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

Facts: A 2-page Will and Testament by the testatrix AnacletaAbellana was sought 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 TestadoraAnacletaAbellana' (for the

tetattrixAnacletaAbellana). (The CFI admitted the probate of the will. Hence, this appeal,

the petitioner contending that the signature of Juan A. Abello on top of the phrase ‘por la

tetadoraAnacletaAbellana did not comply with the requirements of the law prescribing

the manner in which it ill be executed.)

ISSUE: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por

la TestadoraAnacletaAbellana . . ., Ciudad de Zamboanga," 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 as follows:

"Every will, other than a holographic will, must be subscribed at the end thereof by the

testator himself or by the testator's name written by some other person in his presence,

and by his express direction, and attested and subscribed by three or more credible

witnesses in the presence of the testator and of one another." (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 testatrix was signed at her express direction;

it is unimportant whether the person who writes the name of the testatrix signs his own

or not. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479,

Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).

In the case at bar the name of the testatrix, AnacletaAbellana, does not appear written

under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a

failure to comply with the express requirement in the law that the testator must himself

sign the will, or that his name be affixed thereto by Some other person in his presence

and by his express direction.

It appearing that the above provision of the law has not been complied with, we are

constrained to declare that the said will of the deceased AnacletaAbellana may not be

admitted to probate.

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

FACTS – Petitioner ApolonioTaboada filed a petition for probate of the will of the late

Doroteaperez. The will consisted of two pages, the first page containing all the

testamentary dispositions of the testator and was signed at the end or bottom of the

page by the testatrix alone and at the left hand margin by the three instrumental

witnesses. The second page consisted of the attestation clause and the

acknowledgment was signed at the end of the attestation clause by the three witnesses

and at the left hand margin by the testatrix. The trial court disallowed the will for want of

formality in its execution because the will was signed at the bottom of the page solely by

the testatrix, while the three witnesses only signed at the left hand margin of the page.

The judge opined that compliance with the formalities of the law required that the

witnesses also sign at the end of the will because the witnesses attest not only the will

itself but the signature of the testatrix. Hence, this petition.

ISSUE – Was the object of attestation and subscription fully when the instrumental

witnesses signed at the left margin of the sole page which contains all the testamentary

dispositions?

HELD –

(SHORT RULING)

On certiorari, the Supreme Court held a) that the objects of attestation and subscription

were fully met and satisfied in the present case when the instrumental witnesses signed

at the left margin of the sole page which contains all the testamentary dispositions,

especially so when the will was properly identified by a subscribing witness to be the

same will executed by the testatrix; and b) that the failure of the attestation clause to

state the number of pages used in writing the will would have been a fatal defect were it

not for the fact that it is really and actually composed of only two pages duly signed by

the testatrix and her instrumental witnesses.

(LONG RULING [VERBATIM])

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed

at its end by the testator himself or by the testator's name written by another person in

his presence, and by his express direction, and attested and subscribed by three or

more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed. Attestation

consists in witnessing the testator's execution of the will in order to see and take note

mentally that those things are done which the statute requires for the execution of a will

and that the signature of the testator exists as a fact. On the other hand, subscription is

the signing of the witnesses' names upon the same paper for the purpose of

identification of such paper as the will which was executed by the testator. (Ragsdale v.

Hill, 269 SW 2d 911).

The signatures of the instrumental witnesses on the left margin of the first page of the

will attested not only to the genuineness of the signature of the testatrix but also the due

execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from

the usual forms should be ignored, especially where the authenticity of the will is not

assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective

permeating the provisions on the law on wills in this project consists in the liberalization

of the manner of their execution with the end in view of giving the testator more freedom

in expressing his last wishes but with sufficient safeguards and restrictions to prevent

the commission of fraud and the exercise of undue and improper pressure and influence

upon the testator. This objective is in accord with the modern tendency in respect to the

formalities in the execution of a will" (Report of the Code Commission, p. 103).

The objects of attestation and of subscription were fully met and satisfied in the present

case when the instrumental witnesses signed at the left margin of the sole page which

contains all the testamentary dispositions, especially so when the will was properly

identified by subscribing witness Vicente Timkang to be the same will executed by the

testatrix. There was no question of fraud or substitution behind the questioned order.

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

FACTS – VictorioPayad filed a petition for the probate of the will of the decedent

LeonciaTolentino. This was opposed by AquilinaTolentino, averring that said Will was

made only after the death of the testatrix. The lower court denied the probate of the will

on the ground that the attestation clause was not in conformity with the requirements of

the law since it was not stated therein that the testatrix caused Atty. Almario to write her

name at her express direction. Hence, this petition.

