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Balonan vs. Abellana GR No. L-15153, August 31, 1960

Facts: A 2-page Will and Testament by the testatrix Anacleta Abellana wassought to be probated at rhe CFI of Zamboanga City. ON the second page,which is the last page of the Will, on the left margin appears the signature

of Juan Bello under whose name appears handwritten the following phrase'Por la Testadora Anacleta Abellana' (for the tetattrix Anacleta Abellana).(The CFI admitted the probate of the will. Hence, this appeal, thepetitioner contending that the signature of Juan A. Abello on top of thephrase por la tetadora Anacleta Abellana did not comply with therequirements of the law prescribing the manner in which it ill beexecuted.)

ISSUE: Does the signature of Dr. Juan A. Abello above the typewrittenstatement "Por la Testadora Anacleta Abellana . . ., Ciudad deZamboanga," comply with the requirements of the law prescribing the

manner in which a will shall be executed?

HELD: The present law, Article 805 of the Civil Code, in part provides asfollows:"Every will, other than a holographic will, must be subscribed at the endthereof by the testator himself or by the testator's name written by someother person in his presence, and by his express direction, and attestedand subscribed by three or more credible witnesses in the presence of thetestator and of one another." (Italics supplied.)In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the

important thing is that it clearly appears that the name of the testatrixwas signed at her express direction; it is unimportant whether the personwho writes the name of the testatrix signs his own or not. Cases of thesame import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluyavs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).In the case at bar the name of the testatrix, Anacleta Abellana, does notappear written under the will by said Abellana herself, or by Dr. JuanAbello. There is, therefore, a failure to comply with the expressrequirement in the law that the testator must himself sign the will, or thathis name be affixed thereto by Some other person in his presence and byhis express direction.

It appearing that the above provision of the law has not been compliedwith, we are constrained to declare that the said will of the deceasedAnacleta Abellana may not be admitted to probate.

Taboada vs. Rosal GR L-36033. November 5, 1982

FACTS Petitioner Apolonio Taboada filed a petition for probate of the willof the late Dorotea perez. The will consisted of two pages, the first pagecontaining all the testamentary dispositions of the testator and wassigned at the end or bottom of the page by the testatrix alone and at theleft hand margin by the three instrumental witnesses. The second page

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consisted of the attestation clause and the acknowledgment was signed atthe end of the attestation clause by the three witnesses and at the lefthand margin by the testatrix. The trial court disallowed the will for want offormality in its execution because the will was signed at the bottom of thepage solely by the testatrix, while the three witnesses only signed at the

left hand margin of the page. The judge opined that compliance with theformalities of the law required that the witnesses also sign at the end ofthe will because the witnesses attest not only the will itself but thesignature of the testatrix. Hence, this petition.

ISSUE Was the object of attestation and subscription fully when theinstrumental witnesses signed at the left margin of the sole page whichcontains all the testamentary dispositions?HELD (SHORT RULING)

On certiorari, the Supreme Court held a) that the objects of attestationand subscription were fully met and satisfied in the present case when theinstrumental witnesses signed at the left margin of the sole page whichcontains all the testamentary dispositions, especially so when the will wasproperly identified by a subscribing witness to be the same will executedby the testatrix; and b) that the failure of the attestation clause to statethe number of pages used in writing the will would have been a fataldefect were it not for the fact that it is really and actually composed ofonly two pages duly signed by the testatrix and her instrumentalwitnesses.

(LONG RULING [VERBATIM])

Undoubtedly, under Article 805 of the Civil Code, the will must besubscribed or signed at its end by the testator himself or by the testator'sname written by another person in his presence, and by his expressdirection, and attested and subscribed by three or more crediblewitnesses 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 inorder 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 thetestator exists as a fact. On the other hand, subscription is the signing ofthe witnesses' names upon the same paper for the purpose ofidentification of such paper as the will which was executed by thetestator. (Ragsdale v. Hill, 269 SW 2d 911).

The signatures of the instrumental witnesses on the left margin of the firstpage of the will attested not only to the genuineness of the signature ofthe testatrix but also the due execution of the will as embodied in theattestation clause.

While perfection in the drafting of a will may be desirable, unsubstantialdeparture from the usual forms should be ignored, especially where the

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authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444,449).The law is to be liberally construed, "the underlying and fundamentalobjective permeating the provisions on the law on wills in this projectconsists in the liberalization of the manner of their execution with the end

in view of giving the testator more freedom in expressing his last wishesbut with sufficient safeguards and restrictions to prevent the commissionof fraud and the exercise of undue and improper pressure and influenceupon the testator. This objective is in accord with the modern tendency inrespect to the formalities in the execution of a will" (Report of the CodeCommission, p. 103).The objects of attestation and of subscription were fully met and satisfiedin the present case when the instrumental witnesses signed at the leftmargin of the sole page which contains all the testamentary dispositions,especially so when the will was properly identified by subscribing witnessVicente Timkang to be the same will executed by the testatrix. There wasno question of fraud or substitution behind the questioned order.

