Jesus and that on pages 21, 22, 23 and 24 thereof,
IN THE MATTER OF THE INTESTATE ESTATE OF
ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS,
SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for
Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the
order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila,
Branch XXI disallowing the probate of the
holographic Will of the deceased Bibiana Roxas de
Jesus.
The antecedent facts which led to the filing of this
petition are undisputed.
After the death of spouses Andres G. de Jesus and
Bibiana Roxas de Jesus, Special Proceeding No.
81503 entitled "In the Matter of the Intestate
Estate of Andres G. de Jesus and Bibiana Roxas de
Jesus" was filed by petitioner Simeon R. Roxas, the
brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas
was appointed administrator. After Letters of
Administration had been granted to the petitioner,
he delivered to the lower court a document
purporting to be the holographic Will of the
deceased Bibiana Roxas de Jesus. On May 26,
1973, respondent Judge Jose Colayco set the
hearing of the probate of the holographic Win on
July 21, 1973.
Petitioner Simeon R. Roxas testified that after his
appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de
a letter-win addressed to her children and entirely
written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61 " and states: "This is my win which I
want to be respected although it is not written by
a lawyer. ...
The testimony of Simeon R. Roxas was
corroborated by the testimonies of Pedro Roxas de
Jesus and Manuel Roxas de Jesus who likewise
testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother, Bibiana
R. de Jesus. Both recognized the handwriting of
their mother and positively Identified her
signature. They further testified that their
deceased mother understood English, the
language in which the holographic Will is written,
and that the date "FEB./61 " was the date when
said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory
heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with
law, (b) it was executed through force, intimidation
and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix
acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C.
Colayco issued an order allowing the probate of
the holographic Will which he found to have been
duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of
the Civil Code. She contends that the law requires
that the Will should contain the day, month and
year of its execution and that this should be strictly
complied with.
On December 10, 1973, respondent Judge Colayco
reconsidered his earlier order and disallowed the
probate of the holographic Will on the ground that
the word "dated" has generally been held to
include the month, day, and year. The dispositive
portion of the order reads:
WHEREFORE, the document
purporting to be the holographic
Will of Bibiana Roxas de Jesus, is
hereby disallowed for not having
been executed as required by the
law. The order of August 24, 1973
is hereby set aside.
The only issue is whether or not the date "FEB./61
" appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code
which reads:
ART. 810. 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.
The petitioners contend that while Article 685 of
the Spanish Civil Code and Article 688 of the Old
Civil Code require the testator to state in his
holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the
phrase Año mes y dia and simply requires that the
holographic Will should be dated. The petitioners
submit that the liberal construction of the
holographic Will should prevail.
Respondent Luz Henson on the other hand submits
that the purported holographic Will is void for non-
compliance with Article 810 of the New Civil Code
in that the date must contain the year, month, and
day of its execution. The respondent contends that
Article 810 of the Civil Code was patterned after
Section 1277 of the California Code and Section
1588 of the Louisiana Code whose Supreme Courts
had consistently ruled that the required date
includes the year, month, and day, and that if any
of these is wanting, the holographic Will is invalid.
The respondent further contends that the
petitioner cannot plead liberal construction of
Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the
execution of holographic Wills are strictly
construed.
We agree with the petitioner.
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. We should not overlook the
liberal trend of the Civil Code in the manner of
execution of Wills, the purpose of which, in case of
doubt is to prevent intestacy —
The underlying and fundamental
objectives permeating the
provisions of the law on wigs 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 sufficien
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 modem tendency with
respect to the formalities in the
execution of wills. (Report of the
Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs
of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx
... The law has a tender regard for
the will of the testator expressed
in his last will and testament on
the ground that any disposition
made by the testator is better
than that which the law can
make. For this reason, intestate
succession is nothing more than a
 disposition based upon the
presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction
of the legal requirements in order to guard against
fraud and bad faith but without undue or
unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). 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 Win should be admitted to probate
(Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the
facts and circumstances of record
are to be considered in the
application of any given rule. If
the surrounding circumstances
point to a regular execution of
the wilt and the instrument
appears to have been executed
substantially in accordance with
the requirements of the law, the
inclination should, in the absence
of any suggestion of bad faith,
forgery or fraud, lean towards its
admission to probate, although
the document may suffer from
some imperfection of language,
or other non-essential defect. ...