ISSUE – Was it necessary that the attestation clause state that the testatrix caused Atty.

Almario to write her name at her express direction?

HELD - The evidence of record establishes the fact the LeonciaTolentino, assisted by

Attorney Almario, placed her thumb mark on each and every page of the questioned will

and that said attorney merely wrote her name to indicate the place where she placed

said thumb mark. In other words Attorney Almario did not sign for the testatrix. She

signed by placing her thumb mark on each and every page thereof. "A statute requiring

a will to be 'signed' is satisfied if the signature is made by the testator's mark." (Quoted

by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104,

108.) It is clear, therefore, that it was not necessary that the attestation clause in

question should state that the testatrix requested Attorney Almario to sign her name

inasmuch as the testatrix signed the will in question in accordance with law.

Matias vs. Salud

G.R. L-10907 June 29, 1957

Ponente: Concepcion, J.

Facts:

1. This case is an appeal from a CFI Cavite order denying the probate of the will of

Gabina Raquel. The document consist of 3 pages and it seems that after the attestation

clause, there appears the siganture of the testatrix 'Gabina Raquel', alongside is a

smudged in violet ink claimed by the proponents as the thumbmark allegedly affixed by

the tetratrix. On the third page at the end of the attestation clause appears signatures

on the left margin of each page, and also on the upper part of each left margin appears

the same violet ink smudge accompanied by the written words 'Gabina Raquel' with 'by

Lourdes Samonte' underneath it.

2. The proponent's evidence is to the effect that the decedent allegedly instructed Atty.

Agbunag to drat her will and brought to her on January 1950. With all the witnesses with

her and the lawyer, the decedent affixed her thumbmark at the foot of the document and

the left margin of each page. It was also alleged that she attempted to sign using a sign

pen but was only able to do so on the lower half of page 2 due to the pain in her right

shoulder. The lawyer, seeing Gabina unable to proceed instructed Lourdes Samonte to

write 'Gabina Raquel by Lourdes Samonte' next to each thumbmark, after which the

witnesses signed at the foot of the attestation clause and the left hand margin of each

page.

3. The probate was opposed by BasiliaSalud, the niece of the decedent.

4. The CFI of cavite denied the probate on the ground that the attestation clause did not

state that the testatrix and the witnesses signed each and every page nor did it express

that Lourdes was specially directed to sign after the testatrix.

Issue: Whether or not the thumbprint was sufficient compliance with the law despite the

absence of a description of such in the attestation clause

HELD: YES

The absence of the description on the attestation clause that another person wrote the

testatrix' name at her request is not a fatal defect, The legal requirement only ask that it

be signed by the testator, a requirement satisfied by a thumbprint or other mark affixed

by him.

As to the issue on the clarity of the ridge impression, it is held to be dependent on the

aleatory circumstances. Where a testator employs an unfamiliar way of signing and that

both the attestation clause and the will are silent on the matter, such silence is a factor

to be considered against the authenticity of the testament. However, the failure to

describe the signature itself alone is not sufficient to refuse probate when evidence fully

satisfied that the will was executed and witnessed in accordance with law.

Garcia v. Lacuesta

G.R. L-4067 November 29, 1951

Ponente: Paras, C.J.

Facts:

1. The CA disallowed the probate of the will of Antero Mercado dated Jan 1943. The

said will was written in Ilocano dialect.

2. The will appears to have been signed by Atty. Florentino Javier who wrote the name

of the testator followed below by 'A ruego del testador' and the name of Florentino

Javier. In effect, it was signed by another although under the express direction of the

testator. This fact however was not recited in the attestation clause. Mercado also

affixed a cross on the will.

3. The lower court admitted the will to probate but this order was reversed by the Court

of Appeals on the ground that the attestation failed to recite the 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 that Antero or the

testator caused Atty. Javier to write the former's name under 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 that it 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 a

thumbmark 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 SeverinoAgapan, 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.

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 the witnesses. This is the only

requirement under Sec. 618 of the Civil Code of procedure at that time.

Nera v. Rimando

G.R. L-5971 February 27, 1911

Ponente: Carson, J.:

'Test of Presence'

Facts:

1. At the time the will was executed, in a large room connecting with a smaller room by

a doorway where a curtain hangs across, one of the witnesses was in the outside room

when the other witnesses were attaching their signatures to the instrument.

