafting of an attestation clause is

desirable. However, it is not imperative that a parrot-like copy of the
words of the statute be made. It is sufficient if from the language
employed it can reasonably be deduced that the attestation clause
fulfills what the law expects of it.

PAYAD v TOLENTINO

DOCTINES:

ATTESTATION CLAUSE; TESTATOR'S SIGNATURE.

—It was not necessary that the attestation clause in question
should state that the testatrix requested Attorney A to sign her
name inasmuch as the testatrix signed the will in question in
accordance with law.

TESTATOR'S MARK.—"A statute requiring a will to be 'signed' is

satisfied if the signature is made by the testator's mark."