NOTARIAL WILLS

Eutiquia Avera vs. Marino Garcia, and Juan Rodriguez

G.R. No. 15566 September 14, 1921

Facts:

Eutiquia Avera instituted a proceeding for probate of the will of one Esteban Garcia. However, a contest was made by Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia.

The proponent of the will introduced one of the three attesting witnesses who testified that the will was executed with all necessary external formalities, and that the testator was at the time in full possession of disposing faculties. When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended to show in a vague and indecisive manner that at the time the will was made the testator was so debilitated as to be unable to comprehend what he was about.

The trial judge found that the testator at the time of the making of the will was of sound mind and disposing memory and that the will had been properly executed. He accordingly admitted the will to probate.

Issue:

Whether the will is rendered invalid by reason that the signature of the testator and of the three attesting witnesses are written on the right margin of each page of the will instead of the left margin.

Ruling:

It is essential to the validity of a will in this jurisdiction that the names of the testator and the instrumental witnesses should be written on the left margin of each page, as required in Act 2645, and not upon the right margin, as in the will now before us. Upon this The Court is of the opinion that the will in question is valid. It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this court.

The provision to the effect that the signatures of the testator and witnesses shall be written on the left margin of each page - rather than on the right margin - seems to be of this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible difference whether the names appear on the left or no the right margin, provided they are on one or the other.

The instrument contains the necessary signatures on every page, and the only point of deviation from the requirement of the statute is that these signatures appear in the right margin instead of the left. By the mode of signing here adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly the same degree that it would have been protected by being signed in the left margin; and the resources of casuistry could be exhausted without discovering the slightest difference between the consequences of affixing the signatures in one margin or the other.

In the case where ingenuity could not suggest any possible prejudice to any person, as attendant upon the actual deviation from the letter of the law, such deviation must be considered too trivial to invalidate the instrument.

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE, et al. vs. NATIVIDAD ICASIANO, et al.

No. L-18979, June 30, 1964

Facts

On June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad and Vinicio B. Diy.

The original will consists of five pages, and while signed at the end and every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose Natividad, on page three thereof, but the duplicate copy attached to the petition is signed by the testatrix and her attesting witnesses in each and every page.

On September 12, 1958, Villacorte died.

Executor Celso Icasiano filed for the probate of the said will. However, Natividad Icasiano, daughter of the testatrix, filed her opposition. Likewise, Enrique Icasiano, son of Villacorte filed his opposition, adopting the opposition of Natividad on the ground that the will is void for its failure to comply with the formalities required by law.

Issue

Whether or not the will complied with the requirements of law for its validity

Ruling

The inadvertent failure of one of the witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. 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 failure of witness Natividad to sign page three 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 attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.

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.

IN RE WILL OF ANTONIO VERGEL DE DIOS, RAMON J. FERNANDEZ vs. HERMELO VERGEL, et al.

No. L-2115, February 25, 1924

Facts

The question in this case is as to the validity of the will of the late Antonio Vergel de Dios, which was propounded by Ramon Fernandez for probate, and contested by Fernando Vergel de Dios and Francisco, Ricardo and Virgilio Rustia, alleging that the attestation clause was fatally defective since the witnesses did not sign the attestation clause in the presence of the testator and of one another.

Issue

Whether or not the signatures of the testator and the paging of the will are also necessary in the attestation clause

Ruling

The attestation clause shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other.

This refers to the contents of the text of the attestation, not the requirement or signatures thereof outside of its text. It does not require that the attestation clause be signed by the testator or that the page or sheet containing it be numbered.

In the case at bar the attestation clause in question states that the requirements prescribed for the will were complied with, and this is enough for it, as such attestation clause, to be held as meeting the requirements prescribed by the law for it.

The fact that in said clause the signature of the testator does not appear does not affect its validity, for, as above-stated, the law does not require that it be signed by the testator.