2. The trial court did not consider the determination of the issue as to the position of the

witness as of vital importance in determining the case. It agreed with the ruling in the

case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing

witnesses was in the outer room while the signing occurred in the inner room, would

not be sufficient to invalidate the execution of the will.

3. The CA deemed the will valid.

Issue: Whether or not the subscribing witness was able to see the testator and other

witnesses in the act of affixing their signatures.

HELD: YES

The Court is unanimous in its opinion that had the witnesses been proven to be in the

outer room when the testator and other witnesses signed the will in the inner room, it

would have invalidated the will since the attaching of the signatures under the

circumstances was not done 'in the presence' of the witnesses in the outer room. The

line of vision of the witness to the testator and other witnesses was blocked by the

curtain separating the rooms.

The position of the parties must be such that with relation to each other at the moment

of the attaching the signatures, they may see each other sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or not they actualy saw

each other sign but whether they might have seen each other sign if they chose to doso

considering their physical, mental condition and position in relation to each other at the

moment of the inscription of the signature.

Icasiano vs. Icasiano

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

Facts:

1. CelsoIcasiano, filed a petition for the probate of the will of JosefaVillacorte and for his

appointment as executor thereof. It appears from the evidence that the testatrix died on

September 12, 1958. She executed a will in Tagalog, and through the help of her

lawyer, it was prepared in duplicates, an original and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only brought the original

copy of the will while the carbon duplicate (unsigned) was left in Bulacan. One of the

witnesses failed to sign one of the pages in the original copy but admitted he may have

lifted 2 pages simultaneously instead when he signed the will. Nevertheless, he affirmed

that the will was signed by the testator and other witnesses in his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his

signature to a page is sufficient to deny probate of the will

RULING: No, the failure to sign was entirely through pure oversight or mere

inadvertence. Since the duplicated bore the required signatures, this proves that the

omission was not intentional. Even if the original is in existence, a duplicate may still be

admitted to probate since the original is deemed to be defective, then in law, there is no

other will bu the duly signed carbon duplicate and the same can be probated.

The law should not be strictly and literally interpreted as to penalize the testatrix on

account of the inadvertence of a single witness over whose conduct she has no control

of. Where the purpose of the law is to guarantee the identity of the testament and its

component pages, and there is no intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules that the will

should be signed by the witnesses on every page. The carbon copy duplicate was

regular in all respects.

Javellana vs. Ledesma

G.R. No. L-7179

Facts:

1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased

ApolinariaLedesma in July 1953. This testament was deemed executed on May 1950

and May 1952. The contestant was the sister and nearest surviving relative of the

deceased. She appealed from this decision alleging that the will were not executed in

accordance with law.

2. The testament was executed at the house of the testatrix. One the other hand, the

codicil was executed after the enactment of the New Civil Code (NCC), and therefore

had to be acknowledged before a notary public. Now, the contestant, who happens to

be one of the instrumental witnesses asserted that after the codicil was signed and

attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on the

same occasion. Gimotea, however, said that he did not do so, and that the act of

signing and sealing was done afterwards.

2. One of the allegations was that the certificate of acknowledgement to the codicil was

signed somewhere else or in the office of the notary. The ix and the witnesses at the

hospital, was signed and sealed by the notary only when he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the absence of the

testator and witnesses affects the validity of the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the

signing of the testator, the witnesses and the notary be accomplished in one single act.

All that is required is that every will must be acknowledged before a notary public by the

testator and witnesses. The subsequent signing and sealing is not part of the

acknowledgement itself nor of the testamentary act. Their separate execution out of the

presence of the testator and the witnesses cannot be a violation of the rule that

testaments should be completed without interruption.

Cruz v. Villasor

G.R. L-32213 November 26, 1973

Ponente: Esguerra, J.:

Facts:

1. The CFI of Cebu allowed the probate of the last will and testament of the late Valenti

Cruz. However, the petitioner opposed the allowance of the will alleging that it was

executed through fraud, deceit, misrepresentation, and undue influence. He further

alleged that the instrument was executed without the testator having been informed of

its contents and finally, that it was not executed in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was

acknowledged. Despite the objection, the lower court admitted the will to probate on the

ground that there is substantial compliance with the legal requirements of having at

least 3 witnesses even if the notary public was one of them.

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

HELD: NO.

The will is not valid. The notary public cannot be considered as the third instrumental

witness since he cannot acknowledge before himself his having signed the said will. An

acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and

'before' means in front of or preceding in space or ahead of. The notary cannot split his

personality into two so that one will appear before the other to acknowledge his

participation int he making of the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral

arrangements, a function defeated if he were to be one of the attesting or instrumental

witnesses. He would be interested in sustaining the validity of the will as it directly

involves himself and the validity of his own act. he would be in an inconsistent position,

thwarting the very purpose of the acknowledgment, which is to minimize fraud.

