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.
 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 Seño 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 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.

[G.R. No. L-12190. August 30, 1958.]

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, Petitioner-Appellant, v. ILDEFONSO YAP, Oppositor-Appellee.

Benedicto C. Balderrama, Crispin D. Baizas and Roberto H. Benitez for Appellant.

Arturo M. Tolentino for Appellee.

SYLLABUS

1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW

PROVED. — 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. The will
itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity.
 DECISION

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University
of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:jgc:chanrobles.com.ph

"Nobyembre 5, 1951

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang

aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamaganakang sumusunod:chanrob1es virtual 1aw library

Vicente Esguerra, Sr. 5 Bahagi

Fausto E. Gan 2 Bahagi

Rosario E. Gan 2 Bahagi

Filomena Alto 1 Bahagi

Beatriz Alto 1 Bahagi

‘At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking
ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siya’y magpapagawa ng
isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan
ng Pulilan, Bulacan, na nakaukit ang aking pañgalang Felicidad Esguerra-Alto. At kung ito
ay may kakulañgan man ay bahala na ang aking asawa ang magpuno upang matupad ang
aking kagustuhan.’

(Lagda) Felicidad E. Alto-Yap"

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 Hon. Ramon R. San Jose,
Judge, 1 refused to probate the alleged will. A seventy-page motion for reconsideration
failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution
by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and
Rosario Gan Jimenez, whose testimonies may be summarized as follows:chanrob1es virtual
1aw library

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first
 cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be
useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it
could be done without any witness, provided the document was entirely in her handwriting,
signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and
on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna
Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the
tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente),
who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant
relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina
Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of Felina Esguerra, who read it
for the third time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last
illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But
a few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and being afraid
of him by reason of his well-known violent temper, she- delivered it to him. Thereafter, in
the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day
shortly before the death of Felicidad. Again, Felina handed it to him but not before she had
taken the purse to the toilet, opened it and read the will for the last time. 2

From the oppositor’s proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent
physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband
and wife journeyed to the United States wherein for several weeks she was treated for the
disease; that thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she suffered
several attacks, the most serious of which happened in the early morning of the first
Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even
the teachers of the Harvardian Colleges occupying the lower floors and owned by the Yap
spouses. Physician’s help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00
a.m., found the patient hardly breathing, lying in bed, her head held high by her husband.
Injections and oxygen were administered. Following the doctor’s advice the patient stayed
in bed, and did nothing the whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap
made no will, and could have made no will on that day.

The trial judge refused to credit the petitioner’s evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to keep
her will a secret, so that her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in
the absence of a showing that Felina was a confidant of the decedent it is hard to believe
that the latter would have allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez
and Socorro Olarte to read her will, when she precisely wanted its contents to remain a
secret during her lifetime; (d) it is also improbable that her purpose being to conceal the
will from her husband she would carry it around, even to the hospital, in her purse which
could for one reason or another be opened by her husband; (e) if it is true that the husband
 demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is
hard to believe that he returned it without destroying the will, the theory of the petitioner
being precisely that the will was executed behind his back for fear he will destroy it.

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.

In this appeal, the major portion of appellant’s brief discussed the testimony of the
oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the
same arguments, or most of them, were presented in the motion to reconsider; but they
failed to induce the court a quo to change its mind. The oppositor’s brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters,
because in our opinion the case should be decided not on the weakness of the opposition
but on the strength of the evidence of the petitioner, who has the burden of proof.

The Spanish Civil Code permited the execution of holographic wills along with other forms.
The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form,
thereby repealing the other forms, including holographic wills.

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."cralaw virtua1aw library

This is indeed 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.

The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authenticity (Abangan
v. Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the testator
would succeed him and be benefited with the probate of same. (Mendoza v. Pilapil, 40 off.
Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez v. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.) .

Authenticity and due execution is the dominant requirement 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. (Cabang v. Delfinado 34 Phil., 291; Tolentino v.
Francisco, 57 Phil., 742). 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 of its due execution.