Furthermore, although the numbering of the sheet containing the attestation clause does not appear in the upper part thereof, yet if that numbering is found in its text, as when it is said therein that

the will consists of three sheets actually uses, correlatively numbered, besides this one, that is to say, the sheet containing the attestation clause, the requirement prescribed by the law is substantially complied with, for if the will consists of three sheets besides the one containing the attestation clause, it is evident that the latter is the fourth page is to say, that the document consists of four sheets.

PASTOR LOPEZ vs. COURT OF APPEALS and JESUS MARTIN

81 SCRA 429

Facts

The appellants opposed the probate of the last will and testament of Don Sixto Lopez, who died at the age of 83 on March 3, 1947 on the following grounds: (a) that the deceased never executed the alleged will; (b) that his signature appearing in said will was a forgery; (c) that, if he did ever execute said will. It was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue and improper pressure and influence on the part of the beneficiaries instituted therein; (d) that at time of the execution of the will, he was wanting in testamentary as well as mental capacity due to advanced age; and (e) that the signature of the testator was procured by fraud or trick.

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

Issue

Whether or not the will is valid

Ruling

The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages.

In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numeral words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. As page two contains only two lines, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet cannot by any possibility be taken for other than page one.

IN RE WILL OF ANA ABANGAN, GERTRUDES ABANGAN vs. ANASTACIA ABANGAN, et al.

No. 13431, November 12, 1919

Facts

In July 1916, Ana Abangan executed her last will and testament.

The said will, duly probated, consists of two sheets, the first of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin Motalban (in the name and under the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters and this omission, according to appellants’ contention, are defects wherein the probate of the will should have been denied.

Issue

Whether or not the will was duly probated

Ruling

In requiring that each and every sheet of the will should be signed on the left margin by the testator and three witnesses in the presence of each other, evidently has for its object to avoid the substitution of any of said sheets, thereby changing the testator’s disposition. But when these dispositions are wholly written on only one sheet signed at the bottom by the testator and three witnesses, their signatures on the left margin of said sheet would be completely 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 the law 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.

The signature of the testatrix is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the will. In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed also at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the both sheets be further signed on their margins by the testator and the witnesses, or be paged.

Likewise, the will was executed in the City of Cebu and in the dialect of this locality where the testatrix was a neighbour is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which the will is written.

ATTESTATION CLAUSE

FELIX AZUELA vs. COURT OF APPEALS, GERALDA AIDA CASTILLO, et al.

GR No. 122880, April 12, 2006

Facts

The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on June 10, 1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino. The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The probate petition adverted to only two heirs, legatees and devisees of the decedent, namely: petitioner and Irene Lynn Igsolo.

The petition was opposed by Geralda Aida Castillo, who was represented herself as the attorney-in-fact of the 12 legeitimate heirs of the decedent.Castillo claimed that the will is a forgery and that the will was not executed and attested to in accordance with the law. She pointed out the decedent’s signature did not appear on the second page of the will, and it was not properly acknowledged.

Issue

Whether or not the will must be admitted for probate

Ruling

The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnesses and subscribed to.

There is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of. However in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will.

Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be attested and subscribed by the instrumental witnesses. The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses’ undertaking in the clause, since the signatures that do witnesses’ undertakings in the clause, since the signature that do appear on the page were directed towards a wholly different avowal.

Likewise the requirement under Article 806 that every will must be acknowledged before a notary public by the testator and the witnesses has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import.

TESTATE ESTATE OF THE LATE ALIPIO ABADA, et al. vs. ALIPIO ABAJA, et al.

GR No. 147145, January 31, 2005

Facts

Alipio Abada died in May 1940. His widow Paula Toray died in September 1943. Both died without legitimate children.

Alipio Abaja filed a petition for the probate of the last will and testament of Abada. Abada allegedly named as his testamentary heirs his natural Eulogio Abaja and Rosario Cordova. Alipio is the son of Eulogio.

Nicanor Caponong opposed the petition on the following grounds (1) that Abada left no will when he died in 1940; (2) and that the will was not executed in accordance with the formalitites of the law.

Likewise, the will of Toray was submitted for probate but was also opposed by the same parties on the same grounds.