Garcia v. Vasquez

G.R. No. L-26808 March 28, 1969

Fernando, J (Ponente)

Facts:

1. Gliceriadel Rosario executed 2 wills, one in June 1956, written in Spanish, a

language she knew an spoke. The other will was executed in December 1960

consisting of only one page, and written in Tagalog. The witnesses to the 1960 will

declared that the will was first read 'silently' by the testatrix before signing it. The

probate court admitted the will.

2. The oppositors alleged that the as of December 1960, the eyesight of the deceased

was so poor and defective that she could not have read the provisions 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 New Civil Code

(NCC) should apply.If the testator is blind or incapable of reading, he must be apprised

of the contents of the will for him to be able to have the opportunityto object if the

provisions therein are not in accordance with his wishes.

The testimony of her opthalmologist established that notwithstanding an operation to

remove her cataract and being fitted with the lenses, this did not improve her vision. Her

vision remained mainly for viewing distant objects and not for reading. There was no

evidence that her vision improved at the time of the execution of the 2nd will. Hence,

she was incapable of reading her own will. The admission of the will to probate is

therefor erroneous.

Alvarado v. Gaviola

226 SCRA 347

FACTS:

On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will entitled

“HulingHabilin” wherein he disinherited an illegitimate son, petitioner Cesar Alvarado,

and expressly revoked a previously executed holographic will at the time awaiting

probate before the RTC of Laguna.

According to Bayani Ma.Rino, private respondent, he was present when the said

notarial will was executed, together with three instrumental witnesses and the notary

public, where the testator did not read the will himself, suffering as he did from

glaucoma.

Rino, a lawyer, drafted the eight-page document and read the same aloud before the

testator, the three instrumental witnesses and the notary public, the latter four following

the reading with their own respective copies previously furnished them.

Thereafter, a codicil entitled

“KasulatanngPagbabagongIlangPagpapasiyanaNasasaadsaHulingHabilinna May

PetsaNobiembre 5, 1977 niBrigido Alvarado” was executed changing some dispositions

in the notarial will to generate cash for the testator’s eye operation.

Said codicil was likewise not read by Brigido Alvarado and was read in the same

manner as with the previously executed will.

When the notarial will was submitted to the court for probate, Cesar Alvarado filed his

opposition as he said that the will was not executed and attested as required by law;

that the testator was insane or mentally incapacitated due to senility and old age; that

the will was executed under duress, or influence of fear or threats; that it was procured

by undue pressure and influence on the part of the beneficiary; and that the signature of

the testator was procured by fraud or trick.

ISSUE:

W/N notarial will of Brigido Alvarado should be admitted to probate despite allegations

of defects in the execution and attestation thereof as testator was allegedly blind at the

time of execution and the double-reading requirement under Art. 808 of the NCC was

not complied with.

HELD:

YES. The spirit behind the law was served though the letter was not. Although there

should be strict compliance with the substantial requirements of law in order to insure

the authenticity of the will, the formal imperfections should be brushed aside when they

do not affect its purpose and which, when taken into account, may only defeat the

testator’s will.

Cesar Alvardo was correct in asserting that his father was not totally blind (of counting

fingers at 3 feet) when the will and codicil were executed, but he can be so considered

for purposes of Art. 808.

That Art. 808 was not followed strictly is beyond cavil.

However, in the case at bar, there was substantial compliance where the purpose of the

law has been satisfied: that of making the provisions known to the testator who is blind

or incapable of reading the will himself (as when he is illiterate) and enabling him to

object if they do not accord with his wishes.

Rino read the testator’s will and codicil aloud in the presence of the testator, his three

instrumental witnesses, and the notary public.

Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents

read corresponded with his instructions.

Only then did the signing and acknowledgment take place.

There is no evidence that the contents of the will and the codicil were not sufficiently

made known and communicated to the testator.

With four persons, mostly known to the testator, following the reading word for word with

their own copies, it can be safely concluded that the testator was reasonably assured

that what was read to him were the terms actually appearing on the typewritten

documents.

The rationale behind the requirement of reading the will to the testator if he is blind or

incapable of reading the will to himself (as when he is illiterate), is to make the

provisions thereof known to him, so that he may be able to object if they are not in

accordance with his wishes.

