NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P.
The Supreme Court ruled that respondent Judge was guilty of
HONRADO of the Court of First Instance of Rizal, Pasig Branch 25
and EVANGELISTA S. YUIPCO, Deputy Clerk of Court, respondents.
SYNOPSIS: Complainant wife of the preterited heir filed a verified
complaint in the Supreme Court against respondent Judge for
having probated an alleged fraudulent will of the decedent
Marcelina Salvador Suroza naming a supposed granddaughter as the
sole heir and giving nothing at all to her supposed father who was
still alive, and for having allowed the administratrix and her cohorts
to withdraw from various banks, the deposits of the testatrix. Said
will was written in English, a language not known to the illiterate
testatrix and probably forged because the testatrix and the attesting
witnesses did not appear before the notary as admitted by the
notary himself. Complainant also denounced deputy clerk of court
Yuipco for not giving her access to the record of the probate case
and for insinuating that for ten thousand pesos the case might be
decided in complainant's favor. In their comment, respondent Judge
merely pointed out that the complainant did not appeal from the
decree of probate and that upon being ejected the latter asked for a
thirty-day period to vacate the house of the testatrix, while
respondent Yuipco vehemently denied the charges against her. The
case was referred for investigation, report and recommendation to
Justice Juan A. Sison of the Court of Appeals who submitted a report
dated October 7, 1951. Relying on the decision of the Court of
Appeals dismissing complainant's petition for certiorari and
prohibition, respondent Judge filed a motion to dismiss the
administrative case for having allegedly become moot and
academic.
inexcusable negligence and dereliction of duty for his unproper
disposition of the testate case which might have resulted in a
miscarriage of justice and imposed upon him a fine equivalent to his
salary for one month. The case against respondent Yuipco was held
as having become moot and academic in view of her being beyond
the Court's disciplinary jurisdiction because she is no longer
employed in the judiciary
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 contention that 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.
NOBLE V. ABAJA
450 SCRA 265
FACTS: The case is about the probate of the will of Alipio Abada
(Not respondent Abaja). Petitioner Belinda Noble is the
administratrix of the estate of Abada. Respondent Alipio
Abaja filed a petition for the probate of Abada’s will. Petitioner
Noble moved for dismissal of the petition for probate.
Caponong-Noble points out that nowhere in the will can one discern
that Abada knew the Spanish language. She alleges that
such defect is fatal and must result in the disallowance of the will.
ISSUE: Should it be expressly stated in the will that it (the will) was
in a language known by the testator?
HELD: No. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect used in the
will.[25] This is a matter that a party may establish by proof aliunde.
In this case, Alipio testified that Abada used to gatherSpanish-
speaking people in their place. In these gatherings, Abada and
his companions would talk in the Spanish language. This sufficiently
proves that Abada speaks the Spanish language.
ABANGAN V. ABANGAN,
40 Phil 476
FACTS: On September 19, 1917, CFI of Cebu admitted to probate
Ana Abangan’s will executed July, 1916. From this decision the
opponents appealed.
The will consists of 2 sheets. The first contains all 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. These omissions,
according to appellants’ contention, are defects whereby the
probate of the will should have been denied.
ISSUE: Whether or not the will was duly admitted to probate.
RULING: YES. In requiring that each and every sheet of the will be
signed on the left margin by the testator and three witnesses in the
presence of each other, Act No. 2645 evidently has for its object the
avoidance of substitution of any of said sheets which may change
the disposition of the testatrix. But when these dispositions are
wholly written on only one sheet (as in the instant case) signed at
the bottom by the testator and three witnesses, their signatures on
the left margin of said sheet are not anymore necessary as such will
be purposeless.
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.
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.
ORTEGA V. VALMONTE
478 SCRA 247
FACTS: Two years after the arrival of Placido from the United States
and at the age of 80 he wed Josefina who was then 28 years old. But
in a little more than two years of wedded bliss, Placido died. Placido
executed a notarial last will and testament written in English and
consisting of 2 pages, and dated 15 June 1983¸but acknowledged
only on 9 August 1983. The allowance to probate of this will was
opposed by Leticia, Placido’s sister. According to the notary public
who notarized the testator’s will, after the testator instructed him
on the terms and dispositions he wanted on the will, the notary
public told them to come back on 15 August 1983 to give him time
to prepare. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were
instructed by his wife to come back on 9 August 1983. The formal
execution was actually on 9 August 1983. He reasoned he no longer
changed the typewritten date of 15 June 1983 because he did not
like the document to appear dirty.
Petitioner’s argument:
1. At the time of the execution of the notarial will Placido was
already 83 years old and was no longer of sound mind.
2. Josefina conspired with the notary public and the 3 attesting
witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of
the will.
ISSUE: 1. W/N Placido has testamentary capacity at the time he
allegedly executed the will.
 2. W/N the signature of Placido in the will was procured by
fraud or trickery.