The probate court admitted the wills to probate which on appeal was affirmed by the appellate court.

Issue

Whether or not the court a quo erred in admitting to probate the will of the decedent

Ruling

Under Section 618 of the Code of Civil Procedure, the law applicable at the time of execution of Abada’s will provide that the attestation clause shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other.

An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved.

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

A scrutiny of Abada’s will shows that it has an attestation clause. It shows that the will consists of two pages and were numbered correlatively with the letters “ONE” and “TWO.” The will also provides that it was subscribed and professed by the testator as his last will and testament in the presence of the witnesses, and that the testator having also signed it in their presence on the left margin. The attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses.

Furthermore applying the rule on substantial compliance in determining the number of witnesses, while the attestation clause does nit state the number of witnesses, a close inspection of the will shows that the three witnesses signed it.

TEODORO CANEDA, et al. vs. COURT OF APPEALS, et al.

GR No. 103554, May 28, 1993

Facts

On December 5, 1978, Mateo Caballero, a widower without any children executed a last will and testament before three attesting witnesses. The said testator was duly assisted by his lawyer in the preparation of that last will.

The testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator.

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

Herein petitioners, claiming to be nephews and nieces of the testator, objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the testator was already in a poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein.

The probate court found that last will and testament of Mateo Caballero was executed in accordance with all the requisites of law. On appeal, respondent court promulgated its decision affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with the law.

Issue

Whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of law

Ruling

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, should state (1) the number of pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the

presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages; whereas the subscription of the signatures of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses.

An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator.

The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting witnesses thereto. It will be noted that Article 805 requires that the witnesses should both attest and subscribe to the will in the presence of the testator and of one another.

A careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same 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 spaces provided for his signature and on the left hand margin obviously refers to the testator and the instrumental witnesses. The statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another was clearly lacking.

The absence of that 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 admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance.

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, et al. vs. HON. AVELINO ROSAL

No. L-36033, November 5, 1982

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 instrumental witnesses. The second page which contains the attestation clause and the acknowledgement is signed at the end of the attestation clause by the three witnesses and at the left margin by the testatrix.

Since no opposition was filed after the petitioner’s compliance with the requirement of publication and the trial court received evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court ordered the denial of the probate of the will of the decedent for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs.

Issue

Whether or not the denial of the probate of the will is proper

Ruling

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.

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.

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 is no question of fraud or substitution behind the questioned will.

An examination of the will in question and it is noticed that the attestation clause failed to state the number of pages used in making the will. This could have been a fatal defect were it not the fact that, in this case, it is discernible from the entire will hat it is really and actually composed of only two pages which was signed by the testatrix and her instrumental witnesses.

The first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the bottom while the instrumental witness signed at the left margin. The other page which is marked as “Pagina” comprises the attestation clause and the acknowledgment. The acknowledgment itself states that “this last will and testament consists of two pages including this page.

In the Matter of the Petition to Probate of the Will Of Digna Maravilla

Herminio Maravilla and Adelina Sajo vs. Pedro Maravilla, et. al.

1971 February 27 G.R. No. L-23225

Facts:

In view of the trial court's decision of 8 February 1960 refusing probate of the will, the instituted heir, Herminio Maravilla, and the legatee, Adelina Sajo, perfected their appeal, assigning as errors the findings of the trial court that (a) instrumental witness Aquilino Mansueto did not actually see Digna Maravilla sign the will; (b) that Digna Maravilla was not present when Mansueto signed the will as witness; (c) that Mansueto "most probably" did not see Mariano Buenaflor sign as witness to the will; (d) the testimony of attorney Manuel Villanueva on the due execution of Digna Maravilla's testament was biased and not deserving of credit; and (e) in refusing probate to the alleged will for not having been executed with the requisites prescribed by Section 618 of Act 190.