Although there should be strict compliance with the substantial requirements of law in

order to insure the authenticity of the will, the formal imperfections should be brushed

aside when they do not affect its purpose and which, when taken into account, may only

defeat the testator’s will.

CANEDA vs. CA

41 SCAD 968, May 28, 1993

FACTS:

The oppositors of the probate of the will asserted that the will in question is null and void

for the reason that its attestation clause is fatally defective since it fails to specifically

state that the witnesses subscribed their respective signatures to the will in the

presence of the testator and of each other.

ISSUE:

Whether or not the attestation clause contained in the last will and testament 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 to the will in the

presence of the testator and of one another. Attestation is the act of senses, while

subscription is the act of the hand. The former is mental, the latter mechanical, and to

attest a will is to know that it was published as such, and to certify the facts required to

constitute an actual and legal publication; but subscription, on the other hand, is only to

write on the same paper the names of the witnesses, for the sole purpose of

identification.

What is fairly apparent upon 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.

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 presence of the testator and of

one another.

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.

Roxas v. De Jesus

134 SCRA 245

FACTS:

BibianeRoxas died. Her brother, Simeon Roxas, filed a spec. pro. for partition of the

estate of the deceased and also delivered the holographic will of the deceased. Simeon

stated that he found a notebook belonging to deceased, which contained a “letter-will”

entirely written and signed in deceased’s handwriting. The will is dated “FEB./61 ” and

states: “This is my will which I want to be respected although it is not written by a

lawyer. Roxas relatives corroborated the fact that the same is a holographic will of

deceased, identifying her handwriting and signature. Respondent opposed probate on

the ground that it such does not comply with Article 810 of the CC because the date

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

ISSUE:

W/N the date “FEB./61 ” appearing on the holographic Will of the deceased

BibianaRoxas de Jesus is a valid compliance with the Article 810 of the Civil Code.

HELD:

Valid date.

This will not be the first time that this Court departs from a strict and literal application of

the statutory requirements regarding the due execution of Wills. The underlying and

fundamental objectives permeating the provisions of the law wills consists in the

liberalization of the manner of their execution with the end in view of giving the testator

more freedom in expressing his last wishes, but with sufficient safeguards and

restrictions to prevent the commission of fraud and the exercise of undue and improper

pressure and influence upon the testator. If a Will has been executed in substantial

compliance with the formalities of the law, and the possibility of bad faith and fraud in

the exercise thereof is obviated, said Will should be admitted to probate (Rey v.

Cartagena 56 Phil. 282).

If the testator, in executing his Will, attempts to comply with all the requisites, although

compliance is not literal, it is sufficient if the objective or purpose sought to be

accomplished by such requisite is actually attained by the form followed by the testator.

In Abangan v. Abanga 40 Phil. 476, we ruled that: The object of the solemnities

surrounding the execution of wills is to close the door against bad faith and fraud, to

avoid substitution of wills and testaments and to guaranty their truth and authenticity. …

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

of two competing Wills executed on the same day, or of a testator becoming insane on

the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such

contingency in this case.

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

and fraud in its execution nor was there any substitution of Wins and Testaments. There

is no question that the holographic Will of the deceased BibianaRoxas de Jesus was

entirely written, dated, and signed by the testatrix herself and in a language known to

her. There is also no question as to its genuineness and due execution. All the children

of the testatrix agree on the genuineness of the holographic Will of their mother and that

she had the testamentary capacity at the time of the execution of said Will. The

objection interposed by the oppositor-respondent Luz Henson is that the holographic

Will is fatally defective because the date “FEB./61 ” appearing on the holographic Will is

not sufficient compliance with Article 810 of the Civil Code. This objection is too

technical to be entertained.

As a general rule, the “date” in a holographic Will should include the day, month, and

year of its execution. However, when as in the case at bar, there is no appearance of

fraud, bad faith, undue influence and pressure and the authenticity of the Will is

established and the only issue is whether or not the date “FEB./61″ appearing on the

holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the

holographic Will should be allowed under the principle of substantial compliance.

Labrador v. CA

184 SCRA 170

FACTS:

Melecio died leaving behind a parcel of land to his heirs. However, during probate

proceedings, Jesus and Gaudencio filed an opposition on the ground that the will has

been extinguished by implication of law alleging that before Melecio’s death, the land

was sold to them evidenced by TCT No. 21178. Jesus eventually sold it to Navat.

Trial court admitted the will to probate and declared the TCT null and void. However, the

CA on appeal denied probate on the ground that it was undated.

ISSUE:

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

HELD:

YES. The law does not specify a particular location where the date should be placed in

the will. The only requirements are that the date be in the will itself and executed in the

hand of the testator.