Payad vs. Tolentino G.R. No. 42258. January 15, 1936

FACTS Victorio Payad filed a petition for the probate of the will of thedecedent Leoncia Tolentino. This was opposed by Aquilina Tolentino,averring that said Will was made only after the death of the testatrix. Thelower court denied the probate of the will on the ground that theattestation clause was not in conformity with the requirements of the law

since it was not stated therein that the testatrix caused Atty. Almario towrite her name at her express direction. Hence, this petition.

ISSUE Was it necessary that the attestation clause state that thetestatrix 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 everypage of the questioned will and that said attorney merely wrote her nameto indicate the place where she placed said thumb mark. In other wordsAttorney Almario did not sign for the testatrix. She signed by placing herthumb mark on each and every page thereof. "A statute requiring a will tobe '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 andOna, 53 Phil., 104, 108.) It is clear, therefore, that it was not necessarythat the attestation clause in question should state that the testatrixrequested Attorney Almario to sign her name inasmuch as the testatrixsigned the will in question in accordance with law.

Matias vs. Salud

G.R. L-10907 June 29, 1957Ponente: Concepcion, J.

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Facts:1. This case is an appeal from a CFI Cavite order denying the probate ofthe will of Gabina Raquel. The document consist of 3 pages and it seemsthat after the attestation clause, there appears the siganture of the

testatrix 'Gabina Raquel', alongside is a smudged in violet ink claimed bythe proponents as the thumbmark allegedly affixed by the tetratrix. Onthe third page at the end of the attestation clause appears signatures onthe left margin of each page, and also on the upper part of each leftmargin appears the same violet ink smudge accompanied by the writtenwords 'Gabina Raquel' with 'by Lourdes Samonte' underneath it.

2. The proponent's evidence is to the effect that the decedent allegedlyinstructed Atty. Agbunag to drat her will and brought to her on January1950. With all the witnesses with her and the lawyer, the decedent affixedher thumbmark at the foot of the document and the left margin of eachpage. It was also alleged that she attempted to sign using a sign pen butwas only able to do so on the lower half of page 2 due to the pain in herright shoulder. The lawyer, seeing Gabina unable to proceed instructedLourdes Samonte to write 'Gabina Raquel by Lourdes Samonte' next toeach thumbmark, after which the witnesses signed at the foot of theattestation 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 andevery page nor did it express that Lourdes was specially directed to signafter the testatrix.

Issue: Whether or not the thumbprint was sufficient compliancewith the law despite the absence of a description of such in theattestation clause

HELD: YESThe absence of the description on the attestation clause that anotherperson 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 requirementsatisfied by a thumbprint or other mark affixed by him.

As to the issue on the clarity of the ridge impression, it is held to bedependent on the aleatory circumstances. Where a testator employs anunfamiliar way of signing and that both the attestation clause and the willare silent on the matter, such silence is a factor to be considered againstthe authenticity of the testament. However, the failure to describe thesignature itself alone is not sufficient to refuse probate when evidencefully satisfied that the will was executed and witnessed in accordance with

law.

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Garcia v. LacuestaG.R. L-4067 November 29, 1951Ponente: Paras, C.J.

Facts:

1. The CA disallowed the probate of the will of Antero Mercado dated Jan1943. The said will was written in Ilocano dialect.

2. The will appears to have been signed by Atty. Florentino Javier whowrote the name of the testator followed below by 'A ruego del testador'and the name of Florentino Javier. In effect, it was signed by anotheralthough under the express direction of the testator. This fact howeverwas not recited in the attestation clause. Mercado also affixed a cross onthe will.

3. The lower court admitted the will to probate but this order was reversedby the Court of Appeals on the ground that the attestation failed to recitethe facts surrounding the signing of the testator and the witnesses.

Issue: Whether or not the attestation clause in the will is valid

HELD: NO the attestation is fatally defective for its failure to state thatAntero or the testator caused Atty. Javier to write the former's nameunder his express direction as required by Sec. 618 of the Civil Procedure.Finally, on the cross affixed on the will by the testator, the Court held thatit is not prepared to liken the mere sign of a cross to a thumbmark for

obvious reasons- the cross does not have the trustworthiness of athumbmark so it is not considered as a valid signature.Barut vs. Cabacungan

G.R. L-6825 Febriary 15, 1912

Ponente: SC Justice Moreland

Facts:

1.Pedro Barut applied for the probate of the will of Maria Salomon. It is

alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos Sur

leaving the will dated March 3, 1907. The said will was witnessed by 3

persons. From the terms it appears that the petitioner received a larger

part of decedent's property. After this disposition, the testatrix revoked all

other wills and stated that since she is unable to read nor write, the will

was read to her and that she has instructed Severino Agapan, one of the

witnesses to sign her name in her behalf.

2. The lower court ruled that the will is not entitled to probate on the sole

ground that the handwriting of the person who signed the name of the

testatrix does not appear to be that of Agapan but that of another

witness.

