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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 Felicidads 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 oppositors 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 decedents 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
decedents 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 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 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 cant do unless the will itself is
presented to the 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 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.
Feb 9, 2013
Rodelas v. Aranza Digest
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.
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, Francisoco Azaola, 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 testatrixs 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 testatrixs 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
wills 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
testators 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 wills 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.
Codoy v. Calugay
312 SCRA 333
FACTS:
On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of
the holographic will of the deceased Matilde 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 30 August 1978.
Eugenio Ramonal Codoy 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 voters affidavit, but
failed to as the same was already destroyed and no longer available.
The third, the deceaseds niece, claimed that she had acquired familiarity with the deceaseds 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 latters 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 Ramonals 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 deceaseds
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 voters affidavit for verification as it was no longer
available.
The deceaseds 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.
Gallanosa v. Arcangel Digest
Gallanosa v. Arcangel
Facts:

1. Florentino Gallanosa executed a will in 1938 when he was 80 years old. He owned 61 parcels of and at
that time. He died in 1939 childless and survived by his brother Leon. In his will, he bequethed his 1/2
share of the conjugal estate to his second wife Tecla and if she predecease him (as what occurred), the
said share shall be assigned to the spouses Gallanosa (Pedro & Corazon). Pedro is Tecla's son by her 1st
marriage. He also gave 3 parcels of land to Adolfo, his protege.
2. The said will was admitted to probate with Gallanosa as executor. In 1952, thjhe legal heirs filed an
action for the recovery of said 61 parcels of land. The action was dismissed on the ground of res judicata.
Then, 28 years after probate, another acton agaisnt Gallanosa for annulment of the will, recovery of the
lands alleging fraud and deceit, was filed. As a result, the lower court set aide the 1939 decree of probate.
Issue: Whether or not a will which has been probated may still be annulled
RULING: No. A final decree of probate is conclusive as to the due execution of the will. Due execution
means that the testator was of sound and disposing mind at the time of the execution and that he was not
acting under duress, menace, fraud or undue influence. Finally, that it was executed in accordance with
the formalities provided by law.
The period for seeking relief under Rule 38 has already expired, hence the judgment may only be set
aside on the grounds of, 1) lack of jurisdiction or lack of due process of law, and 2) the judgment was
obtained by means of extrinsic collateral fraud (which must be filed within 4 years from the discovery).
Finally, Art. 1410 cannot apply to wills and testament.
Roberts v. Leonidas
129 SCRA 754
FACTS:
Grimm, an American resident of Manila, died in 1977. He was survived by his second wife (Maxine),
their two children (Pete and Linda), and by his two children by a first marriage (Juanita and Ethel) which
ended by divorce.
Grimm executed two wills in San Francisco, California on January 23, 1959. One will disposed of his
Philippine estate described as conjugal property of himself and his second wife. The second will disposed
of his estate outside the Philippines. The two wills and a codicil were presented for probate in Utah by
Maxine on March 1978. Maxine admitted that she received notice of the intestate petition filed in Manila
by Ethel in January 1978. The Utah Court admitted the two wills and codicil to probate on April 1978 and
was issued upon consideration of the stipulation between the attorneys for Maxine and Ethel.
Also in April 1978, Maxine and Ethel, with knowledge of the intestate proceeding in Manila, entered into
a compromise agreement in Utah regarding the estate.
As mentioned, in January 1978, an intestate proceeding was instituted by Ethel. On March 1978, Maxine
filed an opposition and motion to dismiss the intestate proceeding on the ground of pendency of the Utah
probate proceedings. She submitted to the court a copy of Grimms will. However, pursuant to the
compromise agreement, Maxine withdrew the opposition and the motion to dismiss. The court ignored the
will found in the record.The estate was partitioned.

In 1980, Maxine filed a petition praying for the probate of the two wills (already probated in Utah), that
the partition approved by the intestate court be set aside and the letters of administration revoked, that
Maxine be appointed executrix and Ethel be ordered to account for the properties received by them and
return the same to Maxine. Maxine alleged that they were defrauded due to the machinations of Ethel,
that the compromise agreement was illegal and the intestate proceeding was void because Grimm died
testate so partition was contrary to the decedents wills.
Ethel filed a motion to dismiss the petition which was denied by Judge Leonidas for lack of merit.
ISSUE:
Whether the judge committed grave abuse of discretion amounting to lack of jurisdiction in denying
Ethels motion to dismiss.
HELD:
We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of
jurisdiction, in denying Ethels motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and no will shall pass
either real or personal property unless it is proved and allowed (Art. 838, Civil Code; sec. 1, Rule 75,
Rules of Court).
The probate of the will is mandatory. It is anomalous that the estate of a person who died testate should be
settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate
proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.
Nepomuceno v. CA Digests
Nepomuceno v. Court of Appeals
Facts:
1. Martin Hugo died on 1974 and he left a will wherein he instituted Sofia Nepomuceno as the sole and
only executor. It was also provided therein that he was married to Rufina Gomez with whom he had 3
children.
2. Petitioner (Sofia) filed for the probate of the will but the legal wife and her children opposed alleging
that the will was procured through improper and undue influence and that there was an admission of
concubinage with the petitioner.
3. The lower court denied the probate on the ground of the testator's admission of cohabitation, hence
making the will invalid on its face. The Court of Appeals reversed and held that the will is valid except
the devise in favor of the petitioner which is null and void in violation of Art. 739 and 1028.
Issue: Whether or not the court can pass on the intrinsic validity of a will
RULING: Yes, as an exception. But the general rule is that the court's area of inquiry is limited to the an
examination and resolution of the extrinsic validity of the will. This general rule is however not inflexible

and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation
constrains it to do and may pass upon certain provisions of the will. The will itself admitted on its face the
relationship between the testator and the petitioner.
The will was validly executed in accordance with law but the court didn't find it to serve a practical
purpose to remand the nullified provision in a separate action for that purpose only since in the probate of
a will, the court does not ordinarily look into the intrinsic validity of its provisions.
The devisee is invalid by virtue of Art. 739 which voids a donation made between persons guilty of
adultery/concubinage at the time of the donations. Under Art, 1028 it is also prohibited.
Buhay De Roma v. CA (July 23, 1987)
Facts: Candeleria De Roma adopted two daughters, Buhay and Rosalinda. She died intestate. When
administration proceedings was ongoing, Buhay was appointed administratrix and filed an inventory of
the estate. Opposed by Rosalinda on the ground that certain properties donated by their mother to Buhay
and fruits thereof had not been included. The Parcels of Land totaled P10,297.50 and the value is not
disputed. The TC issued an order in favor of Buhay because when Candelaria donated the properties to
Buhay she said in the Deed of Donation sa pamamagitan ng pagbibigay na din a mababawing muli
which the TC interpreted as a prohibition to collate and besides the legitimes of the two daughters were
not impaired. On appeal, it was reversed as it merely described the donation as irrevocable not an express
prohibition to collate.
Issue: Whether or not these lands are subject to collation.
Held: The pertinent Civil Code provisions are:
Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of
the estate any property or right which he may have received from the decedent, during the lifetime of the
latter, by way of donation, or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition. (1035a)
Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as
inofficious. (1036)
The SC affirmed the appellate courts decision and that it merely described the donation as irrevocable.
The Fact that a donation is irrevocable does not necessarily exempt the donated properties from collation
as required under the provisions of the NCC. Given the precise language of the deed of donation the
decedent donor would have included an express prohibition to collate if that had been the donors
intention. Absent such indication of that intention, the rule not the exemption should be applied