Now, in the matter of 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." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity, and as
its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the
hands 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."cralaw virtua1aw library

The witnesses so presented do not need to have seen the execution of the holographic will.
They may be mistaken in their opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator’s hand. However, the oppositor may present other witnesses
who also know the testator’s handwriting, or some expert witnesses, who after comparing
the will with other writings or letters of the deceased, have come to the conclusion that
such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own visual sense, and decide in
the face of the document, whether the will submitted to it has indeed been written by the
testator.

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 3 —
the testator’s handwriting — has disappeared.

Therefore, the question presents itself, 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? How can the oppositor prove that such document was not in
the testator’s handwriting? His witnesses who know testator’s handwriting have not
examined it. His experts can not testify, because there is no way to compare the alleged
testament with other documents admittedly, or proven to be, in the testator’s hand. The
oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of
the will or the form thereof, and the nether millstone of his inability to prove its falsity.
Again the proponent’s witnesses may be honest and truthful; but they may have been
shown a faked document, and having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they
have not "been shown" a document which they believed was in the handwriting of the
deceased. Of course, the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings sufficiently similar to
those written by the deceased; but what witness or lawyer would not foresee such a move
and prepare for it? His knowledge of the handwriting established, the witness (or witnesses)
could simply stick to his statement: he has seen and read a document which he believed
was in the deceased’s handwriting. And the court and the oppositor would practically be at
the mercy of such witness (or witnesses) not only as to the execution, but also as to the
contents of the will. Does the law permit such a situation?

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. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) .

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is
that it may be lost or stolen 4 — an implied admission that such loss or theft renders it
 useless.

This must be so, because the Civil Code requires it to be protocoled and presented to the
judge, (Art. 689) who shall subscribe it and require its identity to be established by the
three witnesses who depose that they have no reasonable doubt that the will was written by
the testator (Art. 691). And if the judge considers that the identity of the will has been
proven he shall order that it be filed (Art. 693). All these, imply presentation of the will
itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving
spouse and the legitimate ascendants and descendants be summoned so that they may
make "any statement they may desire to submit with respect to the authenticity of the will."
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.

Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it spurious. 5
Such purpose is frustrated when the document is not presented for their examination. If it
be argued that such choice is not essential, because anyway the relatives may oppose, the
answer is that their opposition will be at a distinct disadvantage, and they have the right
and privilege to comply with the will, if genuine, a right which they should not be denied by
withholding inspection thereof from them.

We find confirmation of these ideas — about exhibition of the document itself — in the
decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or
probate to a document containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words having been torn from
it. Even in the face of allegations and testimonial evidence (which was controverted),
ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that,
in accordance with the provision of the Civil Code (Spanish) the will itself, whole and
unmutilated, must be presented; otherwise, it shall produce no effect.

"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo

688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito
todo el y firmado por testador, con expression del año, mes y dia en que se otorque, resulta
evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se llenaron todos esos requisitos, sino que de
la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se
desprende la necesidad de que el documento se encuentre en dichas condiciones en el
momento de ser presentado a la Autoridad competente, para su adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estar firmado por el testador, cualquiera que sea la
causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los
perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la
hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto
insubsanable . . . ."cralaw virtua1aw library

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. 6
 "PRECEDENTES LEGALES — Fuero Juzgo, libro segundo, titulo V, ley 15 — E depues que
los herederos e sus fijos ovieren esta manda, fasta . . . annos muestrenla al obispo de la
tierra, o al juez fasta Vl meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la
letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el
obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta
manera vala la manda." (Art. 689, Scaevola - Codigo Civil.)

(According to the Fuero above, 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.
7

Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz
Cruz, 1946, Tomo V, page 555).

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. 8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate,
however, to make this Rule decisive of this controversy, simultaneously with its
promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.