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Issue: Whether or not a will's validity is affected when the person

instructed by a testator to write his name did not sign his name

HELD: No, it is immaterial who wrote the name of the testator provided it

is written at her request and in her present, and in the presence of thewitnesses. This is the only requirement under Sec. 618 of the Civil Code of

procedure at that time.

Nera v. RimandoG.R. L-5971 February 27, 1911Ponente: Carson, J.:

'Test of Presence'

Facts:

1. At the time the will was executed, in a large room connecting with asmaller room by a doorway where a curtain hangs across, one of thewitnesses was in the outside room when the other witnesses wereattaching their signatures to the instrument.

2. The trial court did not consider the determination of the issue as to theposition of the witness as of vital importance in determining the case. Itagreed with the ruling in the case of Jaboneta v. Gustillo that the allegedfact being that one of the subscribing witnesses was in the outer roomwhile the signing occurred in the inner room, would not be sufficient to

invalidate the execution of the will.

3. The CA deemed the will valid.

Issue: Whether or not the subscribing witness was able to see thetestator and other witnesses in the act of affixing theirsignatures.

HELD: YESThe Court is unanimous in its opinion that had the witnesses been provento 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 theattaching of the signatures under the circumstances was not done 'in thepresence' of the witnesses in the outer room. The line of vision of thewitness to the testator and other witnesses was blocked by the curtainseparating the rooms.

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

In the Jaboneta case, the true test of presence is not whether or not theyactualy saw each other sign but whether they might have seen each othersign if they chose to doso considering their physical, mental condition and

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G.R. No. L-7179

Facts:1. The CFI of Iloilo admitted to probate a will and codicil executed by thedeceased Apolinaria Ledesma in July 1953. This testament was deemed

executed on May 1950 and May 1952. The contestant was the sister andnearest surviving relative of the deceased. She appealed from thisdecision alleging that the will were not executed in accordance with law.

2. The testament was executed at the house of the testatrix. One theother hand, the codicil was executed after the enactment of the New CivilCode (NCC), and therefore had to be acknowledged before a notarypublic. Now, the contestant, who happens to be one of the instrumentalwitnesses asserted that after the codicil was signed and attested at theSan Pablo hospital, that Gimotea (the notary) signed and sealed it on thesame occasion. Gimotea, however, said that he did not do so, and that theact of signing and sealing was done afterwards.

2. One of the allegations was that the certificate of acknowledgement tothe codicil was signed somewhere else or in the office of the notary. Theix and the witnesses at the hospital, was signed and sealed by the notaryonly when he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicilin the absence of the testator and witnesses affects the validityof the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does notrequire that the signing of the testator, the witnesses and the notary beaccomplished in one single act. All that is required is that every will mustbe acknowledged before a notary public by the testator and witnesses.The subsequent signing and sealing is not part of the acknowledgementitself nor of the testamentary act. Their separate execution out of thepresence of the testator and the witnesses cannot be a violation of therule that testaments should be completed without interruption.

Cruz v. VillasorG.R. L-32213 November 26, 1973Ponente: Esguerra, J.:

Facts:1. The CFI of Cebu allowed the probate of the last will and testament ofthe late Valenti Cruz. However, the petitioner opposed the allowance ofthe will alleging that it was executed through fraud, deceit,misrepresentation, and undue influence. He further alleged that theinstrument was executed without the testator having been informed of itscontents and finally, that it was not executed in accordance with law.

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2. One of the witnesses, Angel Tevel Jr. was also the notary before whomthe will was acknowledged. Despite the objection, the lower courtadmitted the will to probate on the ground that there is substantialcompliance with the legal requirements of having at least 3 witnesseseven if the notary public was one of them.

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

HELD: NO.The will is not valid. The notary public cannot be considered as the thirdinstrumental witness since he cannot acknowledge before himself hishaving signed the said will. An acknowledging officer cannot serve aswitness 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 appearbefore 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 anyillegal or immoral arrangements, a function defeated if he were to be oneof the attesting or instrumental witnesses. He would be interested insustaining the validity of the will as it directly involves himself and thevalidity 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. VasquezG.R. No. L-26808 March 28, 1969Fernando, J (Ponente)

Facts:1. Gliceria del Rosario executed 2 wills, one in June 1956, written inSpanish, a language she knew an spoke. The other will was executed inDecember 1960 consisting of only one page, and written in Tagalog. The

witnesses to the 1960 will declared that the will was first read 'silently' bythe testatrix before signing it. The probate court admitted the will.

2. The oppositors alleged that the as of December 1960, the eyesight ofthe deceased was so poor and defective that she could not have read theprovisions contrary to the testimony of the witnesses.

Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of the NewCivil Code (NCC) should apply.If the testator is blind or incapable ofreading, he must be apprised of the contents of the will for him to be able

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to have the opportunityto object if the provisions therein are not inaccordance with his wishes.