HELD: 1. YES. Despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares
in them and even their location. As regards the proper objects of
his bounty, it was sufficient that he identified his wife as
sole beneficiary. The omission of some relatives from the will did
not affect its formal validity. There being no showing of fraud in its
execution, intent in its disposition becomes irrelevant.
2. NO. Fraud is a trick, secret devise, false statement, or pretense,
by which the subject of it is cheated. It may be of such character
that the testator is misled or deceived as to the nature
or contents of the document which he executes, or it may relate to
some extrinsic fact, in consequence of the deception regarding
which the testator is led to make a certain will which, but for fraud,
he would not have made.
The party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. The burden to show
otherwise shifts to the proponent of the will only upon a showing of
credible evidence of fraud.
Omission of some relatives does not affect the due execution of a
will. Moreover, the conflict between the dates appearing on the will
does not invalidate the document, “because the law does not even
require that a notarial will be executed and acknowledged on the
same occasion. The variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and
persuasively explained by the notary public
and instrumental witnesses.
PAYAD VS. TOLENTINO
G.R. No. 42258. January 15, 1936
FACTS : Victorio Payad filed a petition for the probate of the
will of the decedent Leoncia Tolentino. This was opposed by
Aquilina Tolentino, averring that said Will was made only after the
death of the testatrix. The lower court denied the probate of the
will on the ground that the attestation clause was not in conformity
with the requirements of the law since it was not stated therein that
the testatrix caused Atty. Almario to write her name at her express
direction. Hence, this petition.
ISSUE : Was it necessary that the attestation clause state that the
testatrix caused Atty. Almario to write her name at her express
direction?
HELD: The evidence of record establishes the fact the Leoncia
Tolentino, assisted by Attorney Almario, placed her thumb mark on
each and every page of the questioned will and that said attorney
merely wrote her name to indicate the place where she placed said
thumb mark. In other words Attorney Almario did not sign for the
testatrix. She signed by placing her thumb mark on each and every
page thereof. "A statute requiring a will to be 'signed' is satisfied if
the signature is made by the testator's mark." (Quoted by this court
from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104,
108.) It is clear, therefore, that it was not necessary that the
attestation clause in question should state that the testatrix
requested Attorney Almario to sign her name inasmuch as the
testatrix signed the will in question in accordance with law.
MATIAS V. SALUD
L-10751, 23 June 1958
FACTS: 1. This case is an appeal from a CFI Cavite order denying the
probate of the will of Gabina Raquel. The document consist of 3
pages and it seems that after the attestation clause, there appears
the siganture of the testatrix 'Gabina Raquel', alongside is a
smudged in violet ink claimed by the proponents as the thumbmark
allegedly affixed by the tetratrix. On the third page at the end of the
attestation clause appears signatures on the left margin of each
page, and also on the upper part of each left margin appears the
same violet ink smudge accompanied by the written words 'Gabina
Raquel' with 'by Lourdes Samonte' underneath it.
2. The proponent's evidence is to the effect that the decedent
allegedly instructed Atty. Agbunag to drat her will and brought to
her on January 1950. With all the witnesses with her and the
lawyer, the decedent affixed her thumbmark at the foot of the
document and the left margin of each page. It was also alleged that
she attempted to sign using a sign pen but was only able to do so on
the lower half of page 2 due to the pain in her right shoulder. The
lawyer, seeing Gabina unable to proceed instructed Lourdes
Samonte to write 'Gabina Raquel by Lourdes Samonte' next to each
thumbmark, after which the witnesses signed at the foot of the
attestation clause and the left hand margin of each page.
3. The probate was opposed by Basilia Salud, the niece of the
decedent.
4. The CFI of cavite denied the probate on the ground that the
attestation clause did not state that the testatrix and the witnesses
signed each and every page nor did it express that Lourdes was
specially directed to sign after the testatrix.
ISSUE: Whether or not the thumbprint was sufficient compliance
with the law despite the absence of a description of such in the
attestation clause
HELD: YES. The absence of the description on the attestation
clause that another person wrote the testatrix' name at her request
is not a fatal defect, The legal requirement only ask that it be signed
by the testator, a requirement satisfied by a thumbprint or other
mark affixed by him.
As to the issue on the clarity of the ridge impression, it is held to be
dependent on the aleatory circumstances. Where a testator
employs an unfamiliar way of signing and that both the attestation
clause and the will are silent on the matter, such silence is a factor
to be considered against the authenticity of the testament.
However, the failure to describe the signature itself alone is not
sufficient to refuse probate when evidence fully satisfied that the
will was executed and witnessed in accordance with law.
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
FACTS: A will was executed by Antero Mercado wherein it appears
that it was signed by Atty. Florentino Javier 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.
ISSUE: Whether or not the attestation clause is valid.
HELD: No. 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.
BARUT V. CABACUNGAN
21 P 461
FACTS: Barut applied for the probate of the will of deceased, Maria
Salomon. The testatrix stated in the will that being unable to read or
write, the will was read to her by Ciriaco Concepcion and Timotea
Inoselda and that she had instructed Severo Agayan to sign her
name to it as testatrix. The probate was contested by a number of
the relatives of the deceased on various grounds.
