in the twilight years of his life executed a last will and testament before three attesting witnesses and

he was duly
assisted by his lawyer and a notary public. It was declared therein that, among other things that the testator was
leaving by way of legacies and devises his real and personal properties to specific persons, all of whom do not
appear to be related to Mateo. Not long after, he himself filed a petition before the CFI seeking the probate of his last
will and testament but the scheduled hearings were postponed, until the testator passed away before his petition
could finally be heard by the probate court. Benoni Cabrera, one of the legatees named in the will, sought his
appointment as special administrator of the testators estate but due to his death, he was succeeded by William
Cabrera, who was appointed by RTC which is already the probate court.
PETITIONERS: The petitioners assail to the allowance of the testators will on the ground that it was not executed in
accordance with all the requisites of law since the testator was already in a poor state of health such that he could not
have possibly executed the same. Petitioners likewise contend that the will is null and void because its attestation
clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the
testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of
the testator and of one another.
RESPONDENTS: The respondent, on the other hand, argue that Mateo was of sound and disposing mind and in
good health when he executed his will. Further, they also contend that the witnesses attested and signed the will in
the presence of the testator and of each other.
Whether or not the attestation clause in the last will of Mateo Caballero is fatally defective such that whether or not it
affects the validity of the will.
Whether or not the attestation clause complies with the substantial compliance pursuant to Article 809 of the Civil
Code.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument
has been executed before them and to the manner of the execution of the same. It is a separate memorandum or
record of the facts surrounding the conduct of execution and once signed by the witnesses; it gives affirmation to the
fact that compliance with the essential formalities required by law has been observed. Under the 3rd paragraph of
Article 805, such a clause, the complete lack of which would result in the invalidity of the will, should state:

1. The number of pages used upon which the will is written;

2. That the testator signed, or expressly cause another to sign, the will and every
page thereof in the presence of the attesting witnesses; and

3. That the attesting witnesses witnessed the signing by the testator of the will
and all its pages, and that the said witnesses also signed the will and every
page thereof in the presence of the testator and of one another.
It will be noted that 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 and subscription differ in meaning. Attestation is the act of sense, while
subscription is the act of the hand. The attestation clause herein assailed is 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 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 the statement required by law is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the
defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial compliance rule, as contemplated in
Article 809 of the Civil Code:
In the absence of bad faith, forgery, or fraud or undue and improper pressure and influence, defects and imperfection
in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will
was in fact executed and attested in substantial compliance with all the requirements of Article 805.
The defects and imperfection must only be with respect to the form of the attestation or the language employed
therein. Such defects or imperfection would not render a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. These considerations do not apply where the attestation clause
totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator
and of each other. In such a situation, the defect is not only in the form or language of the attestation clause but the
total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will.
That is precisely the defect complained of in the present case since there is no plausible way by which it can be read
into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear
witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed
the will and every page thereof in the presence of the testator and of one another.
Source: UNIVERSITY OF THE CORDILLERAS COLLEGE OF LAW, WILLS AND SUCCESSION, CASE DIGEST`
Danilo ALUAD, et al., petitioners vs. Zenaido ALUAD, respondent
G.R. No. 176943, October 17, 2008

Petitioners mother, Maria Aluad and respondent Zenaido Aluad were raised by the childless spouses Matilde and
Crispin Aluad. Crispin was the owner of six lots of Pilar Cadastre, Capiz. After his death, Matilde adjudicated the lots
to herself and thereafter, she executed a Deed of Donation of Real Property Inter Vivos in favor of Maria covering all
the six lots. The Deed provided that such will become effective upon the death of the Donor, but in the event that the
Donee should die before the Donor, the present donation shall be deemed rescinded. Provided, however, that anytime
during the lifetime of the Donor or anyone of them who should survive, they could use, encumber or even dispose of
any or even all of the parcels of the land.
Matilde sold one of the lots to Zenaido and subsequently, Matilde executed a last will and testament devising four (4)
of the lots to Maria and the remaining lot to Zenaido. Maria died a few months after Matildes death. Thereafter,
Marias heirs (herein petitioners) filed before the RTC a complaint for declaration and recovery of ownership and
possession of the two lots conveyed and donated to Zenaido, alleging that no rights have been transmitted to the
latter because such lots have been previously alienated to them to Maria via the Deed of Donation. The lower court
decided in favor of the petitioners however, CA reversed said decision upon appeal of Zenaido which held that the
Deed of Donation was actually a donation mortis causa, not inter vivos and as such it had to, but did not, comply with
the formalities of a will. Due to the denial of the petitioners Motion for Reconsideration, the present Petition for
Review has been filed.
Whether or not the Deed of Donation is donation inter vivos and whether or not such deed is valid.
If so, whether or not Matilde Aluad has the right to convey the lots in question to Zenaido Aluad.
The Court finds the donation to Maria Aluad (petitioners mother) one of mortis causa, it having the following
characteristics:

1. It conveys no title or ownership to the transferee before the death of the transferor, or what
amounts to the same thing, that the transferor should retain the ownership (full or naked) and
control of the property while alive;

2. That before the death of the transferor, the transfer should be revocable, by the transferor at
will, ad nutum, but revocability may be provided for indirectly by means of a reserved power in
the donor to dispose of the properties conveyed; and

3. That the transfer should be void of the transferor should survive the transferee.
The phrase in the earlier-qouted Deed of Donation to become effective upon the death of the DONOR admits of no
other interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to petitioners

mother during the formers lifetime. Further the statement, anytime during the lifetime of the DONOR or anyone of
them who should survive, they could use, encumber or even dispose of any or even all the parcels of land herein
donated, means that Matilde retained ownership of the lots and reserved in her the right to dispose them. For the
right to dispose of a thing without other limitations than those established by law is an attribute of ownership. The
phrase, anyone of them who should survive is out of sync. For the Deed of Donation clearly stated that it would take
effect upon the death of the donor, hence, said phrase could only have referred to the donor.
The donation being then mortis causa, the formalities of a will should have been observed but they were not, as it was
witnessed by only two, not three or more witnesses following Article 805 of the Civil Code. It is void and transmitted
no right to petitioners mother. But even assuming arguendo that the formalities were observed, since it was not
probated, no right to the two lots was transmitted to Maria. Matilde thus validly disposed the lot to Zenaido by her last
will and testament, subject to the qualification that her will must be probated. With respect to the conveyed lot, the
same had been validly sold by Matilde to Zenaido.