The testimony of her opthalmologist established that notwithstanding anoperation to remove her cataract and being fitted with the lenses, this did

not improve her vision. Her vision remained mainly for viewing distantobjects and not for reading. There was no evidence that her visionimproved at the time of the execution of the 2nd will. Hence, she wasincapable of reading her own will. The admission of the will to probate istherefor erroneous.

Alvarado v. Gaviola226 SCRA 347

FACTS:

On 5 November 1977, 79-year old Brigido Alvarado executed a notarialwill entitled Huling Habilin wherein he disinherited an illegitimate son,petitioner Cesar Alvarado, and expressly revoked a previously executedholographic will at the time awaiting probate before the RTC of Laguna.According to Bayani Ma. Rino, private respondent, he was present whenthe said notarial will was executed, together with three instrumentalwitnesses and the notary public, where the testator did not read the willhimself, suffering as he did from glaucoma.Rino, a lawyer, drafted the eight-page document and read the same aloudbefore the testator, the three instrumental witnesses and the notary

public, the latter four following the reading with their own respectivecopies previously furnished them.Thereafter, a codicil entitled Kasulatan ng Pagbabago ng IlangPagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5,1977 ni Brigido Alvarado was executed changing some dispositions in thenotarial will to generate cash for the testators eye operation.Said codicil was likewise not read by Brigido Alvarado and was read in thesame manner as with the previously executed will.When the notarial will was submitted to the court for probate, CesarAlvarado filed his opposition as he said that the will was not executed andattested as required by law; that the testator was insane or mentally

incapacitated due to senility and old age; that the will was executed underduress, or influence of fear or threats; that it was procured by unduepressure and influence on the part of the beneficiary; and that thesignature of the testator was procured by fraud or trick.

ISSUE:

W/N notarial will of Brigido Alvarado should be admitted to probatedespite allegations of defects in the execution and attestation thereof astestator was allegedly blind at the time of execution and the double-

reading requirement under Art. 808 of the NCC was not complied with.

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HELD:

YES. The spirit behind the law was served though the letter was not.Although there should be strict compliance with the substantialrequirements of law in order to insure the authenticity of the will, the

formal imperfections should be brushed aside when they do not affect itspurpose and which, when taken into account, may only defeat thetestators 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, buthe 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 thepurpose of the law has been satisfied: that of making the provisionsknown 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 accordwith his wishes.Rino read the testators will and codicil aloud in the presence of thetestator, 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 notsufficiently made known and communicated to the testator.With four persons, mostly known to the testator, following the readingword for word with their own copies, it can be safely concluded that the

testator was reasonably assured that what was read to him were theterms actually appearing on the typewritten documents.The rationale behind the requirement of reading the will to the testator ifhe is blind or incapable of reading the will to himself (as when he isilliterate), is to make the provisions thereof known to him, so that he maybe able to object if they are not in accordance with his wishes.Although there should be strict compliance with the substantialrequirements of law in order to insure the authenticity of the will, theformal imperfections should be brushed aside when they do not affect itspurpose and which, when taken into account, may only defeat thetestators will.

CANEDA vs. CA41 SCAD 968, May 28, 1993

FACTS:

The oppositors of the probate of the will asserted that the will in questionis null and void for the reason that its attestation clause is fatallydefective since it fails to specifically state that the witnesses subscribed

their respective signatures to the will in the presence of the testator andof each other.

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ISSUE:

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

Article 805, in relation to Article 809, of the Civil Code

HELD:

Article 805 requires that the witness should both attest and subscribe tothe will in the presence of the testator and of one another. Attestation isthe act of senses, while subscription is the act of the hand. The former ismental, the latter mechanical, and to attest a will is to know that it waspublished as such, and to certify the facts required to constitute an actualand legal publication; but subscription, on the other hand, is only to writeon the same paper the names of the witnesses, for the sole purpose ofidentification.What is fairly apparent upon a careful reading of the attestation clauseherein assailed is the fact that while it recites that the testator indeedsigned the will and all its pages in the presence of the three attestingwitnesses and states as well the number of pages that were used, thesame does not expressly state therein the circumstance that saidwitnesses subscribed their respective signatures to the will in thepresence of the testator and of each other.

What is then clearly lacking, in the final logical analysis, is the statement

that the witnesses signed the will and every page thereof in the presenceof the testator and of one another.

The absence of that statement required by law is a fatal defect orimperfection which must necessarily result in the disallowance of the willthat is here sought to be admitted to probate.

Roxas v. De Jesus134 SCRA 245

FACTS:

Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. forpartition of the estate of the deceased and also delivered the holographicwill of the deceased. Simeon stated that he found a notebook belonging todeceased, which contained a letter-will entirely written and signed indeceaseds handwriting. The will is dated FEB./61 and states: This ismy will which I want to be respected although it is not written by a lawyer.Roxas relatives corroborated the fact that the same is a holographic will ofdeceased, identifying her handwriting and signature. Respondent opposedprobate on the ground that it such does not comply with Article 810 of the

CC because the date contained in a holographic will must signify the year,month, and day.

