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SUCCESSION LECTURE - 05/09/2019

TESTAMENTARY CAPACITY AND INTENT

Art. 796. All persons who are not expressly prohibited by law may make a will. (662)

Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)

Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its
execution. (n)

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of the
estate to be disposed of, the proper objects of his bounty, and the character of the testamentary
act. (n)

Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

The burden of proof that the testator was not of sound mind at the time of making his dispositions is
on the person who opposes the probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval. (n)

Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable
validated by the supervening of capacity. (n)

Art. 802. A married woman may make a will without the consent of her husband, and without the
authority of the court. (n)

Art. 803. A married woman may dispose by will of all her separate property as well as her share of the
conjugal partnership or absolute community property. (n)

CASE:
BALTAZAR vs. LAXA G.R. No. 174489, April 11, 2012

FACTS: Paciencia was a 78 year old spinster when she made her last will and testament in the
Pampango dialect on Sept. 13, 1981. The will, executed in the house of retired Judge Limpin, was read
to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses
that the document is her last will and testament. She thereafter affixed her signature at the end of
the said document on page 3 and then on the left margin of pages 1, 2 and 4 thereof.

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent
Lorenzo Laxa and his wife Corazon Laza and their children Luna and Katherine. Lorenzo is Paciencia’s
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated Paciencia
as his own mother.

Six days after the execution of the Will (Sept. 19, 1981), Paciencia left for USA. There, she resided with
Lorenzo and his family until her death on Jan. 4, 1996. In the interim, the Will remained in the custody
of Judge Limpin.

More than 4 years after the death of Paciencia or on Apr. 27, 2000, Lorenzo filed a petition with the
RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of
Administration in his favor.

On Jun 23, 2000 one of petitioners, Antonio Baltazar filed an opposition to Lorenzo’s petition. Antonio
averred that the properties subject of Paciencia’s Will belong to Nicomeda Mangalindan, his
predecessor-in-interest; hence, Paciencia had no right to bequeath them to Lorenzo. Also, one of the
petitioners, Rosie Mateo testified that Paciencia is in the state of being “mangulyan” or forgetful
making her unfit for executing a will and that the execution of the will had been procured by undue
and improper pressure and influence.

Petitioners also opposed the issuance of the Letters of Administration in Lorenzo’s favor arguing that
Lorenzo was disqualified to be appointed as such, he being a citizen and resident of the USA.
Petitioners prayed that Letters of Administration be instead issued in favor of Antonio.

RTC denies the petition for probate of the will and concluded that when Paciencia signed the will, she
was no longer possessed of the sufficient reason or strength of mind to have the testamentary
capacity. On appeal, CA reversed the decision of the RTC and granted the probate of the will. The
petitioner went up to SC for a petition for review on Certiorari.

ISSUE: Whether the authenticity and due execution of the will was sufficiently established to warrant
its allowance for probate.

HELD: Yes. A careful examination of the face of the Will shows faithful compliance with the formalities
laid down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and the notary
public, are all present and evident on the Will. Further, the attestation clause explicitly states the
critical requirement that the testatrix and her instrumental witnesses attested and subscribed to the
Will in the presence of the testator and of one another. In fact, even the petitioners acceded that the
signature of Paciencia in the Will may be authentic although they question of her state of mind when
she signed the same as well as the voluntary nature of said act.

The burden to prove that Paciencia was of unsound mind at the time of the execution of the will lies
on the shoulders of the petitioners. The SC agree with the position of the CA that the state of being
forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a
Will. Forgetfulness is not equivalent to being of unsound mind. Besides, Art. 799 of the NCC states:
“To be of unsound mind, it is not necessary that the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other
cause. It shall be sufficient if the testator was able at the time of making the Will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.”

FORMALITIES OF WILLS

1. Ordinary Wills

a. General Formalities

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

CASE:

SUROZA vs. HONRADO 110 SCRA 388

FACTS: Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared a boy named
Agapito. Agapito and his wife Nenita de Vera had a daughter named Lilia. Nenita became Agapito’s
guardian when he became disabled. A certain Arsenia de la Cruz also wanted to be his guardian in
another proceeding but it was dismissed. Arsenia then delivered a child named Marilyn Sy to
Marcelina who brought her up as a supposed daughter of Agapito. Marilyn used the surname Suroza
although not legally adopted by Agapito. When Marcelina (who was an illiterate) was 73 years old,
she supposedly executed a notarial will which was in English and thumbmarked by her. In the will, she
allegedly bequeathed all her properties to Marilyn. She also named as executrix her laundrywoman,
Marina Paje. Paje filed a petition for probate of Marcelina’s will. Judge Honrado appointed Paje as
administratrix and issued orders allowing the latter to withdraw money from the savings account of
Marcelina and Marilyn, and instructing the sheriff to eject the occupants of testatrix’s house, among
whom was Nenita. She and the other occupants filed a motion to set aside the order ejecting them,
alleging that Agapito was the sole heir of the deceased, and that Marilyn was not the decedent’s
granddaughter. Despite this, Judge Honrado issued an order probating Marcelina’s will.
Nenita filed an omnibus petition to set aside proceedings, admit opposition with counter-petition for
administration and preliminary injunction, and an opposition to the probate of the will and a counter-
petition for letters of administration, which were dismissed by Judge Honrado. Instead of appealing,
Nenita filed a case to annul the probate proceedings but Judge Honrado dismissed it. The judge then
closed the testamentary proceeding after noting that the executrix had delivered the estate to
Marilyn, and that the estate tax had been paid.

