GARCIA VS LACUESTA

FACTS:

This case involves the will of Antero Mercado, which among other defects was signed by
the testator through a cross mark (an “X”). The will was signed by Atty. Javier who
wrote the name of Mercado as testator and the latter allegedly wrote a cross mark after
his name. The CFI allowed the will but the CA disallowed it because its attestation clause
was defective for failing to certify 1) that the will was signed by Atty. Javier at the
express direction of the testator, 2) that the testator wrote a cross at the end of his name
after Atty. Javier signed for him, and 3) that the 3 witnesses signed the will in the
presence of the testator and of each other.

ISSUE:

Whether the will should be allowed despite the defect of the attestation clause since the
testator had placed a cross mark himself as his signature.

HELD:

The attestation clause is fatally defective for failing to state that Mercado directed Javier

to write the testator’s name under his express direction. Petitioner’s argument that such
recital is unnecessary because the testator signed the will himself using a cross mark
which should be considered the same as a thumb-mark (which has been held sufficient
in past cases) is not acceptable. A cross mark is not the same as a thumb mark, because
the cross mark does not have the same trustworthiness of a thumb mark.

Icasiano v. Icasiano Digest

Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964

Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his
appointment as executor thereof. It appears from the evidence that the testatrix died on September
12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it was prepared in
duplicates, an original and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only brought the original copy of the
will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign
one of the pages in the original copy but admitted he may have lifted 2 pages simultaneously instead
when he signed the will. Nevertheless, he affirmed that the will was signed by the testator and other
witnesses in his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to
a page is sufficient to deny probate of the will
RULING: No, the failure to sign was entirely through pure oversight or mere inadvertence. Since the
duplicated bore the required signatures, this proves that the omission was not intentional. Even if the
original is in existence, a duplicate may still be admitted to probate since the original is deemed to be
defective, then in law, there is no other will bu the duly signed carbon duplicate and the same can be
probated.

The law should not be strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she has no control of. Where the purpose of
the law is to guarantee the identity of the testament and its component pages, and there is no
intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules that the will should be signed
by the witnesses on every page. The carbon copy duplicate was regular in all respects

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.

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 v. Rosal, G.R. No. L-36033, November 5, 1982.

14AUG

[GUTIERREZ, JR., J.]

FACTS

In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-
Visayan dialect, the will consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3) instrumental witnesses. The second
page which contains the attestation clause and the acknowledgment is signed at the end
of the attestation clause by the three (3) attesting witnesses and at the left hand margin
by the testatrix.
 

ISSUE

Whether or not the will is void for failure to state the number of pages used in writing
the will.

RULING

NO. This would have been a fatal defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually composed of only two pages
duly signed by the testatrix and her instrumental witnesses. [T]he first page which
contains the entirety of the testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as “Pagina dos” comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that “This Last Will and Testament
consists of two pages including this page”

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.