The probate court found that the will was not entitled to probate
because “the handwriting of the person who it is alleged signed the
name of the testatrix to the will for and on her behalf looked more
like the handwriting of one of the other witnesses to the will than to
the person whose handwriting it was alleged to be” (i.e. The
probate court denied probate because the signature seemed to not
have been by Severo Agayan but by another witness).
ISSUE: Was the dissimilarity in handwriting sufficient
to deny probate of the will?
HELD: No. The SC found that the mere dissimilarity in writing is
sufficient to overcome the uncontradicted testimony of all the
witnesses that the signature of the testatrix was written by Severo
Agayan. It is also immaterial who writes the name of the testatrix
provided it is written at her request and in her presence and in the
presence of all the witnesses to the execution of the will.
Based on Section 618 of the Code of Civil Procedure, it is clear that
with respect to the validity of the will, it is unimportant whether the
person who writes the name of the testatrix signs his own or not.
The important thing is that it clearly appears that the name of the
testatrix was signed at her express direction in the presence of 3
witnesses and that they attested and subscribed it in her presence
and in the presence of each other. It may be wise that the one who
signs the testator’s name signs also his own; but that is not essential
to the validity of the will.
The court also held that the 3 cases cited by the lower court was not
applicable. In those cases, the person who signed the will for the
testator wrote his own name instead of the testator’s, so that the
testator’s name nowhere appeared in the will, and were thus wills
not duly executed.
NERA V. RIMANDO
G.R. L-5971 February 27, 1911 (‘Test of Presence’)
FACTS: 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.
ISSUE: Whether or not the subscribing witness was able to see the
testator and other witnesses in the act of affixing their signatures.
HELD: 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 actualy saw each other sign but whether they might have seen
each other sign if they chose to doso considering their physical,
mental condition and position in relation to each other at the
moment of the inscription of the signature.
AZUELA V. COURT OF APPEALS
G.R. No. 122880 (2006)
FACTS: 1. Petitioner Felix Azuela sought to admit to probate the
notarial will of Eugenia E. Igsolo. However, this was opposed by
Geralda Castillo, who was the attorney-in-fact of “the 12 legitimate
heirs” of the decedent. According to her, the will was forged, and
imbued with several fatal defects. Particularly, the issue relevant in
this subject is that the will was not properly acknowledged. The
notary public, Petronio Y. Bautista, only wrote “Nilagdaan ko at
ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila.”
ISSUE: Whether or not the will is fatally defective as it was not
properly acknowledged before a notary public by the testator and
the witnesses as required by Article 806 of the Civil Code.
RULING: Yes, the will is fatally defective. By no manner of
contemplation can those words be construed as an
acknowledgment.
An acknowledgement is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be
his act or deed. It involves an extra step undertaken whereby the
signore actually declares to the notary that the executor of a
document has attested to the notary that the same is his/her own
free act and deed.
It might be possible to construe the averment as a jurat, even
though it does not hew to the usual language thereof. A jurat is that
part of an affidavit where the notary certifies that before him/her,
the document was subscribed and sworn to by the executor.
Yet even if we consider what was affixed by the notary public as a
jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be “acknowledged,” and
not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or those
made beyond the free consent of the testator.
TABOADA VS. ROSAL
GR L-36033. November 5, 1982
FACTS: Petitioner Apolonio Taboada filed a petition for probate of
the will of the late Dorotea perez. The will consisted of two pages,
the first page containing all the testamentary dispositions of the
testator and was signed at the end or bottom of the page by the
testatrix alone and at the left hand margin by the three
instrumental witnesses. The second page consisted of the
attestation clause and the acknowledgment was signed at the end
of the attestation clause by the three witnesses and at the left hand
margin by the testatrix. The trial court disallowed the will for want
of formality in its execution because the will was signed at the
bottom of the page solely by the testatrix, while the three witnesses
only signed at the left hand margin of the page. The judge opined
that compliance with the formalities of the law required that the
witnesses also sign at the end of the will because the witnesses
attest not only the will itself but the signature of the testatrix.
Hence, this petition.
ISSUE: Was the object of attestation and subscription fully when
the instrumental witnesses signed at the left margin of the sole
page which contains all the testamentary dispositions?
HELD: YES. On certiorari, the Supreme Court held a) that the
objects of attestation and subscription were fully met and satisfied
in the present case when the instrumental witnesses signed at the
left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly identified by a
subscribing witness to be the same will executed by the testatrix;
and b) that the failure of the attestation clause to state the number
of pages used in writing the will would have been a fatal defect
were it not for the fact that it is really and actually composed of
only two pages duly signed by the testatrix and her instrumental
witnesses.
(LONG RULING [VERBATIM])
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another.
It must be noted that the law uses the terms attested and
subscribed. Attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that
those things are done which the statute requires for the execution
of a will and that the signature of the testator exists as a fact. On
the other hand, subscription is the signing of the witnesses' names
upon the same paper for the purpose of identification of such paper
as the will which was executed by the testator. (Ragsdale v. Hill, 269
SW 2d 911).