(Leynez v. Leynez 68 Phil. 745).
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.
The purpose of the solemnities surrounding the
execution of Wills has been expounded by this
Court in Abangan v. Abanga 40 Phil. 476, where
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 Bibiana Roxas
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.
WHEREFORE, the instant petition is GRANTED. The
order appealed from is REVERSED and SET ASIDE
and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.
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 actof Melecio who plainly knew that
he was executing a will.
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,”
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.
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 mannerrequired 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.
Ajero v. CA
236 SCRA 488
FACTS:
The holographic will of Annie San was submitted for
probate.
Private respondent opposed the petition on the
grounds that: neither the testament’s body nor the
signature therein was in decedent’s handwriting; it
contained alterations and corrections which were
not duly signed by decedent; and, the will was
procured by petitioners through improper pressure
and undue influence.
The petition was also contested by Dr. Ajero with
respect to the disposition in the will of a house and
lot. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not
its sole owner.
However, the trial court still admitted the
decedent’s holographic will to probate.
The trial court held that since it must decide only
the question of the identity of the will, its due
execution and the testamentary capacity of the
testatrix, it finds no reason for the disallowance of
the will for its failure to comply with the formalities
prescribed by law nor for lack of
testamentary capacity of the testatrix.
On appeal, the CA reversed said Decision holding
that the decedent did not comply with Articles 313
and 314 of the NCC. It found that certain
dispositions in the will were either unsigned or
undated, or signed by not dated. It also found that
the erasures, alterations and cancellations made
had not been authenticated by decedent.
ISSUE:
Whether the CA erred in holding that Articles 813
and 814 of the NCC were not complies with.
HELD:
YES. A reading of Article 813 shows that its
requirement affects the validity of the dispositions
contained in the holographic will, but not its
probate. If the testator fails to sign and date some
of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure,
however, does not render the whole testament
void.
Likewise, a holographic will can still be admitted to
probate notwithstanding non-compliance with the
provisions of Article 814.
Unless the authenticated alterations, cancellations
or insertions were made on the date of the
holographic will or on testator’s signature, their
presence does not invalidate the will itself. The lack
of authentication will only result in disallowance of
such changes.
It is also proper to note that
he requirements of authentication of changes and
signing and dating of dispositions appear in
provisions (Article 813 and 814) separate from that
which provides for the necessary conditions for the
validity of the holographic will (Article 810).
This separation and distinction adds support to the
interpretation that only the requirements of Article
810 of the NCC – and not those found in Articles 813
and 814 – are essential to the probate of a
holographic will.
Section 9, Rule 76 of the Rules of Court and Article
839 of the Civil Code enumerate the grounds for
disallowance of wills. These lists are exclusive; no
other grounds can serve to disallow a will.
In a petition to admit a holographic will, the only
issues to be resolved are:
1.whether the instrument submitted is, indeed, the
decedent’s last will and testament;
2.whether said will was executed in accordance
with the formalities prescribed by law;
3.whether the decedent had the necessary
testamentary capacity at the time the will was
executed; and
4.whether the execution of the will and its signing
were the voluntary acts of the decedent.
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud; accordingly, laws on this subject
should be interpreted to attain these primordial
ends.
In the case of holographic wills, what assures
authenticity is the requirement that they be totally
authographic or handwritten by the testator
himself. Failure to strictly observe other formalities
will no result in the disallowance of a holographic
will that is unquestionable handwritten by the
testator.