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 lend 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 9 only one man
could engineer the whole 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. 10

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.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge’s disbelief. In addition to the dubious circumstances described in the appealed
decision, we find it hard to believe that the deceased should show her will precisely to
relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could
pester her into amending her will to give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another point: if she wanted so much to
conceal the will from her husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her husband’s trip to Davao, a few days
after the alleged execution of the will.

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. 11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

 Rodelas v. Aranza
119 SCRA 16
FACTS:

Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:

1.Rodelas was estopped from claiming that the deceased left a will by failing to produce the
will within twenty days of the death of the testator as required by Rule 75, section 2 of the
Rules of Court;

2.the copy of the alleged holographic will did not contain a disposition of property after
death and was not intended to take effect after death, and therefore it was not a will, it was
merely an instruction as to the management and improvement of the schools and colleges
founded by the decedent;

3.the hollographic will itself, and not an alleged copy thereof, must be produced, otherwise
it would produce no effect because lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.

4.the deceased did not leave any will, holographic or otherwise, executed and attested as
required by law.

MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.

The CFI set aside its order and dismissed the petition for the probate of the will stating that
“in the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that ‘in the matter
of holographic wills the law, it is reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.”
 And that the alleged holographic will was executed on January 25, 1962 while Ricardo
B. Bonilla died on May 13, 1976. The lapse of more than 14 years from the time of the
execution of the will to the death of the decedent and the fact that the original of the will
could not be located shows to that the decedent had discarded the alleged holographic will
before his death.

Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et al. moved to
forward the case to the SC as it involves a question of law not of fact.

ISSUE:

W/N a holographic will which was lost or cannot be found can be proved by means of a
photostatic copy.

HELD:

If the holographic will has been lost or destroyed and no other copy is available, the will
cannot be probated because the best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the handwritten will.

But, a photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made by the probate court with the standard writings of the testator.
The probate court would be able to determine the authenticity of the handwriting of the
testator.

In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled 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. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the document itself as material proof
of authenticity.” But, in Footnote 8 of said decision, it says that “Perhaps it may be proved
by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court,”

Kalaw v. Relova
132 SCRA 237

FACTS:

On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his deceased sister,
Natividad Kalaw, filed a petition for the probate of her holographic Will executed on
December 24, 1968.

The holographic Will, as first written, named Rosa Kalaw, a sister of the testatrix as her
sole heir. She opposed probate alleging that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by the full signature of the
testatrix as required by Article 814 of the Civil Code reading: Art. 814. In case of
any insertion, cancellation, erasure or alteration in a holographic will the testator must
authenticate the same by his full signature.
 ROSA’s position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.

Trial Court denied petition to probate the holographic will. Reconsideration denied.

ISSUE:

W/N the original unaltered text after subsequent alterations and insertions were voided by
the Trial Court for lack of authentication by the full signature of the testatrix, should be
probated or not, with Rosa as sole heir.

HELD:

Ordinarily, when a number of erasures, corrections, and interlineations made by the

testator in a holographic Will litem not been noted under his signature, … the Will is not
thereby invalidated as a whole, but at most only as respects the particular words erased,
corrected or interlined.

However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with another, but
which alteration did not carry the requisite of full authentication by the full signature of the
testator, the effect must be that the entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations,
erasures or alterations in a holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix herein, her
real intention cannot be determined with certitude.

Gonzales v. CA
90 SCRA 183

FACTS:
Isabel Gabriel died on June 7, 1961 without issue. Lutgarda Santiago (respondent), niece of
Isabel, filed a petition for probate of Isabel’s will designating her as the principal beneficiary
and executrix. The will was typewritten in Tagalog and was executed 2 months prior to
death of Isabel.
The petition was opposed by Rizalina Gonzales (petitioner), also a niece of Isabel, on the
following grounds: 1. the will is not genuine, 2. will was not executed and attested as
required by law, 3. the decedent at the time of the making of the will did not have
testamentary capacity due to her age and sickness, and 4. the will was procured through
undue influence.
The trial court disallowed the probate of the will but the Court of Appeals Reversed the said
decision of the trial court. The petitioner filed a petition for review with SC claiming that the
CA erred in holding that the will of the decedent was executed and attested as required by
law when there was absolutely no proof that the 3 instrumental witnesses are credible.