The signatures of the instrumental witnesses on the left margin of
the first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the law on
wills in this project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more
freedom in expressing his last wishes but with sufficient safeguards
and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the
testator. This objective is in accord with the modern tendency in
respect to the formalities in the execution of a will" (Report of the
Code Commission, p. 103).
The objects of attestation and of subscription were fully met and
satisfied in the present case when the instrumental witnesses
signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly
identified by subscribing witness Vicente Timkang to be the same
will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
ICASIANO V. ICASIANO
11 SCRA 422
FACTS: Celso Icasiano filed a petition for
the allowance and admission to probate of the alleged will of Josefa
Villacorte, and for his appointment as executor thereof. Natividad
and Enrique Icasiano, a daughter and son of the testatrix, filed their
opposition thereto. During the course of the trial, on 19 March
1959, Celso, started to present his evidence. But later, on 1 June
1959, he then filed an amended and supplemental petition, alleging
that the decedent had left a will executed in duplicate and with all
the legal requirements, and that he was submitting the duplicate to
the court, which he found only on 26 May 1959. Natividad and
Enrique filed their opposition, but the will and its duplicate was
admitted to probate by the trial court. Hence, this appeal by the
oppositors.
Oppositors-appellants (Natividad and Enrique) in turn introduced
expert testimony to the effect that the signatures of the testatrix in
the duplicate are not genuine, nor were they written or affixed on
the same occasion as the original, and further averthat granting that
the documents were genuine, they were executed through mistake
and with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of
those who will stand to benefit from the provisions of the will, as
may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof,
whereby proponents- appellees stand to profit from properties held
by them as attorneys- in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined not
to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
ISSUE: Was the trial court correct in admitting the will and its
duplicate to probate given the allegations of forgery of the
testator’s signature, or that the will was executed under
circumstances constituting fraud and undue influence and pressure?
(Not raised by the appellants in the case but discussed by the Court
and in Sir’s book) Is the failure of one of the witnesses to sign a page
of the will fatal to its validity?
HELD: The Supreme Court dismissed the appeal, holding that both
the will and its duplicate are valid in all respects.
On the allegations of forgery, fraud and undue influence:
The Court is satisfied that all the requisites for the validity of a will
have been complied with. The opinion of a handwriting expert
trying to prove forgery of the testatrix’s signature failed to convince
the Court, not only because it is directly contradicted by another
expert but principally because of the paucity of the standards used
by him (only three other signatures), considering the advanced age
of the testatrix, the evident variability of her signature, and the
effect of writing fatigue.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering that standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting
power. On the whole, the testimony of the oppositor’s expert is
insufficient to overcome that of the notary and the
two instrumental witnesses as to the will’s execution, which were
presented by Celso during the trial.
Nor is there adequate evidence of fraud or undue influence. The
fact that some heirs are more favored than others is proof of
neither. Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The
testamentary disposition that the heirs should not inquire into other
property and that they should respect the distribution made in the
will, under penalty of forfeiture of their shares in the free part, do
not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of
the estate being diverted into the hands of non- heirs and
speculators. Whether these clauses are valid or not is a matter to be
litigated on another occasion. It is also well to note that fraud and
undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of
definite evidence against the validity of the will.
On the failure of a witness to sign a page in the original, but signed
all pages in the duplicate:
The records show that the original of the will consists of five pages,
and while signed at the end and in every page, it does not contain
the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page 3 thereof; but the duplicate copy attached to the
amended and supplemental petition is signed by the testatrix and
her three attesting witnesses in each and every page.
Witness Atty. Natividad, who testified on his failure to sign page 3 of
the original, admits that he may have lifted two pages instead of
one when he signed the same, but affirmed that page 3 was signed
in his presence.
The failure Atty. Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by
the duplicate copy of the will, which bears a complete set of
signatures in every page. The text of the attestationclause and the
acknowledgment before the Notary Public likewise evidence that no
one was aware of the defect at the time. Therefore, Atty.
Natividad’s failure to sign page 3 of the original through mere
inadvertence does not affect the will’s validity.
Impossibility of substitution of this page is assured not only the fact
that the testatrix and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint of the seal of the
notary public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of
the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on
record attests to the full observance of the statutory requisites.
This would not be the first time that this Court departs from a strict
and literal application of the statutory requirements, where the
purposes of the law are otherwise satisfied. Thus, despite the literal
tenor of the law, this Court has held that a testament, with the only
page signed at its foot by testator and witnesses, but not in the left
margin, could nevertheless be probated (Abangan vs. Abangan, 41
Phil. 476); and that despite the requirement for the correlative
lettering of the pages of a will, the failure to mark the first page
either by letters or numbers is not a fatal defect (Lopez vs. Liboro,
81 Phil. 429). These precedents exemplify the Court’s policy to
require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate is not entitled to probate.