The intention to show March 17 1968 as the date of the execution is plain from the tenor

of the succeeding words of the paragraph. It states that “this being in the month of

March 17th day, in the year 1968, and this decision and or instruction of mine is the

matter to be followed. And the one who made this writing is no other than Melecio

Labrador, their father.” This clearly shows that this is a unilateral act of Melecio who

plainly knew that he was executing a will.

Azaola v. Singson

109 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 Azaola was made the sole

heir as against the nephew, who is the defendant. Only one witness, FrancisocoAzaola,

was presented to testify on the handwriting of the testatrix. He testified that he had seen

it one month, more or less, before the death of the testatrix, as it was given to him and

his wife; and that it was in the testatrix’s handwriting. He presented the mortgage, the

special power of the attorney, and the general power of attorney, and the deeds of sale

including an affidavit to reinforce his statement. Two residence certificates showing the

testatrix’s signature were also exhibited for comparison purposes.

The probate was opposed on the ground that (1) the execution of the will was procured

by undue and improper pressure and influence on the part of the petitioner and his wife,

and (2) that the testatrix did not seriously intend the instrument to be her last will, and

that the same was actually written either on the 5th or 6th day of August 1957 and not

on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the

proponent must present three witnesses who could declare that the will and the

signature are in the writing of the testatrix, the probate being contested; and because

the lone witness presented “did not prove sufficiently that the body of the will was

written in the handwriting of the testatrix.”

Petitioner appealed, urging: first, that he was not bound to produce more than one

witness because the will’s authenticity was not questioned; and second, that Article 811

does not mandatorily require the production of three witnesses to identify the

handwriting and signature of a holographic will, 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 to produce more than one witness; but

even if the genuineness of the holographic will were contested, Article 811 can not be

interpreted to require the compulsory presentation of three witnesses to identify the

handwriting of the testator, under penalty of having the probate denied. Since no

witness may have been present at the execution of a holographic will, none being

required by law (Art. 810, new Civil Code), it becomes obvious that the existence of

witness possessing the requisite qualifications is a matter beyond the control of the

proponent. For it is not merely a question of finding and producing any three witnesses;

they must be witnesses “who know the handwriting and signature of the testator” and

who can declare (truthfully, of course, even if the law does not so express) “that the will

and the signature are in the handwriting of the testator”. There may be no available

witness of the testator’s hand; or even if so familiarized, the witnesses may be unwilling

to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may

thus become an impossibility.

This is the reason why the 2nd paragraph of Article 811 allows the court to resort to

expert evidence. The law foresees the possibility that no qualified witness may be found

(or what amounts to the same thing, that no competent witness may be willing to testify

to the authenticity of the will), and provides for resort to expert evidence to supply the

deficiency.

What the law deems essential is that the court should be convinced of the will’s

authenticity. Where the prescribed number of witnesses is produced and the court is

convinced by their testimony that the will is genuine, it may consider it unnecessary to

call for expert evidence. On the other hand, if no competent witness is available, or

none of those produced is convincing, the Court may still, and in fact it should, resort to

handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of

inquiry, for the state is as much interested as the proponent that the true intention of the

testator be carried into effect.

Gan v. Yap

104 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 CFI with a petition

for the probate of a holographic will allegedly executed by the deceased.

The will was not presented because Felicidad’s husband, Ildefonso, supposedly took it.

What was presented were witness accounts of relatives who knew of her intention to

make a will and allegedly saw it as well. According to the witnesses, Felicidad did not

want her husband to know about it, but she had made known to her other relatives that

she made a will.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased

had not left any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Judge refused to probate

the alleged will on account of the discrepancies arising from the facts. For one thing, it is

strange that Felicidad made her will known 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 that her husband may have access to it. There was also no evidence

presented that her niece was her confidant.

In the face of these improbabilities, the trial judge had to accept the oppositor’s

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 witnesses who have

allegedly seen it and who declare that it was in the handwriting of 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 entirely written, dated, and signed

by the hand of the testator himself. It is subject to no other form and may be made in or

out of the Philippines, and need not be witnessed.”

This is a radical departure from the form and solemnities provided for wills under Act

190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the

testator and three credible witnesses in each and every page; such witnesses to attest

to the number of sheets used and to the fact that the testator signed in their presence

and that they signed in the presence of the testator and of each other. Authenticity and

due execution is the dominant requirements to be fulfilled when such will is submitted to

the courts for allowance. For that purpose the testimony of one of the subscribing

witnesses would be sufficient if there is no opposition (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 of the testament, and the circumstances its due execution.

