Vitug v.

CA

G.R. No. 82027, March 29, 1990

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

(2) After the death of one of them, the same shall belong to and be the sole property of the
surviving spouse and payable to and collectible or withdrawable by such survivor

Dolores died naming Rowena Corona in her wills as executrix. 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withdrawn from their savings account. Rowena opposed on the ground that the same
funds withdrawn from the savings account were conjugal partnership properties and part
of the estate. Hence, there should be no reimbursement. On the other hand, Romarico
insists that the same are his exclusive property acquired through the survivorship
agreement.

ISSUE: Whether or not the funds of the savings account subject of the survivorship
agreement were conjugal partnership properties and part of the estate

No. The Court ruled that a Survivorship Agreement is neither a donation mortis causanor
a donation inter vivos. It is 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. The Court further ruled that 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.
G.R. No. L-1787 August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.

Tirona, Gutierrez and Adorable for appellant.

Ramon Diokno for appellee.

TUASON, J.:

In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what
purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the document in question was
executed. In the court below, the present appellant specified five grounds for his opposition, to wit:
(1) that the deceased never executed the alleged will; (2) that his signature appearing in said will
was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well
as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not
executed and attested as required by law, and one of the alleged instrumental witnesses was
incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue
and improper pressure and influence on the part of the beneficiaries instituted therein, principally the
testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That the
court a quo erred in holding that the document Exhibit "A" was executed in all particulars as required
by law." To this objection is added the alleged error of the court "in allowing the petitioner to
introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner
rested his case and over the vigorous objection of the oppositor.

The will in question comprises two pages, each of which is written on one side of a separate sheet.
The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a
fatal defect.

The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means
of preventing the substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40
Phil., 476.) In the present case, the omission to put a page number on the first sheet, if that be
necessary, is supplied by other forms of identification more trustworthy than the conventional
numerical words or characters. The unnumbered page is clearly identified as the first page by the
internal sense of its contents considered in relation to the contents of the second page. By their
meaning and coherence, the first and second lines on the second page are undeniably a
continuation of the last sentence of the testament, before the attestation clause, which starts at the
bottom of the preceding page. Furthermore, the unnumbered page contains the caption
"TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his
testamentary faculty, — all of which, in the logical order of sequence, precede the direction for the
disposition of the marker's property. Again, as page two contains only the two lines above
mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the
other sheet can not by any possibility be taken for other than page one. Abangan vs.
Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue.

Although not falling within the purview and scope of the first assignment of error, the matter of the
credibility of the witnesses is assailed under this heading. On the merits we do not believe that the
appellant's contention deserves serious consideration. Such contradictions in the testimony of the
instrumental witnesses as are set out in the appellant's brief are incidents not all of which every one
of the witnesses can be supposed to have perceived, or to recall in the same order in which they
occurred.

Everyday life and the result of investigations made in the field of experimental psychology
show that the contradictions of witnesses generally occur in the details of a certain incident,
 after a long series of questioning, and far from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their testimony. (People vs. Limbo, 49
Phil., 99.)

The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this
was that the testator was suffering from "partial paralysis." While another in testator's place might
have directed someone else to sign for him, as appellant contends should have been done, there is
nothing curious or suspicious in the fact that the testator chose the use of mark as the means of
authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring
a will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs.
Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

With reference to the second assignment of error, we do not share the opinion that the trial court
communicated an abuse of discretion in allowing the appellant to offer evidence to prove knowledge
of Spanish by the testator, the language in which the will is drawn, after the petitioner had rested his
case and after the opponent had moved for dismissal of the petition on the ground of insufficiency of
evidence. It is within the discretion of the court whether or not to admit further evidence after the
party offering the evidence has rested, and this discretion will not be reviewed except where it has
clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or
not it will allow the case to be reopened for the further introduction of evidence after a motion or
request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court
has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or
has denied the same, or after the motion has been granted, if the order has not been written, or
entered upon the minutes or signed. (64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced their respective direct
proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer evidence upon their original case,
and its ruling will not be disturbed in the appellate court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional
evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence
or mistake, or where the purpose of the evidence is to the evidence is to correct evidence previously
offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission
to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns the will for its silence on the
testator's understanding of the language used in the testament. There is no statutory requirement
that such knowledge be expressly stated in the will itself. It is a matter that may be established by
proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the
probate of a will written in Tagalog was ordered although it did not say that the testator knew that
idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator
resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia
knew the Tagalog dialect.