ISSUE:

1. 1. Can a witness be considered competent under Art 820-821 and still not be considered
credible as required by Art. 805?

2. Is it required that there must be evidence on record that the witness to a will has good
standing in his/her community or that he/she is honest or upright?

HELD:

1.Yes. The petitioner submits that the term credible in Article 805 requires something more
than just being competent and, therefore, a witness in addition to being competent under
Articles 820-821 must also be credible under Art. 805. The competency of a person to be an
instrumental witness to a will is determined by the statute (Art. 820 and 821), whereas
his credibility depends on the appreciation of his testimony and arises from the belief and
conclusion of the Court that said witness is telling the truth. In the case of Vda. de Aroyo v.
El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court
held and ruled that: “Competency as a witness is one thing, and it is another to be a
credible witness, so credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he is competent, but
may thereafter decide whether to believe or not to believe his testimony.”

2.No. There is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for
trustworthiness and for being reliable, his honesty and uprightness (such attributes are
presumed of the witness unless the contrary is proved otherwise by the opposing party) in
order that his testimony may be believed and accepted by the trial court. It is enough that
the qualifications enumerated in Article 820 of the Civil Code are complied with, such that
the soundness of his mind can be shown by or deduced from his answers to the questions
propounded to him, that his age (18 years or more) is shown from his appearance,
testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf
or dumb and that he is able to read and write to the satisfaction of the Court, and that he
has none of the disqualifications under Article 821 of the Civil Code.
 Casiano v. CA
158 SCRA 451

FACTS:

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on November 4, 1963 an intestate
proceeding for the settlement of their aunt’s estate in the CFI of Iloilo. While the case was
still pending the parties — Aldina, Constancio, Panfilo, and Felino — executed an
agreement of extrajudicial settlement of Adriana’s estate. The agreement provided for the
division of the estate into four equal parts among the parties. The Malotos then presented
the extrajudicial settlement agreement to the trial court for approval which the court did on
March 21, 1964.

3 years later, Atty. Sulpicio Palma, a former associate of Adriana’s counsel, the late
Atty. Eliseo Hervas, discovered a document entitled “KATAPUSAN NGA PAGBUBULAT-AN
(Testamento),” dated January 3,1940, and purporting to be the last will and testament of
Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was
going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the clerk of court of the Iloilo CFI. Incidentally, while Panfilo
and Felino are still named as heirsin the said will, Aldina and Constancio are bequeathed
much bigger and more valuable shares in the estate of Adriana than what they received by
virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise
gives devises and legacies to other parties, among them being the petitioners Asilo de Molo,
the Roman Catholic Church of Molo, and Purificacion Miraflor.

Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in
the same court which approved the EJ settelement a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will which was denied by
the CFI. Upon petition to the SC for certiorari and mandamus, the SC dismissed that
petition and advised that a separate proceeding for the probate of the alleged will would be
the appropriate vehicle to thresh out the matters raised by the petitioners. The CFI and CA
found that the will to be probated had been revoked by the burning thereof by
the housemaid upon instruction of the testatrix.

ISSUE:

W/N the will was revoked by Adriana.

HELD:

No. The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
The physical act of destruction of a will, like burning in this case, does not per se constitute
an effective revocation, unless the destruction is coupled with animus revocandi on the part
of the testator. It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under the express direction and in the
presence of the testator. Of course, it goes without saying that the document destroyed
must be the will itself.
“Animus revocandi” is only one of the necessary elements for the effective revocation of a
last will and testament. The intention to revoke must be accompanied by the overt physical
act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by
another person in his presence and under his express direction.