With regard to holographic wills, no such guaranties of truth and veracity are demanded,

since as stated, they need no witnesses; provided however, that they are “entirely

written, dated, and signed by the hand of the testator himself.”

“In the probate of a holographic will” says the New Civil Code, “it shall be necessary that

at least one witness who knows the handwriting and signature of the testator explicitly

declare that the will and the signature are in the handwriting of the testator. If the will is

contested, at least three such witnesses shall be required. In the absence of any such

witnesses, (familiar with decedent’s handwriting) and if the court deem it necessary,

expert testimony may be resorted to.”

The witnesses need not have seen the execution of the holographic will, but they must

be familiar with the decedent’s handwriting. Obviously, when the will itself is not

submitted, these means of opposition, and of assessing the evidence are not available.

And then the only guaranty of authenticity — the testator’s 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 of witnesses, in lieu of the

original document. Yet such Rules could not have contemplated holographic wills which

could not then be validly made here. Could Rule 77 be extended, by analogy, to

holographic wills? (NO)

Spanish commentators agree that one of the greatest objections to the holographic will

is that it may be lost or stolen — an implied admission that such loss or theft renders it

useless.

As it is universally admitted that the holographic will is usually done by the testator and

by himself alone, to prevent others from knowing either its execution or its contents, the

above article 692 could not have the idea of simply permitting such relatives to state

whether they know of the will, but whether in the face of the document itself they think

the testator wrote it. Obviously, this they can’t do unless the will itself is presented to the

Court and to them.

This holding aligns with the ideas on holographic wills in the FueroJuzgo, admittedly the

basis of the Spanish Civil Code provisions on the matter.(According to the Fuero, the

will itself must be compared with specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in

accordance with his holographic will, unless they are shown his handwriting and

signature.

Taking all the above circumstances together, we reach the conclusion that the

execution and the contents of a lost or destroyed holographic will may not be proved by

the bare testimony of witnesses who have seen and/or read such will.

At this point, before proceeding further, it might be convenient to explain why, unlike

holographic wills, ordinary wills may be proved by testimonial evidence when lost or

destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of

authenticity is the handwriting itself; in the second, the testimony of the subscribing or

instrumental witnesses (and of the notary, now). The loss of the holographic will entails

the loss of the only medium of proof; if the ordinary will is lost, the subscribing 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 be checked and exposed, their

whereabouts and acts on the particular day, the likelihood that they would be called by

the testator, their intimacy with the testator, etc. And if they were intimates or trusted

friends of the testator they are not likely to end themselves to any fraudulent scheme to

distort his wishes. Last but not least, they can not receive anything on account of the

will.

Whereas in the case of holographic wills, if oral testimony were admissible only one

man could engineer the fraud this way: after making a clever or passable imitation of the

handwriting and signature of the deceased, he may contrive to let three honest and

credible witnesses see and read the forgery; and the latter, having no interest, could

easily fall for it, and in court they would in all good faith affirm its genuineness and

authenticity. The will having been lost — the forger may have purposely destroyed it in

an “accident” — the oppositors have no way to expose the trick and the error, because

the document itself is not at hand. And considering that the holographic will may consist

of two or three pages, and only one of them need be signed, the substitution of the

unsigned pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature

— feasibility of forgery — would be added to the several objections to this kind of wills

listed by Castan, Sanchez Roman and Valverde and other well-known Spanish

Commentators and teachers of 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 case of a lost holographic will, the witnesses would

testify as to their opinion of the handwriting which they allegedly saw, an opinion which

can not be tested in court, nor directly contradicted by the oppositors, because the

handwriting itself is not at hand.

In fine, even if oral testimony were admissible to establish and probate a lost

holographic will, we think the evidence submitted by herein petitioner is so tainted with

improbabilities and inconsistencies that it fails to measure 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 a lost

holographic will, we think the evidence submitted by herein petitioner is so tainted with

improbabilities and inconsistencies that it fails to measure up to that “clear and distinct”

proof required by Rule 77, sec. 6.

Rodelas v. Aranza

G.R. No. L-58509 December 7, 1982

Relova, J. (Ponente)

Facts:

1. The appellant filed a petition for the probate of the holographic will of Ricardo Bonilla

in 1977. The petition was opposed by the appellees on the ground 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 of the original.

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

RULING: Yes. A photocopy of the lost or destroyed holographic will may be admitted

because the authenticity of the handwriting of the deceased can be determined by the

probate court with the standard writings of the testator.