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is
affirmed, with costs.
Suroza v. Honrado
110 SCRA 388

FACTS:

Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared a boy named
Agapito. Agapito and his wife Nenita de Vera had a daughter named Lilia. Nenita became
Agapito’s guardian when he became disabled. A certain Arsenia de la Cruz also wanted to
be his guardian in another proceeding but it was dismissed. Arsenia then delivered a child
named Marilyn Sy to Marcelina who brought her up as a supposed daughter of Agapito.
Marilyn used the surname Suroza although not legally adopted by Agapito. When
Marcelina (who was an illiterate) was 73 years old, she supposedly executed a notarial will
which was in English and thumbmarked by her. In the will, she allegedly bequeathed all
her properties to Marilyn. She also named as executrix her laundrywoman, Marina Paje.
Paje filed a petition for probate of Marcelina’s will. Judge Honrado appointed Paje as
administratrix and issued orders allowing the latter to withdraw money from the savings
account of Marcelina and Marilyn, and instructing the sheriff to eject the occupants of
testatrix’s house, among whom was Nenita. She and the other occupants filed a motion to
set aside the order ejecting them, alleging that Agapito was the sole heir of the deceased,
and that Marilyn was not the decedent’s granddaughter. Despite this, Judge Honrado
issued an order probating Marcelina’s will.

Nenita filed an omnibus petition to set aside proceedings, admit opposition with counter-
petition for administration and preliminary injunction, and an opposition to the probate
of the will and a counter-petition for letters of administration, which were dismissed by
Judge Honrado. Instead of appealing, Nenita filed a case to annul the probate proceedings
but Judge Honrado dismissed it. The judge then closed the testamentary proceeding after
noting that the executrix had delivered the estate to Marilyn, and that the estate tax had
been paid.

Ten months later, Nenita filed a complaint before the SC, charging Judge Honrado with
having probated the fraudulent will of Marcelina. She reiterated her contentionthat the
testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and
that she did not know English, the language in which the will was written. She further
alleged that Judge Honrado did not take into account the consequences of the preterition
of testatrix’s son, Agapito. Judge Honrado in his comment did not deal specifically with
the allegations but merely pointed to the fact that Nenita did not appeal from the decree
of probate and that in a motion, she asked for a thirty day period within which to vacate
the house of the testatrix. Nenita subsequently filed in the CA a petition for certiorari and
prohibition against Judge Honrado wherein she prayed that the will, the decree of probate
and all the proceedings in the probate case be declared void. The CA dismissed the
petition because Nenita’s remedy was an appeal and her failure to do so did not entitle
her to resort to the special civil action of certiorari. Relying on that decision, Judge
Honrado filed a MTD the administrative case for having allegedly become moot and
academic.

ISSUE:
W/N disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language not
known to the illiterate testatrix, and which is probably a forged will because she and the
attesting witnesses did not appear before the notary as admitted by the notary himself.

HELD:

YES. Respondent judge, on perusing the will and noting that it was written in English and
was thumbmarked by an obviously illiterate testatrix, could have readily perceived 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
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.

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. Furthermore, after the
hearing conducted by the deputy clerk of court, respondent judge could have noticed that
the notary was not presented as a witness. 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.
G.R. No. L-13431 November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.

Filemon Sotto for appellants.