Since they opposed probate of the original because it lacked one
signature in its third page, it is easily discerned that oppositors-
appellants run here into a dilemma: if the original is defective and
invalid, then in law there is no other will but the duly signed carbon
duplicate, and the same is probatable. If the original is valid and can
be probated, then the objection to the signed duplicate need not be
considered, being superfluous and irrelevant. At any rate, said
duplicate serves to prove that the omission of one signature in the
third page of the original testament was inadvertent and not
intentional.
CAGRO V. CAGRO
92 P 1032
FACTS: Vicente Cagro died on Feb. 14, 1949 in Samar. Since the
decedent allegedly made a will prior to his death, the will was
probated before the CFI of Samar. However, the oppositors-
appellant objected the probate proceeding alleging that the will is
fatally defective because its attestation clause is not signed by the
attesting witnesses. It is undisputed that the signatures of the three
witnesses to the will do not appear at the bottom of
the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin.
ISSUE: W/N the will may be probated even if the signatures of the
witnesses do not appear at the bottom of the attestation clause,
and instead, they were placed on the left-hand margin of the page
containing the same.
HELD: No. The position taken by the oppositor-appellant is correct.
The attestation clauseis ‘a memorandum of the facts attending the
execution of the will’ required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner-appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would
be easy to add such clause to a will on a subsequent occasion and in
the absence of the testator and any or all of the witnesses.
Bautista Angelo, J. dissenting:
I dissent. In my opinion the will in question has substantially
complied with the formalities of the law and, therefore, should be
admitted to probate. It appears that the will was signed by the
testator and was attested by three instrumental witnesses, not only
at the bottom, but also on the left-hand margin. The witnesses
testified not only that the will was signed by the testator in their
presence and in the presence of each other but also that when they
did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by
the oppositors to the validity of the will is the fact that the
signatures of the instrumental witnesses do not appear immediately
after the attestation clause.
This objection is too technical to be entertained. In the case of
Abangan vs. Abangan, (40 Phil. 476), this court said that when the
testamentary 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 such a case, the court said, the
requirement of the signatures on the left hand margin was not
necessary because the purpose of the law — which is to avoid the
substitution of any of the sheets of the will, thereby changing the
testator’s dispositions — has already been accomplished. We may
say the same thing in connection with the will
under consideration because while the
three instrumental witnesses did not sign immediately by the
majority that it may have been only added on a subsequent
occasion and not at the uncontradicted testimony of said witnesses
to the effect that such attestation clause was already written in the
will when the same was signed.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista’s dissenting opinion and may add
that the majority decision erroneously sets down as a fact that
the attestation clause was not signed when the witnesses’
signatures appear on the left margin and the real and only question
is whether such signatures are legally sufficient. The law on wills
does not provide that the attesting witness should sign the clause at
the bottom. In the absence of such provision, there is no reason
why the signatures on the margin are not acceptable
Will is not valid. The attestation clause is a memorandum of the
facts attending the execution of the will. It is required by law to be
made by the attesting witnesses and it must necessarily bear their
signatures.
An unsigned attestation clause cannot be considered as an act of
the witnesses since the omission of their signatures at the bottom
negatives their participation.
Moreover, the signatures affixed on the let hand margin is not
substantial conformance to the law. The said signatures were
merely in conformance with the requirement that the will must be
signed on the left-hand margin of all its pages. If the attestation
clause is unsigned by the 3 witnesses at the bottom, it would be
easier to add clauses to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
The probate of the will is denied
LEE V. TAMBAGO
544 SCRA 393
FACTS: Complainant, Manuel L. Lee, charged respondent, Atty.
Regino B. Tambago, with violation of Notarial Law and the Ethics of
the legal profession for notarizing a will that is alleged to be
spurious in nature in containing forged signatures of his father, the
decedent, Vicente Lee Sr. and two other witnesses. In the said will,
the decedent supposedly bequeathed his entire estate to his wife
Lim Hock Lee, save for a parcel of land which he devised to Vicente
Lee, Jr. and Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before
respondent on June 30, 1965.Complainant, however, pointed out
that the residence certificateof the testator noted in the
acknowledgment of the will was dated January 5,
1962.Furthermore, the signature of the testator was not the same
as his signature as donor in a deed of donationwhich supposedly
contained his purported signature. Complainant averred that the
signatures of his deceased father in the will and in the deed of
donation were “in any way entirely and diametrically opposed from
one another in all angle[s].”
Complainant also questioned the absence of notation of the
residence certificates of the purported witnesses Noynay and Grajo.
He alleged that their signatures had likewise been forged and
merely copied from their respective voters’ affidavits.
Complainant further asserted that no copy of such purported will
was on file in the archives division of the Records Management and
Archives Office of the National Commission for Culture and the Arts
(NCCA).
ISSUE: Was the will spurious?
HELD: Yes, thus Tambago violated the Notarial Law and the ethics
of legal profession.
The law provides for certain formalities that must be followed in the
execution of wills. The object of solemnities surrounding the
execution of wills is to close the door on bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their
truth and authenticity.