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 deceased MatildeSeñoVda.

deRamonal, filed a petition for probate of the said will. They attested to the genuineness

and due execution of the will on 30 August 1978.

Eugenio RamonalCodoy and Manuel Ramonal filed their opposition claiming that the

will was a forgery and that the same is even illegible. They raised doubts as regards the

repeated appearing on the will after every disposition, calling the same out of the

ordinary. If the will was in the handwriting of the deceased, it was improperly procured.

Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence.

The first witness was the clerk of court of the probate court who produced and identified

the records of the case bearing the signature of the deceased.

The second witness was election registrar who was made to produce and identify the

voter’s affidavit, but failed to as the same was already destroyed and no longer

available.

The third, the deceased’s niece, claimed that she had acquired familiarity with the

deceased’s signature and handwriting as she used to accompany her in collecting

rentals from her various tenants of commercial buildings and the deceased always

issued receipts. The niece also testified that the deceased left a holographic will entirely

written, dated and signed by said deceased.

The fourth witness was a former lawyer for the deceased in the intestate proceedings of

her late husband, who said that the signature on the will was 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 latter’s application for pasture permit.

The fifth, respondent Evangeline Calugay, claimed that she had lived with the deceased

since birth where she had become familiar with her signature and that the one

appearing on the will was genuine.

Codoy and Ramonal’s demurrer to evidence was granted by the lower court. It was

reversed on appeal with the Court of Appeals which granted the probate.

ISSUE:

1. W/N Article 811 of the Civil Code, providing that at least three witnesses explicitly

declare the signature in a contested will as the genuine signature of the testator, is

mandatory or directory.

2. Whether or not the witnesses sufficiently establish the authenticity and due execution

of the deceased’s holographic will.

HELD:

1. YES. The word “shall” connotes a mandatory order, an imperative obligation and is

inconsistent with the idea of discretion and that the presumption is that the word “shall”,

when used in a statute, is mandatory.

In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of

the deceased and the evil to be prevented is the possibility that unscrupulous

individuals who for their benefit will employ means to defeat 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 the handwriting of the

deceased.

The clerk of court was not presented to declare explicitly that the signature appearing in

the holographic will was that of the deceased.

The election registrar was not able to produce the voter’s affidavit for verification as it

was no longer available.

The deceased’s niece saw pre-prepared receipts and letters of the deceased and did

not declare that she saw the deceased sign a document or 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 from the children of the

deceased, putting in issue her motive.

Evangeline Calugay never declared that she saw the decreased write a note or sign a

document.

The former lawyer of the deceased expressed doubts as to the authenticity of the

signature in the holographic will.

(As it appears in the foregoing, the three-witness requirement was not complied with.)

A visual examination of the holographic will convinces that the strokes are different

when compared with other documents written by the testator.

The records are remanded to allow the oppositors to adduce evidence in support of

their opposition.

The object of solemnities surrounding the execution of wills is to close the door against

bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their

truth and authenticity. Therefore, the laws on this subject should be interpreted in such

a way as to attain these primordial ends. But, on the other hand, also one must not lose

sight of the fact that it is not the object of the law to restrain and curtail the exercise the

right to make a will.

However, we cannot eliminate the possibility of a false document being adjudged as the

will of the testator, which is why if the holographic will is contested, the law requires

three witnesses to declare that the will was in the 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 handwriting and signature of the

testator explicitly declare that the will and the signature are in the handwriting of the

testator. If the will is contested, at least three of such witnesses shall be required.”

The word “shall” connotes a mandatory order, an imperative obligation and is

inconsistent with the idea of discretion and that the presumption is that the word “shall”,

when used in a statute, is mandatory.

Kalaw v. Relova

G.R. No. L-40207 September 28, 1984

Melencio-Herrera, J. (Ponente)

Facts:

1. Gregorio Kalaw, the private respondent, claiming to be the sole heir of sister

Natividad, filed a peition for probate of the latter's holographic will in 1968. The will

contained 2 alterations: a) Rosa's name, designated as the 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 executrix and Gregorio's ma,e was written above it. This alteration

was initialed by the testator.

2. Rosa contended that the will as first written should be given effect so that she would

be the sole heir. The lower court denied the probate due to the 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 will which could

remain valid as there was only one disposition in it. Such was altered by the substitution

of the original heir with another. To rule that the first will should be given effect is to

disregard the testatrix' change of mind. However, this change of mind cannot be given

effect either as she failed to authenticate it in accordance with Art. 814, or by affixing

her full signature.