M. Jesus Cuenco for appellee.

AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will
executed July, 1916. From this decision the opponent's appealed.

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. 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. 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. We cannot assume that the statute regards of such importance the place where the testator
and the witnesses must sign on the sheet that it would consider that their signatures written on the
bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient
security.

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. But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not necessary in the attestation
clause because this, as its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.

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.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against
the appellants. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.
 Nera v. Rimando , G.R. L-5971 February 27, 1911 (‘Test of Presence’)
At the time the will was executed, in a large room connecting with a smaller room by a doorway where a curtain
hangs across, one of the witnesses was in the outside room when the other witnesses were attaching their signatures
to the instrument.

The trial court did not consider the determination of the issue as to the position of the witness as of vital importance in
determining the case. It agreed with the ruling in the case of Jaboneta v. Gustillo that the alleged fact being that one
of the subscribing witnesses was in the outer room while the signing occurred in the inner room, would not be
sufficient to invalidate the execution of the will.

The CA deemed the will valid.

Whether or not the subscribing witness was able to see the testator and other witnesses in the act of affixing their
signatures.

YES. The Court is unanimous in its opinion that had the witnesses been proven to be in the outer room when the
testator and other witnesses signed the will in the inner room, it would have invalidated the will since the attaching of
the signatures under the circumstances was not done ‘in the presence’ of the witnesses in the outer room. The line of
vision of the witness to the testator and other witnesses was blocked by the curtain separating the rooms.

The position of the parties must be such that with relation to each other at the moment of the attaching the
signatures, they may see each other sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or not they actually saw each other sign but whether
they might have seen each other sign if they chose to do so considering their physical, mental condition and position
in relation to each other at the moment of the inscription of the signature.
 In the Matter of the Will of Antero Mercado, deceased, Rosario GARCIA, vs. Juliana LACUESTA, et al
G.R. No. L-4067, November 29, 1951
A will was executed by Antero Mercado wherein it appears that it was signed by Atty. Florentino Javiwe who wrote
the name of Antero. The testator was alleged to have written a cross immediately after his name. The Court of First
Instance found that the will was valid but the Court of Appeals reversed the lower court’s decision holding that the
attestation clause failed: 1) 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. Javier at the express request of the testator in the presence of the testator and each and every one
of the witnesses; 2) to certify that after the signing of the name of the testator by Atty. 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 3) to certify that the witnesses signed the will in all the pages thereon in the presence
of the testator and of each other. Hence, this appeal.

Whether or not the attestation clause is valid.

The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Javier to write the
testator’s name under his express direction, as required by section 168 of the Code of Civil Procedure. 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, the SC is not prepared to liken the mere sign of the cross to a
thumbmark and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

Cruz v. Villasor, G.R. L-32213 November 26, 1973

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.

Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

No. The will is not valid. 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 int he 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.

Source: http://lawsandfound.blogspot.com/2013/01/cruz-v-villasor-digest.html
Javellana vs. Ledesma, G.R. No. L-7179
The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Ledesma in July 1953.
This testament was deemed executed on May 1950 and May 1952. The contestant was the sister and nearest
surviving relative of the deceased. She appealed from this decision alleging that the will were not executed in
accordance with law.

The testament was executed at the house of the testatrix. One the other hand, the codicil was executed after the
enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a notary public. Now, the
contestant, who happens to be one of the instrumental witnesses asserted that after the codicil was signed and
attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on the same occasion. Gimotea,
however, said that he did not do so, and that the act of signing and sealing was done afterwards.
One of the allegations was that the certificate of acknowledgement to the codicil was signed somewhere else or in the
office of the notary. The ix and the witnesses at the hospital, was signed and sealed by the notary only when he
brought it in his office.