At the hearing before the court a quo, only one of the three instrumental witnesses, Col. (ret.) Aquilino Mansueto, appeared and testified, inasmuch as the other two witnesses (Timoteo Hernaez and Mariano Buenaflor) concededly died prior to the trial of the case. Col. Mansueto identified his own signature and those of Dr. Timoteo Hernaez and of Digna Maravilla, and asserted that the latter did sign in the presence of all three witnesses and attorney Villanueva; that Hernaez signed in his presence and in the presence of the other witnesses and of Digna Maravilla and that present at the signing were "Dr. Timoteo Hernaez, Mr. Mariano Buenaflor, attorney Manuel Villanueva and both Herminio Maravilla and Mrs. Digna Maravilla, (the testatrix) and identified his signature and those of Digna and Hernaez although, subsequently, the witness admitted that he could not remember very well whether Mr. Maravilla was there at the time he signed the will. The witness explained that he could not remember some details because fourteen years had elapsed, and when he signed as a witness, he did not give it any importance and because of the time he (Col. Mansueto) was very worried because of rumours that the Japanese Kempeitai would arrest officers of the USAFFE who did not want to collaborate.

Issue:

Whether or not the decision of the probate court denying the probate of the will is proper.

Held:

In our opinion, the trial court's conclusion is far fetched, fanciful and unwarranted. It was but natural that witness Mansueto should be positive about his own signature, since he was familiar with it. He had to be less positive about Digna Maravilla's signature since he could not be closely acquainted with the same: for aught the record shows, the signing of the will was the only occasion he saw her sign; he had

no opportunity to study her signature before or after the execution of Exhibit "A." Furthermore, he witnessed Digna's signing not less than fourteen years previously. To demand that in identifying Digna's signature Mansueto should display a positiveness equal to the certainty shown by him in recognizing his own, exceeds the bounds of the reasonable. The variation in the expressions used by the witness is the best evidence that he was being candid and careful, and it is a clear badge of truthfulness rather than the reverse.

The trial court's error gains no support from Mansueto's statement on cross-examination that "I remember and I signed the will in the presence of all the witnesses and in the presence of attorney Villanueva". In the absence of an assurance that no one else was present, this assertion does not really contradict Mansueto's testimony in chief that "I have read the entire document before I signed it in the presence of the other witnesses, Digna Maravilla and Attorney Villanueva" . It is well to note that the cross examiner did not ask Mansueto if no one else besides those mentioned by him had seen him sign. Any contradiction inferred from both statements is purely conjectural; it did not come from the witness and is insufficient to impeach his veracity, the difference in the answers being due to no more than an accidental lapse of memory. A will may be allowed even if some witnesses not remember having attested it, if other evidence satisfactorily show due execution, and that failure of witness to identify his signature does not bar probate.

That Mansueto, Hernaez and Buenaflor, together with the testatrix and the lawyer, sat next to one another around one table when the will was signed is clearly established by the uncontradicted testimony of both attorney Villanueva and Herminio Maravilla; and that detail proves beyond doubt that each one of the parties concerned did sign in the presence of all the others. It should be remembered, in this connection, that the test is not whether a witness did see the signing of the will but whether he was in a position to see if he chose to do so.

Moreover the Court has no hesitation in accepting the latter's view that Digna Maravilla was competent to make the will when it was signed. The law itself declares that

"To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties or that his mind be wholly unbroken, unimpaired or unshattered by disease, injury or other cause." The court is satisfied that the preponderance of evidence is to the effect that the testament, Exhibit "A," was duly executed by a qualified testatrix and competent witnesses, in conformity with the statutory requirements.

Rosario Feliciano Vda. De Ramos, et. al. vs. The Honorable Court of Appeals

1978 January 31 .R. No. L-40804

Facts:

Adelaida Nista, who claimed to be one of the instituted heirs, filed a petition for the probate of the alleged will and testament dated March 9, 1963 and codicil dated April 18, 1963 of the late Eugenia Danila who died on May 21, 1966. The petitioner prayed that after due notice and proper hearing, the alleged will and codicil be probated and allowed and that she or any other person be appointed as administrator of the testatrix's estate. She also prayed that in case no opposition thereto be interposed and the value of the estate be less than P10,000.00, said estate be summarily settled in accordance with the Rules.