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ISSUE:

W/N the date FEB./61 appearing on the holographic Will of thedeceased Bibiana Roxas de Jesus is a valid compliance with the Article810 of the Civil Code.

HELD:

Valid date.

This will not be the first time that this Court departs from a strict andliteral application of the statutory requirements regarding the dueexecution of Wills. The underlying and fundamental objectives permeatingthe provisions of the law wills consists in the liberalization of the mannerof their execution with the end in view of giving the testator morefreedom in expressing his last wishes, but with sufficient safeguards andrestrictions to prevent the commission of fraud and the exercise of undueand improper pressure and influence upon the testator. If a Will has beenexecuted in substantial compliance with the formalities of the law, and thepossibility of bad faith and fraud in the exercise thereof is obviated, saidWill should be admitted to probate (Rey v. Cartagena 56 Phil. 282).

If the testator, in executing his Will, attempts to comply with all therequisites, although compliance is not literal, it is sufficient if the objectiveor purpose sought to be accomplished by such requisite is actuallyattained by the form followed by the testator. In Abangan v. Abanga 40

Phil. 476, we ruled that: The object of the solemnities surrounding theexecution of wills is to close the door against bad faith and fraud, to avoidsubstitution of wills and testaments and to guaranty their truth andauthenticity.

In particular, a complete date is required to provide against suchcontingencies as that of two competing Wills executed on the same day,or of a testator becoming insane on the day on which a Will was executed(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no

evidence of bad faith and fraud in its execution nor was there anysubstitution of Wins and Testaments. There is no question that theholographic Will of the deceased Bibiana Roxas de Jesus was entirelywritten, dated, and signed by the testatrix herself and in a languageknown to her. There is also no question as to its genuineness and dueexecution. All the children of the testatrix agree on the genuineness of theholographic Will of their mother and that she had the testamentarycapacity at the time of the execution of said Will. The objection interposedby the oppositor-respondent Luz Henson is that the holographic Will isfatally defective because the date FEB./61 appearing on the

holographic Will is not sufficient compliance with Article 810 of the CivilCode. This objection is too technical to be entertained.

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As a general rule, the date in a holographic Will should include the day,month, and year of its execution. However, when as in the case at bar,there is no appearance of fraud, bad faith, undue influence and pressureand the authenticity of the Will is established and the only issue iswhether or not the date FEB./61 appearing on the holographic Will is a

valid compliance with Article 810 of the Civil Code, probate of theholographic Will should be allowed under the principle of substantialcompliance.

Labrador v. CA184 SCRA 170

FACTS:

Melecio died leaving behind a parcel of land to his heirs. However, duringprobate proceedings, Jesus and Gaudencio filed an opposition on theground that the will has been extinguished by implication of law allegingthat before Melecios death, the land was sold to them evidenced by TCTNo. 21178. Jesus eventually sold it to Navat.Trial court admitted the will to probate and declared the TCT null and void.However, the CA on appeal denied probate on the ground that it wasundated.

ISSUE:

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

CC.

HELD:

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

The intention to show March 17 1968 as the date of the execution is plainfrom the tenor of the succeeding words of the paragraph. It states thatthis being in the month of March 17th day, in the year 1968, and this

decision and or instruction of mine is the matter to be followed. And theone who made this writing is no other than Melecio Labrador, theirfather. This clearly shows that this is a unilateral act of Melecio whoplainly knew that he was executing a will.

Azaola v. Singson109 P 102

FACTS:

Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957.Petitioner submitted for probate her holographic will, in which Maria

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Azaola was made the sole heir as against the nephew, who is thedefendant. Only one witness, Francisoco Azaola, was presented to testifyon the handwriting of the testatrix. He testified that he had seen it onemonth, more or less, before the death of the testatrix, as it was given tohim and his wife; and that it was in the testatrixs handwriting. He

presented the mortgage, the special power of the attorney, and thegeneral power of attorney, and the deeds of sale including an affidavit toreinforce his statement. Two residence certificates showing the testatrixssignature were also exhibited for comparison purposes.

The probate was opposed on the ground that (1) the execution of the willwas procured by undue and improper pressure and influence on the partof the petitioner and his wife, and (2) that the testatrix did not seriouslyintend the instrument to be her last will, and that the same was actuallywritten either on the 5th or 6th day of August 1957 and not on November20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the CivilCode, the proponent must present three witnesses who could declare thatthe will and the signature are in the writing of the testatrix, the probatebeing contested; and because the lone witness presented did not provesufficiently that the body of the will was written in the handwriting of thetestatrix.

Petitioner appealed, urging: first, that he was not bound to produce morethan one witness because the wills authenticity was not questioned; and

second, that Article 811 does not mandatorily require the production ofthree witnesses to identify the handwriting and signature of a holographicwill, even if its authenticity should be denied by the adverse party.

ISSUE:

W/N Article 811 of the Civil Code is mandatory or permissive.