Whether or not the signing and sealing of the will or codicil in the absence of the testator and witnesses affects the
validity of the will

No. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the testator, the witnesses and
the notary be accomplished in one single act. All that is required is that every will must be acknowledged before a
notary public by the testator and witnesses. The subsequent signing and sealing is not part of the acknowledgement
itself nor of the testamentary act. Their separate execution out of the presence of the testator and the witnesses
cannot be a violation of the rule that testaments should be completed without interruption.

Garcia v. Vasquez
32 SCRA 489

FACTS:

This is a petition for appeal from the CFI of Manila admitting to probate the will of
Gliceria Avelino del Rosario (“Gliceria”) executed in 1960. Likewise, this is also an
appeal to remove the current administrator, Consuelo Gonzales-Precilla( “Consuelo”) as
special administratrix of the estate on the ground of Consuelopossesses interest adverse
to the estate and to order the RD of Manila to annotate on the registered lands a notice
of Lis Pendens.
When Gliceria died she had no descendants, ascendants, bros or sisses and 90 yrs old.
After which, her niece, Consuelo petitioned the court to be the administratrix of the
properties. The court approved this because Consuelo has been was already managing
the properties of the deceased during her lifetime. What the respondents allege is that in
the last years of the deceased, Consuelo sought the transfer of certain parcels of land
valued at 300k for a sale price of 30k to her husband Alfonso through fraud and
intimidation. In addition, the oppositors presented evidence that Consuelo asked the
court to issue new Certificates of Titles to certain parcels of land for the purpose of
preparing the inventory to be used in the probate. Also shown was that NEW TCTs were
issued by the RD for certain lands of the deceased after Consuelo asked for the old TCTs.
At the end of the probate proceedings, the court ruled that Counsuelo should be made
the administrator, and that the will was duly executed because of these reasons: NO
EVIDENCE HAS BEEN PRESENTED to establish that the deceasedwas not of sound
mind, that eventough the allegations state that the deceasedprepared another will in
1956 (12pages), the latter is not prevented from executing another will in 1960 (1page),
and that inconsistencies in the testimonies of the witnesses prove their truthfulness.
ISSUE:

Was the will in 1960 (1 page) duly/properly executed?

HELD:

NO. Provision of Article 808 mandatory. Therefore, For all intents and purposes of the
rules on probate, the testatrix was like a blind testator, and the due execution of her will
would have required observance of Article 808. The rationale behind the requirement of
reading the will to the testator if he is blind or incapable of reading the will 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. Likewise, the 1970 will was
done in Tagalog which the deceased is not well versed but in Spanish. This creates doubt
as to the due execution of the will and as well as the typographical errors contain therein
which show the haste in preparing the 1 page will as compared to the 12 page will
created in 1956 written in Spanish. ALSO, as to the blindness, there was proof given by
the testimony of the doctor that the deceased could not read at near distances because
of cataracts. (Testatrix’s vision was mainly for viewing distant objects and not for
reading print.) Since there is no proof that it was read to the deceased twice, the will was
NOT duly executed.
ALSO, Consuelo should be removed as administrator because she is not expected to sue
her own husband to reconvey the lands to the estate alleged to have been transferred by
the deceased to her own husband.
The notice of lis pendens is also not proper where the issue is not an action in rem,
affecting real property or the title thereto.

ALVARADO vs. GAVIOLA

September 14, 1993

FACTS:

The testator did not read the final draft of the will himself. Instead, private respondent,
as the lawyer who drafted the 8-paged document, read the same aloud in the presence of the
testator, the 3 instrumental witnesses and the notary public. The latter 4 followed the reading
with their own respective copies previously furnished them.

Said will was admitted to probate. Later on, a codicil was executed, and by that time,
the testator was already suffering from glaucoma. But the disinheritance and revocatory
clauses were unchanged. As in the case of the notarial will, the testator did not personally read
the final draft of the codicil. Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental witnesses (same as those of the
notarial will) and the notary public who followed the reading using their own copies.

ISSUE:

Was there substantial compliance to the reading of the will?