Buenaventura and Marcelina both surnamed Guerra, filed an opposition and later on an amended opposition to the petition alleging among others that they are the legally adopted son and daughter of the late spouses Florentino Guerra and Eugenia Danila; that the purported will and codicil subject of the petition were procured through fraud and undue influence; that the formalities required by law for the execution of a will and codicil have not been complied with as the same were not properly attested to or executed and not expressing the free will and deed of the purported testatrix; that the late Eugenia Danila had already executed her last will and testament which was duly probated and not revoked or annulled during the lifetime of the testatrix, and that the petitioner is not competent and qualified to act as administratrix of the estate.

Issue:

Whether or not the last testament and its accompanying codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary.

Held:

The oppositors' argument is untenable. There is ample and satisfactory evidence to convince the Court that the will and codicil were executed in accordance with the formalities required by law. It appears positively and convincingly that documents were prepared by a lawyer, Atty. Manuel Alvero. The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. The solemnity surrounding the execution of a will is attended by some intricacies not usually within the comprehension of an ordinary layman. The object is to close

the door against bad faith and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity.

If there should be any stress on the participation of lawyers in the execution of a will, other than an interested party, it cannot be less than the exercise of their primary duty as members of the Bar to uphold the lofty purpose of the law. There is no showing that the above-named lawyers had been remiss in their sworn duty. Consequently, respondent court failed to consider the presumption of regularity in the execution of the questioned documents. There were no incidents brought to the attention of the trial court to arouse suspicion of anomaly while the opposition alleged fraud and undue influence, no evidence was presented to prove their occurrence. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly, the attestation clauses, far from being deficient, were properly signed by the attesting witnesses. Neither is it disputed that these witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution.

Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause which, significantly, is a separate memorandum or record of the facts surrounding the conduct of execution. Once signed by the attesting witnesses, it affirms that compliance with the indispensable legal formalities had been observed. This Court had previously held that the attestation clause basically contradicts the pretense of undue execution which later on may be made by the attesting witnesses. In the attestation clause, the witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signatures following that of the testatrix show that they have in fact attested not only to the genuineness of the testatrix's signature but also to the due execution of the will as embodied in the attestation clause. By signing the will, the witnesses impliedly certified to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of the testatrix, the absence of undue influence, and the like.

In re will of Maria Roque y Paraiso, deceased.

Ceferinino Aldaba vs. Ludovico Roque

1922 May 22 G.R. No. 17304

Facts:

Maria Roque y Paraiso executed her last will and testament in the Tagalog dialect with the help of Vicente Platon and in the presence of three witnesses who signed the attestation clause and each of the four pages of the testament. Maria Roque died on December 3, 1919, and when her will was filed in court for probate, it was contested by Ludovico Roque on the ground that it had not been prepared nor executed in conformity with the requirements and solemnities prescribed by law.

After due proceedings had been had, the Court of First Instance of Bulacan by its decision pronounced the testament in question valid, and ordered its probate, appointing Ceferino Aldaba as the administrator of the estate.

Issues:

Whether or not the subject will is not paged correlatively in letters and whether or not the said will lacks the attestation clause required by law.

Held:

The Court has examined the document which is the will I question and in reality, it appears that it is the testatrix who makes the declaration about the points contained in the said will and as the witnesses, together with the testatrix, have signed the said declaration, this Court holds that the words above quoted of the testament constitute a sufficient compliance with the requirements of section 1 of Act. No. 2645 which provides that:

"The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of each other."

In regard to the other assignment of error, to wit, that each of the folios of the said testament is not paged correlatively in letters "one," "two", "three", etc., but only with the letters A, B, C, etc., this Court is of the opinion that this method of indicating the paging of the testament is a compliance with the spirit of the law, since either one of the two ways above-mentioned indicates the correlation of the pages and serves to prevent the loss of any of them. It might be said that the object of the law in requiring that the paging be made in letters is to make falsification more difficult, but it should be noted

that since all the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to forge the signature. And as in the present case there exists the guaranty of the authenticity of testament, consisting in the signatures on the left margins of the testament and the paging thereof as declared in the attestation clause.