A notarial will, as the contested will in this case, is required by law
to be subscribed at the end thereof by the testator himself. In
addition, it should be attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another. The will in question was attested by only two witnesses.
On this circumstance alone, the will must be considered void. This is
in consonance with the rule that acts executed against the
provisions of mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity. The Civil Code likewise
requires that a will must be acknowledged before a notary public by
the testator and the witnesses. An acknowledgment is the act of
one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It involves an
extra step undertaken whereby the signatory actually declares to
the notary public that the same is his or her own free act and deed.
The acknowledgment in a notarial will has a two-fold purpose: (1) to
safeguard the testator’s wishes long after his demise and (2)
to assure that his estate is administered in the manner that he
intends it to be done.
A cursory examination of the acknowledgment of the will in
question shows that this particular requirement was neither strictly
nor substantially complied with. For one, there was the conspicuous
absence of a notation of the residence certificates of the notarial
witnesses Noynay and Grajo in the acknowledgment. Similarly, the
notation of the testator’s old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by
respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was
required to faithfully observe the formalities of a will and those of
notarization. These formalities are mandatory and cannot be
disregarded.
JAVELLANA V. LEDESMA
97 P 258
FACTS: The Court of First Instance of Iloilo admitted to probate the
documents in the Visayan dialect as the testament and codicil duly
executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952, respectively, with
Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as
witnesses. The contestant, Matea Ledesma, sister and nearest
surviving relative of said deceased, appealed from the decision,
insisting that the said exhibits were not executed in conformity with
law. Ledesma is questioning the validity of the codicil contending
that the fact that the notary did not sign the instrument in the
presence of the testator and the witness made the codicil was not
executed in conformity with the law
ISSUE: 1. W/N the codicil was validly executed.
2. Whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the
witnesses, does not affect the validity of the codicil.
HELD: 1.The instrumental witnesses (who happen to be the same
ones who attested the will of 1950) asserted that after the codicil
had been signed by the testatrix and the witnesses at the San Pablo
Hospital, the same was signed and sealed by notary public Gimotea
on the same occasion. On the other hand, Gimotea affirmed that he
did not do so, but brought the codicil to his office, and signed and
sealed it there. The variance does not necessarily
imply conscious perversion of truth on the part of the witnesses,
but appears rather due to a well-established phenomenon, the
tendency of the mind, in recalling past events, to substitute the
usual and habitual for what differs slightly from it.
2.The new Civil Code does not require that the signing of
the testator, witnesses and notary should be accomplished in one
single act. A comparison of Articles 805 and 806 of the
new Civil Code reveals that while testator and witnesses sign in the
presence of each other, all that is thereafter required is that “every
will must be acknowledged before a notary public by the testator
and the witnesses” (Art. 806); i.e., that the latter should avow to the
certifying officer the authenticity of their signatures and the
voluntariness of their actions in executing the
testamentary disposition. This was done in this case. The
subsequent signing and sealing by the notary of his certification that
the testament was duly acknowledged by the participants therein is
no part of the acknowledgment itself nor of the testamentary act.
Hence their separate execution out of the presence of the testatrix
and her witnesses cannot be said to violate the rule that testaments
should be completed without interruption. It is noteworthy that
Article 806 of the new Civil Code does not contain words requiring
that the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was executed.
CRUZ V. VILLASOR
54 SCRA 752
FACTS: The CFI of Cebu allowed the probate of Valente Z. Cruz’s last
will and testament. His surviving spouse, Agapita Cruz, opposed
the allowance of the will alleging it was executed through
fraud, deceit, misrepresentation and undue influence; that the said
instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties
he was disposing and that the supposed last will and testament 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. Agapita appealed
the allowance of the will by certiorari.
ISSUE: W/N the will was executed in accordance with law
(particularly Articles 805 and 806 of the NCC, the first requiring at
least three credible witnesses to attest and subscribe to the will,
and the second requiring the testator and the witnesses
to acknowledge the will before a notary public.).
HELD: NO. Of the three instrumental witnesses to the will, one of
them (Atty. Teves) is at the same time the Notary Public before
whom the will was supposed to have been acknowledged. The
notary public before whom the will was acknowledged cannot
be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will.
To acknowledge before means to avow (Javellana v.
Ledesma; Castro v. Castro); to own as genuine, to assent, to admit;
and “before” means in front or preceding in space or ahead
of. Consequently, if the third witness were the notary public
himself, he would have to avow assent, or admit his having signed
the will in front of himself. This cannot be done because he cannot
split his personality into two so that one will appear before the
other to acknowledge his participation in the making of the will. To
permit such a situation to obtain would be sanctioning a sheer
absurdity. Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral arrangement (Balinon
v. De Leon). That function would defeated if the notary public were
one of the attesting instrumental witnesses. It would place him in
inconsistent position and the very purpose of acknowledgment,
which is to minimize fraud, would be thwarted.