HELD:

Article 811 is merely permissive and not mandatory. Since the

authenticity of the will was not contested, petitioner was not required toproduce more than one witness; but even if the genuineness of theholographic will were contested, Article 811 can not be interpreted torequire the compulsory presentation of three witnesses to identify thehandwriting of the testator, under penalty of having the probate denied.Since no witness may have been present at the execution of a holographicwill, none being required by law (Art. 810, new Civil Code), it becomesobvious that the existence of witness possessing the requisitequalifications is a matter beyond the control of the proponent. For it is notmerely a question of finding and producing any three witnesses; they

must be witnesses who know the handwriting and signature of thetestator and who can declare (truthfully, of course, even if the law does

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not so express) that the will and the signature are in the handwriting ofthe testator. There may be no available witness of the testators hand; oreven if so familiarized, the witnesses may be unwilling to give a positiveopinion. Compliance with the rule of paragraph 1 of Article 811 may thusbecome an impossibility.

This is the reason why the 2nd paragraph of Article 811 allows the court toresort to expert evidence. The law foresees the possibility that noqualified witness may be found (or what amounts to the same thing, thatno competent witness may be willing to testify to the authenticity of thewill), and provides for resort to expert evidence to supply the deficiency.

What the law deems essential is that the court should be convinced of thewills authenticity. Where the prescribed number of witnesses is producedand the court is convinced by their testimony that the will is genuine, itmay consider it unnecessary to call for expert evidence. On the otherhand, if no competent witness is available, or none of those produced isconvincing, the Court may still, and in fact it should, resort to handwritingexperts. The duty of the Court, in fine, is to exhaust all available lines ofinquiry, for the state is as much interested as the proponent that the trueintention of the testator be carried into effect.

Gan v. Yap104 P 509

FACTS:

Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan,and in Manila.

Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFIwith a petition for the probate of a holographic will allegedly executed bythe deceased.The will was not presented because Felicidads husband, Ildefonso,supposedly took it. What was presented were witness accounts ofrelatives who knew of her intention to make a will and allegedly saw it aswell. According to the witnesses, Felicidad did not want her husband to

know about it, but she had made known to her other relatives that shemade a will.

Opposing the petition, her surviving husband Ildefonso Yap asserted thatthe deceased had not left any will, nor executed any testament during herlifetime.After hearing the parties and considering their evidence, the Judgerefused to probate the alleged will on account of the discrepancies arisingfrom the facts. For one thing, it is strange that Felicidad made her willknown to so many of her relatives when she wanted to keep it a secret

and she would not have carried it in her purse in the hospital, knowing

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that her husband may have access to it. There was also no evidencepresented that her niece was her confidant.

In the face of these improbabilities, the trial judge had to accept theoppositors evidence that Felicidad did not and could not have executed

such holographic will.

ISSUE:

1. May a holographic will be probated upon the testimony of witnesseswho have allegedly seen it and who declare that it was in the handwritingof the testator?2. W/N Felicidad could have executed the holographic will.

HELD:

1. No. The will must be presented.

The New Civil Code effective in 1950 revived holographic wills in its arts.810-814. A person may execute a holographic will which must be entirelywritten, dated, and signed by the hand of the testator himself. It is subjectto no other form and may be made in or out of the Philippines, and neednot be witnessed.

This is a radical departure from the form and solemnities provided for willsunder Act 190, which for fifty years (from 1901 to 1950) required wills to

be subscribed by the testator and three credible witnesses in each andevery page; such witnesses to attest to the number of sheets used and tothe fact that the testator signed in their presence and that they signed inthe presence of the testator and of each other. Authenticity and dueexecution is the dominant requirements to be fulfilled when such will issubmitted to the courts for allowance. For that purpose the testimony ofone of the subscribing witnesses would be sufficient if there is noopposition (Sec. 5, Rule 77). If there is, the three must testify, if available.From the testimony of such witnesses (and of other additional witnesses)the court may form its opinion as to the genuineness and authenticity ofthe testament, and the circumstances its due execution.

With regard to holographic wills, no such guaranties of truth and veracityare demanded, since as stated, they need no witnesses; providedhowever, that they are entirely written, dated, and signed by the hand ofthe testator himself.In the probate of a holographic will says the New Civil Code, it shall benecessary that at least one witness who knows the handwriting andsignature of the testator explicitly declare that the will and the signatureare in the handwriting of the testator. If the will is contested, at least threesuch witnesses shall be required. In the absence of any such witnesses,

(familiar with decedents handwriting) and if the court deem it necessary,expert testimony may be resorted to.

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The witnesses need not have seen the execution of the holographic will,but they must be familiar with the decedents handwriting. Obviously,when the will itself is not submitted, these means of opposition, and ofassessing the evidence are not available. And then the only guaranty ofauthenticity the testators handwriting has disappeared.