HELD:

Article 808 not only applies to blind testators, but also to those who, for
one reason or another, are incapable of reading their wills. Hence, the will should
have been read by the notary public and an instrumental witness. However, the spirit behind
the law was served though the letter was not. In this case, there was substantial
compliance. Substantial compliance is acceptable where the purpose of the law has
been satisfied, the reason being that the solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud and trickery but are never intended to
be so rigid and inflexible as to destroy the testamentary privilege.

In this case, private respondent read the testator's will and codicil aloud in the presence
of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent
thereto, the testator affirmed, upon being asked, that the contents read corresponded with
his instructions. Only then did the signing and acknowledgement take place.

Caneda v. CA
222 SCRA 781

FACTS:

On December 5, 1978, Mateo Caballero, a widower without any children and already in
the twilight years of his life, executed a last will and testament at his residence before 3
witnesses.

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

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

4 months later, Mateo Caballero himself filed a case seeking the probate of his last will
and testament, but numerous postponements pushed back the initial hearing of the
probate court regarding the will.

On May 29, 1980, the testator passed away before his petition could finally be heard by
the probate court.

Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special
administrator of the testator’s estate.

Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted
a second petition for intestate proceedings. They also opposed the probate of the testator’s
will and the appointment of a special administrator for his estate.
Benoni Cabrera died and was replaced by William Cabrera as special administrator and
gave an order that the testate proceedings for the probate of the will had to be heard and
resolved first.

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

On the other hand, one of the attesting witnesses and the notary public testified that the
testator executed the will in question in their presence while he was of sound and
disposing mind and that the testator was in good health and was not unduly influenced
in any way in the execution of his will.

Probate court then rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero.

CA affirmed the probate court’s decision stating that it substantially complies with Article
805. Hence this appeal.

ISSUE:

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

HELD:

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

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

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

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

The attestation clause, therefore, provides strong legal guaranties for the due execution
of a will and to insure the authenticity thereof.

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

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

The phrase, “and he has signed the same and every page thereof, on the space provided
for his signature and on the left hand margin,” obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words” as his last will and
testament.”
Clearly lacking is the statement that the witnesses signed the will and every page thereof
in the presence of the testator and of one another. That the absence of the statement
required by law is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be probated.

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

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

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

Roxas v. De Jesus
134 SCRA 245

FACTS:

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

ISSUE:

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

HELD:

Valid date.

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

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

In particular, a complete date is required to provide against such contingencies as that of

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

We have carefully reviewed the records of this case and found no evidence of bad faith
and fraud in its execution nor was there any substitution of Wins and Testaments. There
is no question that the holographic Will of the deceased Bibiana Roxas de Jesus
was entirely written, dated, and signed by the testatrix herself and in a language known
to her. There is also no question as to its genuineness and due execution. All the children
of the testatrix agree on the genuineness of the holographic Will of their mother and that
she had the testamentary capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date “FEB./61 ” appearing on the holographic Will is not
sufficient compliance with Article 810 of the Civil Code. This objection is too technical to
be entertained.

As a general rule, the “date” in a holographic Will should include the day, month, and year
of its execution. However, when as in the case at bar, there is no appearance of fraud, bad
faith, undue influence and pressure and the authenticity of the Will is established and the
only issue is whether or not the date “FEB./61” appearing on the holographic Will is a
valid compliance with Article 810 of the Civil Code, probate of the holographic Will should
be allowed under the principle of substantial compliance.

Labrador v. CA
184 SCRA 170

FACTS:

Melecio died leaving behind a parcel of land to his heirs. However, during probate
proceedings, Jesus and Gaudencio filed an opposition on the ground that the will has been
extinguished by implication of law alleging that before Melecio’s death, the land was sold
to them evidenced by TCT No. 21178. Jesus eventually sold it to Navat.
Trial court admitted the will to probate and declared the TCT null and void. However, the
CA on appeal denied probate on the ground that it was undated.
ISSUE:

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

HELD:

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

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