Admittedly, there are American precedents holding that notary
public may, in addition, act as a witness to the executive of the
document he has notarized. There are others holding that his
signing merely as notary in a will nonetheless makes him a witness
thereon. But these authorities do not serve the purpose of the law
in this jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to in these cases merely
acted as instrumental, subscribing attesting witnesses, and not as
acknowledging witnesses. Here, the notary public acted not only as
attesting witness but also acknowledging witness, a situation not
envisaged by Article 805-06. Probate of will set aside.
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.
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 Consuelo
possesses 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 Alfonsothrough 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 deceased was not of sound mind,
that eventough the allegations state that the deceased prepared
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 V. GAVIOLA
226 SCRA 347
FACTS: On 5 November 1977, 79-year old
Brigido Alvarado executed a notarial will entitled “Huling Habilin”
wherein he disinherited an illegitimate son, petitioner
Cesar Alvarado, and expressly revoked a previously executed
holographic will at the time awaiting probate before the RTC of
Laguna.
According to Bayani Ma. Rino, private respondent, he was present
when the said notarial will was executed, together with
three instrumental witnesses and the notary public, where the
testator did not read the will himself, suffering as he did from
glaucoma.
Rino, a lawyer, drafted the eight-page document and read the
same aloud before the testator, the three instrumental witnesses
and the notary public, the latter four following the reading with
their own respective copies previously furnished them.
Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa
Nobiembre 5, 1977 ni Brigido Alvarado” was executed changing
some dispositions in the notarial will to generate cash for the
testator’s eye operation.
Said codicil was likewise not read by Brigido Alvarado and was read
in the same manner as with the previously executed will.
When the notarial will was submitted to the court for probate,
Cesar Alvarado filed his opposition as he said that the will was not
executed and attested as required by law; that the testator was
insane or mentally incapacitated due to senility and old age; that
the will was executed under duress, or influence of fear or threats;
that it was procured by undue pressure and influence on the part of
the beneficiary; and that the signature of the testator was procured
by fraud or trick.
ISSUE: W/N notarial will of Brigido Alvarado should be admitted to
probate despite allegations of defects in the execution
and attestation thereof as testator was allegedly blind at the time of
execution and the double-reading requirement under Art. 808 of
the NCC was not complied with.
HELD: YES. The spirit behind the law was served though the letter
was not. Although there should be strict compliance with the
substantial requirements of law in order to insure
the authenticity of the will, the formal imperfections should
be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator’s will.
Cesar Alvardo was correct in asserting that his father was not
totally blind (of counting fingers at 3 feet) when the will and codicil
were executed, but he can be so considered for purposes of Art.
808.
That Art. 808 was not followed strictly is beyond cavil.
However, in the case at bar, there was substantial compliance
where the purpose of the law has been satisfied: that of making the
provisions known to the testator who is blind or incapable of
reading the will himself (as when he is illiterate) and enabling him
to object if they do not accord with his wishes.
Rino read the testator’s will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public.
Prior and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgment take place.
There is no evidence that the contents of the will and the codicil
were not sufficiently made known and communicated to the
testator.
With four persons, mostly known to the testator, following the
reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was
read to him were the terms actually appearing on the typewritten
documents.
The rationale behind the requirement of reading the will to the
testator if he is blindor incapable of reading the will to himself (as
when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance
with his wishes.
Although there should be strict compliance with the
substantial requirements of law in order to insure
the authenticity of the will, the formal imperfections should
be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator’s will.
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 defectsmust 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.
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST
WILL AND TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ
vs. DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L.
TUAZON
G.R. No. 189984 November 12, 2012
Doctrine: The law is clear that the attestation must state the
number of pages used upon which the will is written. The purpose of
the law is to safeguard against possible interpolation or omission of
one or some of its pages and prevent any increase or decrease in the
pages.
FACTS: Enrique S. Lopez (Enrique) died leaving his wife, Wendy B.
Lopez (Lopez), and their four legitimate children, namely, petitioner
Richard, Diana, Marybeth and Victoria as compulsory heirs. Before
Enrique’s death, he executed a Last Will and Testament and
constituted Richard as his executor and administrator.
Richard filed a petition for the probate of his father's Last Will and
Testament before the RTC with prayer for the issuance of letters
testamentary in his favor. Marybeth opposed the petition
contending that the purported last will and testament was not
executed and attested as required by law, and that it was procured
by undue and improper pressure and influence on the part of
Richard. Victoria also adopted the said opposition.
After submitting proofs of compliance with jurisdictional
requirements, Richard presented the attesting witnesses, namely:
Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo
(Manalo); and the notary public who notarized the will, Atty.
Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses
testified that after the late Enrique read and signed the will on each
and every page, they also read and signed the same in the latter's
presence and of one another. Photographs of the incident were
taken and presented during trial. Manalo further testified that she
was the one who prepared the drafts and revisions from Enrique
before the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his client for
more than 20 years. The latter consulted him in the preparation of
the subject will and furnished him the list of his properties for
distribution among his children. He prepared the will in accordance
with Enrique's instruction and that before the latter and the
attesting witnesses signed it in the presence of one another, he
translated the will, which was written in English to Filipino and
added that Enrique was in good health and of sound mind at that
time.