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate)of a lost or destroyed will by secondary evidence the testimony ofwitnesses, in lieu of the original document. Yet such Rules could not havecontemplated holographic wills which could not then be validly madehere. Could Rule 77 be extended, by analogy, to holographic wills? (NO)

Spanish commentators agree that one of the greatest objections to theholographic will is that it may be lost or stolen an implied admissionthat such loss or theft renders it useless.

As it is universally admitted that the holographic will is usually done bythe testator and by himself alone, to prevent others from knowing eitherits execution or its contents, the above article 692 could not have the ideaof simply permitting such relatives to state whether they know of the will,but whether in the face of the document itself they think the testatorwrote it. Obviously, this they cant do unless the will itself is presented tothe Court and to them.

This holding aligns with the ideas on holographic wills in the Fuero Juzgo,admittedly the basis of the Spanish Civil Code provisions on the matter.

(According to the Fuero, the will itself must be compared with specimensof the testators handwriting.)

All of which can only mean: the courts will not distribute the property ofthe deceased in accordance with his holographic will, unless they areshown his handwriting and signature.

Taking all the above circumstances together, we reach the conclusion thatthe execution and the contents of a lost or destroyed holographic will maynot be proved by the bare testimony of witnesses who have seen and/orread such will.

At this point, before proceeding further, it might be convenient to explainwhy, unlike holographic wills, ordinary wills may be proved by testimonialevidence when lost or destroyed. The difference lies in the nature of thewills. In the first, the only guarantee of authenticity is the handwritingitself; in the second, the testimony of the subscribing or instrumentalwitnesses (and of the notary, now). The loss of the holographic will entailsthe loss of the only medium of proof; if the ordinary will is lost, thesubscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses

(four with the notary) deliberately to lie. And then their lies could bechecked and exposed, their whereabouts and acts on the particular day,

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the likelihood that they would be called by the testator, their intimacywith the testator, etc. And if they were intimates or trusted friends of thetestator they are not likely to end themselves to any fraudulent scheme todistort his wishes. Last but not least, they can not receive anything onaccount of the will.

Whereas in the case of holographic wills, if oral testimony were admissibleonly one man could engineer the fraud this way: after making a clever orpassable imitation of the handwriting and signature of the deceased, hemay contrive to let three honest and credible witnesses see and read theforgery; and the latter, having no interest, could easily fall for it, and incourt they would in all good faith affirm its genuineness and authenticity.The will having been lost the forger may have purposely destroyed it inan accident the oppositors have no way to expose the trick and theerror, because the document itself is not at hand. And considering that theholographic will may consist of two or three pages, and only one of themneed be signed, the substitution of the unsigned pages, which may be themost important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one moreobjectionable feature feasibility of forgery would be added to theseveral objections to this kind of wills listed by Castan, Sanchez Romanand Valverde and other well-known Spanish Commentators and teachersof Civil Law.

One more fundamental difference: in the case of a lost will, the three

subscribing witnesses would be testifying to a fact which they saw,namely the act of the testator of subscribing the will; whereas in the caseof a lost holographic will, the witnesses would testify as to their opinion ofthe handwriting which they allegedly saw, an opinion which can not betested in court, nor directly contradicted by the oppositors, because thehandwriting itself is not at hand.

In fine, even if oral testimony were admissible to establish and probate alost holographic will, we think the evidence submitted by herein petitioneris so tainted with improbabilities and inconsistencies that it fails tomeasure up to that clear and distinct proof required by Rule 77, sec. 6.

2. No. Even if oral testimony were admissible to establish and probate alost holographic will, we think the evidence submitted by herein petitioneris so tainted with improbabilities and inconsistencies that it fails tomeasure up to that clear and distinct proof required by Rule 77, sec. 6.

Rodelas v. AranzaG.R. No. L-58509 December 7, 1982Relova, J. (Ponente)

Facts:

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1. The appellant filed a petition for the probate of the holographic will ofRicardo Bonilla in 1977. The petition was opposed by the appellees on theground that the deceased did not leave any will, holographic or otherwise.

2. The lower court dismissed the petition for probate and held that since

the original will was lost, a photostatic copy cannot stand in the place ofthe original.

Issue: Whether or not a holographic will can be proved by means of aphotocopy

RULING: Yes. A photocopy of the lost or destroyed holographic will may beadmitted because the authenticity of the handwriting of the deceased canbe determined by the probate court with the standard writings of thetestator.

Codoy v. Calugay 312 SCRA 333

FACTS:

On 6 April 1990, Evangeline Calugay, Josephine Salcedo and EufemiaPatigas, devisees and legatees of the holographic will of the deceasedMatilde Seo Vda. de Ramonal, filed a petition for probate of the said will.They attested to the genuineness and due execution of the will on 30August 1978.

Eugenio Ramonal Codoy and Manuel Ramonal filed their oppositionclaiming that the will was a forgery and that the same is even illegible.They raised doubts as regards the repeated appearing on the will afterevery disposition, calling the same out of the ordinary. If the will was inthe handwriting of the deceased, it was improperly procured.