This Court does not desire to intimate that the numbering in letters is a requisite of no importance. But since its principal object may be attained by writing "one," "two," "three," etc., as well as by writing A, B, C, etc. Following, therefore, the view maintained by this court in the case of Abangan vs. Abangan, as regards the appreciation of the solemnities of a testament, we decide that the judgment appealed from must be affirmed.

In re will of Antonio Vergel de Dios, deceased.

Ramon J. Fernandez, et. al. vs. Fernando Vergel De Dios et. al.

25 February 1924 GR. No. L-21151

Facts:

Ramon J. Fernandez asked for the court that the will of Antonio Vergel De Dios be probated. This was contested by Fernando Vergel de Dios and Francisco, Ricardo and Virgilio Rustia.

Subsequently the Court of First Instance of Manila denied probate of the will. The applicant takes the present appeal, assigning error to the action of the lower court in holding the attestation fatally defective and in not finding Act No. 2645 void.

Issues:

Was it sufficiently proven that the testator knew the contents of the will? Is the numbering of the sheet containing the attestation clause imperative in the validity of the will?

Held:

The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the testator, the latter's mind was perfectly sane and he understood it; that he signed all the pages of the will proper, although he did not sign the page containing the attestation clause; that while he did not personally call the witnesses, yet the latter were invited by Attorney Lopez Lizo to act as such in his presence. The law does not require that the testator precisely be the person to request the witnesses to attest his will. It was also sufficiently established in the record, besides being stated in the attestation clause, that the testator signed the will in the presence of the three witnesses and that the latter, in turn, signed it in the presence of the testator and of each other, the testator knowing that the witnesses were signing his will; that the witnesses signed the attestation clause before the death of the testator; that this clause, with the names of the witnesses in blank, was prepared before the testator signed the will, and that the sheet containing said clause, just as those of the will proper, was a loose sheet, and that all the four sheets of which the will Exhibit A was actually composed were kept together and are the very ones presented in this case; and finally, that the signatures of the testator on page 3 of said exhibit are authentic.

As to the numbering of the sheet containing the attestation clause, it is true that it does not appear on the upper part of the sheet, but it does appear in its text, with the words, having reference to the number of sheets of the will, including the page number of the attestation:

Thus, if, as stated in the clause, the foregoing document consists of three sheets, besides that of the clause itself, which is in singular, it is clear that such a sheet of the attestation clause is the fourth and that the will, including said sheet, has four sheets. This description contained in the clause in question constitutes substantial compliance with the requirements prescribed by the law regarding the paging. Furthermore, the law, does not require that the sheet containing nothing but the attestation clause, wholly or in part, be numbered or paged. Consequently this lack of paging on the attestation sheet does not take anything from the validity of the will.

Concerning the absolute absence of the signature of the testator from the sheet containing the attestation clause, the testator's signature is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator.

SPECIAL CASES

Garcia vs. Vasquez

32 SCRA 490

Facts:

Gliceria Avelino del Rosario died in the City of Manila leaving no descendants, ascendants, brothers or sisters. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate consisting mostly of real properties.

Subsequently, Consuelo S. Gonzales vda de Precilla, a niece of the deceased, petitioned the Court of First Instance of Manila for the probate of the alleged last will and testament of Gliceria A. del Rosario. The petition was opposed by several groups of alleged heir. The oppositors invariably charged that the instrument executed in 1960 was not intended by the decedent to be her true will; that the signature of the deceased appearing in the will was procured through undue and improper pressure and influence on the part of the beneficiaries and/or other persons; that the testatrix did not know the object of her bounty; that the instrument itself reveals irregularities its execution, and that the formalities required by law for such execution have not been complied with.