There is paucity of evidence to show compliance with these requirements. For one, the
document or papers burned by Adriana’s maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the
burning was not proven to have been done under the express directionof Adriana. And
then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were
one in stating that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers proffered as a will were
burned.

The two witnesses were illiterate and does not appear to be unequivocably positive that the
document burned was indeed Adriana’s will. Guadalupe believed that the papers she
destroyed was the will only because, according to her, Adriana told her so. Eladio, on the
other hand, obtained his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this point is double hearsay.

It is an important matter of public interest that a purported win is not denied legalization
on dubious grounds. Otherwise, the very institution of testamentary succession will be
shaken to its very foundations.
 Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel
Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the
Province of La Union. It appears from the record that on or about the 27th day of July,
1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the
month of January, 1922, the said Francisco Gago presented a petition in the Court of First
Instance of the Province of La Union for the probation of that will. The probation of the
same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and
Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the
parties the petition for the probation of said will was denied by the Honorable C. M.
Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the
16th day of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to
secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said
petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac
presented their oppositions, alleging (a) that the said will is a copy of the second will and
testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and
revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last
will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing
the respective parties, denied the probation of said will of April 16, 1919, upon the ground
that the same had been cancelled and revoked in the year 1920. Judge Teodoro, after
examining the evidence adduced, found that the following facts had been satisfactorily
proved:

That Exhibit A is a mere carbon of its original which remained in the possession of
the deceased testator Miguel Mamuyac, who revoked it before his death as per
testimony of witness Jose Fenoy, who typed the will of the testator on April 16, 1919,
and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will of
1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar
that inasmuch as he had sold him a house and the land where the house was built,
he had to cancel it (the will of 1919), executing thereby a new testament. Narcisa
Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will
executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of
father Miguel Mamuyac. The opponents have successfully established the fact that
father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago,
the sister of the deceased, who was living in the house with him, when cross-
examined by attorney for the opponents, testified that the original Exhibit A could not
be found. For the foregoing consideration and for the reason that the original of
Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court
disallows the probate of Exhibit A for the applicant." From that order the petitioner
appealed.

The appellant contends that the lower court committed an error in not finding from the
evidence that the will in question had been executed with all the formalities required by the
law; that the same had been revoked and cancelled in 1920 before his death; that the said
will was a mere carbon copy and that the oppositors were not estopped from alleging that
fact.

With reference to the said cancellation, it may be stated that there is positive proof, not
denied, which was accepted by the lower court, that will in question had been cancelled in
1920. The law does not require any evidence of the revocation or cancellation of a will to be
preserved. It therefore becomes difficult at times to prove the revocation or cancellation of
wills. The fact that such cancellation or revocation has taken place must either remain
unproved of be inferred from evidence showing that after due search the original will cannot
be found. Where a will which cannot be found is shown to have been in the possession of
the testator, when last seen, the presumption is, in the absence of other competent
evidence, that the same was cancelled or destroyed. The same presumption arises where it
is shown that the testator had ready access to the will and it cannot be found after his
death. It will not be presumed that such will has been destroyed by any other person
without the knowledge or authority of the testator. The force of the presumption of
cancellation or revocation by the testator, while varying greatly, being weak or strong
according to the circumstances, is never conclusive, but may be overcome by proof that the
will was not destroyed by the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the
testator Miguel Mamuyac and in view of the positive proof that the same had been
cancelled, we are forced to the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to probate a will the burden of
proofs is upon the proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the contestant to show
that it has been revoked. In a great majority of instances in which wills are destroyed for
the purpose of revoking them there is no witness to the act of cancellation or destruction
and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper testimony
that a will was executed in duplicate and each copy was executed with all the formalities
and requirements of the law, then the duplicate may be admitted in evidence when it is
made to appear that the original has been lost and was not cancelled or destroyed by the
testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)

After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the judgment
appealed from is hereby affirmed. And without any finding as to costs, it is so ordered.