Evangeline Calugay, etc. presented 6 witnesses and various documentaryevidence.The first witness was the clerk of court of the probate court who producedand identified the records of the case bearing the signature of the

deceased.The second witness was election registrar who was made to produce andidentify the voters affidavit, but failed to as the same was alreadydestroyed and no longer available.

The third, the deceaseds niece, claimed that she had acquired familiaritywith the deceaseds signature and handwriting as she used to accompanyher in collecting rentals from her various tenants of commercial buildingsand the deceased always issued receipts. The niece also testified that thedeceased left a holographic will entirely written, dated and signed by said

deceased.

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The fourth witness was a former lawyer for the deceased in the intestateproceedings of her late husband, who said that the signature on the willwas similar to that of the deceased but that he can not be sure.

The fifth was an employee of the DENR who testified that she was familiar

with the signature of the deceased which appeared in the lattersapplication for pasture permit. The fifth, respondent Evangeline Calugay,claimed that she had lived with the deceased since birth where she hadbecome familiar with her signature and that the one appearing on the willwas genuine.

Codoy and Ramonals demurrer to evidence was granted by the lowercourt. It was reversed on appeal with the Court of Appeals which grantedthe probate.

ISSUE:

1. W/N Article 811 of the Civil Code, providing that at least threewitnesses explicitly declare the signature in a contested will as thegenuine signature of the testator, is mandatory or directory.

2. Whether or not the witnesses sufficiently establish the authenticity anddue execution of the deceaseds holographic will.

HELD:

1. YES. The word shall connotes a mandatory order, an imperativeobligation and is inconsistent with the idea of discretion and that thepresumption is that the word shall, when used in a statute, ismandatory.

In the case at bar, the goal to be achieved by the law, is to give effect tothe wishes of the deceased and the evil to be prevented is the possibilitythat unscrupulous individuals who for their benefit will employ means todefeat the wishes of the testator.

The paramount consideration in the present petition is to determine the

true intent of the deceased.

2. NO. We cannot be certain that the holographic will was in thehandwriting of the deceased.

The clerk of court was not presented to declare explicitly that thesignature appearing in the holographic will was that of the deceased.

The election registrar was not able to produce the voters affidavit forverification as it was no longer available.

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The deceaseds niece saw pre-prepared receipts and letters of thedeceased and did not declare that she saw the deceased sign a documentor write a note.

The will was not found in the personal belongings of the deceased but was

in the possession of the said niece, who kept the fact about the will fromthe children of the deceased, putting in issue her motive.

Evangeline Calugay never declared that she saw the decreased write anote or sign a document.

The former lawyer of the deceased expressed doubts as to theauthenticity of the signature in the holographic will.

(As it appears in the foregoing, the three-witness requirement was notcomplied with.)

A visual examination of the holographic will convinces that the strokes aredifferent when compared with other documents written by the testator.

The records are remanded to allow the oppositors to adduce evidence insupport of their opposition.

The object of solemnities surrounding the execution of wills is to close thedoor against bad faith and fraud, to avoid substitution of wills andtestaments and to guaranty their truth and authenticity. Therefore, the

laws on this subject should be interpreted in such a way as to attain theseprimordial ends. But, on the other hand, also one must not lose sight ofthe fact that it is not the object of the law to restrain and curtail theexercise the right to make a will.

However, we cannot eliminate the possibility of a false document beingadjudged as the will of the testator, which is why if the holographic will iscontested, the law requires three witnesses to declare that the will was inthe handwriting of the deceased.

Article 811, paragraph 1. provides: In the probate of a holographic will, it

shall be necessary that at least one witness who knows the handwritingand signature of the testator explicitly declare that the will and thesignature are in the handwriting of the testator. If the will is contested, atleast three of such witnesses shall be required.

The word shall connotes a mandatory order, an imperative obligationand is inconsistent with the idea of discretion and that the presumption isthat the word shall, when used in a statute, is mandatory.

Kalaw v. Relova

G.R. No. L-40207 September 28, 1984Melencio-Herrera, J. (Ponente)

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Facts:

1. Gregorio Kalaw, the private respondent, claiming to be the sole heir ofsister Natividad, filed a peition for probate of the latter's holographic will

in 1968. The will contained 2 alterations: a) Rosa's name, designated asthe sole heir was crossed out and instead "Rosario" was written above it.Such was not initialed, b) Rosa's name was crossed out as sole executrixand Gregorio's ma,e was written above it. This alteration was initialed bythe testator.

2. Rosa contended that the will as first written should be given effect sothat she would be the sole heir. The lower court denied the probate due tothe unauthenticated alterations and additions.

Issue: Whether or not the will is valid

RULING: No, the will is voided or revoked since nothing remains in the willwhich could remain valid as there was only one disposition in it. Such wasaltered by the substitution of the original heir with another. To rule thatthe first will should be given effect is to disregard the testatrix' change ofmind. However, this change of mind cannot be given effect either as shefailed to authenticate it in accordance with Art. 814, or by affixing her fullsignature.

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Documents

DIGEST SUccession.doc