On appeal, the oppositors-appellant challenged the correctness of the probate court’s ruling. They maintained that on 29 December 1960 the eyesight of Gliceria del rosario was poor and defective that she could not have read the provisions of the will, contrary to the testimonies of the witnesses.

Issue:

Whether or not there is irregularity in the execution of the will under consideration.

Held:

The testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of the actual condition of her eyesight from August 1960 up to 1963, fully established the fact that notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic lens, her vision remained mainly for viewing objects and not for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight, Gliceria could have not read the provisions of the will supposedly signed by her in 1960.

In the Matter of the Probate of the Last Will and Testament of the Deceased

Brigido Alvarado, Cesar Alvarado vs. Hon Ramon G. Gaviola, Jr., et. al.

14 September 1993 G.R. No. 74695

Facts:

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before the trial court of Laguna.

As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa 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. Brigido was then 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.

A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor. Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution 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 and improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.

Issues:

Was Brigido Alvarado blind for purposes of Art. 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with?

Held:

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads: "Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing, witnesses, and again, by the notary public before whom the will is acknowledged."

"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."

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading their wills." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for this Court but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential to ascertain whether Art. 808 had been complied with.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance is a strict compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been disallowed.

The Court sustains private respondent's stand and necessarily, the petition must be denied. This Court has held in a number of occasions that 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 the case at bar, 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. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft.

Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the 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.

WITNESS TO WILLS

Agapita N. Cruz vs. Hon. Judge Guillermo P. Villasor and Manuel B. Lugay

26 November 1973

Facts:

Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased, opposed the allowance of the will, alleging that the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was executed without the testator having been fully informed of the contents thereof, particularly as to what properties he was disposing; and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament. Hence this appeal by certiorari which was given due course.

Issue:

Whether or not the supposed last will and testament of Valente Z. Cruz was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, 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:

The three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them.

After weighing the merits of the conflicting claims of the parties, the Court is inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. 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; 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 arrangements. That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For them he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted.

Rizalina Gabriel Gonzales vs. Honorable Court of Appeals and Lutgarda Santiago

25 May 25 1979 G.R. No. L-37453

Facts:

Private respondent Lutgarda Santiago filed a petition for the probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue at the age of eighty-five (85). It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latter's residence prior and up to the time of her death.

The will submitted for probate which is typewritten and in Tagalog, appears to have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages.

Issue:

Whether or not the witnesses are qualified under the will to witness the same.

Held:

Article 820 of the Civil Code provides the qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a will. These Articles state: "Art. 820.Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code.

"Art. 821.The following are disqualified from being witnesses to a will:

(1)Any person not domiciled in the Philippines, (2)Those who have been convicted of falsification of a document, perjury or false testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. The Court rejects petitioner's contention that it must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.

HOLOGRAPHIC WILLS

ROSITA LABRADOR et al vs. CA et al

GR. NO. 83843-44, APRIL 5, 1990

Facts:

On June 10, 1972, Melecio Labrador died leaving behind a parcel of land in Iba Zambales. It was alleged that he executed a holographic will. On July 28, 1975, Sagrado Labrador et al filed a petition for the probate of the will of Melecio. This was opposed by Jesus Labrador on the ground that the will was revoked by implication of law since after the execution of the will, Melecio sold the parcel of land to Jesus and Gaudencio. Sagrado then filed a case for annulment of the sale against his brothers.

The probate court allowed the legalization of the will and ordered the annulment of the deed of sale. The Court of Appeals however denied the allowance of the will on the ground that the same was undated.

Issue:

Whether or not the appellate court erred in denying the allowance of the will

Ruling:

Yes. The holographic will was dated although the date is not in the usual place but was written in the body of the will. The law does not specify a particular location where the date should be placed in the will.

The decedent’s intention that March 17, 1968 was clear from the tenor of the paragraphs as contained in the will. The will was not an agreement to partition but a unilateral act on the part of Melecio who knew that he was executing a will.

Hence the Supreme Court reversed the decision of the appellate court and allowed the legalization of the will.