RTC: disallowed the probate of the will for failure to comply with
Article 805 of the Civil Code which requires a statement in the
attestation clause of the number of pages used upon which the will
is written. It held that while Article 809 of the same Code requires
mere substantial compliance of the form laid down in Article 805
thereof, the rule only applies if the number of pages is reflected
somewhere else in the will with no evidence aliunde or extrinsic
evidence required. While the acknowledgment portion stated that
the will consists of 7 pages including the page on which the
ratification and acknowledgment are written, the RTC observed that
it has 8 pages including the acknowledgment portion. As such, it
disallowed the will for not having been executed and attested in
accordance with law.
CA: found no valid reason to deviate from the findings of the RTC
that the failure to state the number of pages of the will in the
attestation clause was fatal. It noted that while Article 809 of the
Civil Code sanctions mere substantial compliance with the formal
requirements set forth in Article 805 thereof, there was a total
omission of such fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages including the
page on which the ratification and acknowledgment are written,"
the will had actually 8 pages including the acknowledgment portion
thus, necessitating the presentation of evidence aliunde to explain
the discrepancy.
Hence, the instant petition.
ISSUE: Whether the CA erred in affirming the RTC decision to
disallow the probate of will.
HELD: The provisions of the Civil Code on Forms of Wills,
particularly, Articles 805 and 809 of the Civil Code provide:
ART. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one
another.
ART. 809. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of Article 805.
While Article 809 allows substantial compliance for defects in the
form of the attestation clause, Richard likewise failed in this respect.
The statement in the Acknowledgment portion of the subject last
will and testament that it "consists of 7 pages including the page on
which the ratification and acknowledgment are written" cannot be
deemed substantial compliance. The will actually consists of 8 pages
including its acknowledgment which discrepancy cannot be
explained by mere examination of the will itself but through the
presentation of evidence aliunde.
The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages
are consecutively numbered; whether the signatures appear in each
and every page; whether the subscribing witnesses are three or the
will was notarized. All these are facts that the will itself can reveal,
and defects or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.
Hence, the CA properly sustained the disallowance of the will.
GERMAN JABONETA VS. RICARDO GUSTILO, ET AL.
G.R. No. 1641
FACTS: Julio Javellana, one of the witnesses, did not attach his
signature thereto in the presence of Isabelo Jena, another of the
witnesses, as required by the provisions of section 618 of the Code
of Civil Procedure The probate of the will of German Jaboneta
mentioned that one of the witnesses did not attach his signature in
the will in the presence of another witness Jaboneta asked Julio
Javellana, Aniceto Jalbuena and Isabelo Jena to serve as witnesses.
According, the order of signing was in this manner: Jena – Jalbuena
– Javellana. However, during Jena’s testimony, he mentioned that
he is not categorically sure if Javellana signed because as the latter
was signing, he was about to go out of the room. He merely said
that Javellana had “taken the pen in his hand, as it appeared, for the
purpose of signing, and when I was near the door I happened to
turn my face and I saw that he had his hand with the pen resting on
the will, moving it as if for the purpose of signing”
ISSUE: Whether the presence requirement in witnessing a will was
met given that one witness did not fully witness the actual signing
of another witness
RULING: YES, the purpose of a statutory requirement that
the witness sign in the presence of the testator is said to be that the
testator may have ocular evidence of the identity of the instrument
subscribed by the witness and himself. The generally accepted tests
of presence are vision and mental apprehension. It is sufficient if the
witnesses are together for the purpose of witnessing the execution
of the will, and in a position to actually see the testator write, if they
choose to do so. The true test of vision is not whether the testator
actually saw the witness sign, but whether he might have seen him
sign, considering his mental and physical condition and position at
the time of the subscription
DOCTRINE: Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or by the
testator’s name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed
on the upper part of each page. The attestation shall state the
number of pages used upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. If the attestation
clause is in a language not known to the witnesses, it shall be
interpreted to them.
SPECIFIC ISSUE: Whether or not the subscribing witnesses, in
compliance with Art. 805 of the New Civil Code,must actually
witness (on their eyes) the signing of the instrument by the
other witnesses.
HOW DID THE SC DECIDE ON THE ISSUE BASED ON THE DOCTRINE
The fact that Isabelo Jena (one of the witnesses) was still in the
room when he saw Julio Javellana (another of the witnesses)
moving his hand and pen in the act of affixing his signature to the
will, taken together with the testimony of the remaining witnesses
which shows that Julio Javellana did in fact there and then sign his
name to the will, convinces the SC that the signature was affixed in
the presence of Isabelo Jena. The purpose of a statutory
requirement that the witness sign in the presence of the testator is
said to be that the testator may have ocular evidence of the identity
of the instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental
apprehension. The true test of vision is not whether the testator
actually saw the witness sign, but whether he might have seen him
sign, considering his mental and physical condition and position at
the time of the subscription. These principles are equally applicable
in determining whether the witnesses signed the instrument in the
presence of each other, as required by the statute.