Ten months later, Nenita filed a complaint before the SC, charging Judge Honrado with having
probated the fraudulent will of Marcelina. She reiterated her contention that the testatrix was
illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not
know English, the language in which the will was written. She further alleged that Judge Honrado did
not take into account the consequences of the preterition of testatrix’s son, Agapito. Judge Honrado
in his comment did not deal specifically with the allegations but merely pointed to the fact that
Nenita did not appeal from the decree of probate and that in a motion, she asked for a thirty day
period within which to vacate the house of the testatrix. Nenita subsequently filed in the CA a petition
for certiorari and prohibition against Judge Honrado wherein she prayed that the will, the decree of
probate and all the proceedings in the probate case be declared void. The CA dismissed the petition
because Nenita’s remedy was an appeal and her failure to do so did not entitle her to resort to the
special civil action of certiorari. Relying on that decision, Judge Honrado filed a MTD
the administrative case for having allegedly become moot and academic.

ISSUE: Whether or not disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language not known to the
illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did
not appearbefore the notary as admitted by the notary himself.

HELD: YES. Respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void. In
the opening paragraph of the will, it was stated that English was a language “understood and known”
to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix
“and translated into Filipino language”. That could only mean that the will was written in a language
not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of
article 804 of the Civil Code that every will must be executed in a language or dialect known to the
testator.

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly referred to as the “testator” instead of “testatrix”. Had
respondent judge been careful and observant, he could have noted not only the anomaly as to the
language of the will but also that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by the deputy clerk of court, respondent judge could have
noticed that the notary was not presented as a witness. In spite of the absence of an opposition,
respondent judge should have personally conducted the hearing on the probate of the will so that he
could have ascertained whether the will was validly executed.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another.

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805. (n)

CASES:

PAYAD vs. TOLENTINO G.R. No. 42258, January 15, 1936

FACTS: Victorio Payad filed a petition for the probate of the will of the decedent Leoncia Tolentino.
This was opposed by Aquilina Tolentino, averring that said Will was made only after the death of the
testatrix. The lower court denied the probate of the will on the ground that the attestation clause was
not in conformity with the requirements of the law since it was not stated therein that the testatrix
caused Atty. Almario to write her name at her express direction. Hence, this petition.

ISSUE: Whether or not it was necessary that the attestation clause state that the testatrix caused
Atty. Almario to write her name at her express direction.

HELD: The evidence of record establishes the fact the Leoncia Tolentino, assisted by Attorney Almario,
placed her thumb mark on each and every page of the questioned will and that said attorney merely
wrote her name to indicate the place where she placed said thumb mark. In other words Attorney
Almario did not sign for the testatrix. She signed by placing her thumb mark on each and every page
thereof. "A statute requiring a will to be 'signed' is satisfied if the signature is made by the testator's
mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104,
108.) It is clear, therefore, that it was not necessary that the attestation clause in question should
state that the testatrix requested Attorney Almario to sign her name inasmuch as the testatrix signed
the will in question in accordance with law.

GARCIA vs. LACUESTA 90 Phil 489

FACTS: This case involves the will of Antero Mercado, which among other defects was signed by the
testator through a cross mark (an “X”). The will was signed by Atty. Javier who wrote the name of
Mercado as testator and the latter allegedly wrote a cross mark after his name. The CFI allowed the
will but the CA disallowed it because its attestation clause was defective for failing to certify 1) that
the will was signed by Atty. Javier at the express direction of the testator, 2) that the testator wrote a
cross at the end of his name after Atty. Javier signed for him, and 3) that the 3 witnesses signed the
will in the presence of the testator and of each other.
ISSUE: Whether the will should be allowed despite the defect of the attestation clause since the
testator had placed a cross mark himself as his signature.

HELD: The attestation clause is fatally defective for failing to state that Mercado directed Javier to
write the testator’s name under his express direction. Petitioner’s argument that such recital is
unnecessary because the testator signed the will himself using a cross mark which should be
considered the same as a thumb-mark (which has been held sufficient in past cases) is not acceptable.
A cross mark is not the same as a thumb mark, because the cross mark does not have the same
trustworthiness of a thumb mark.

BARUT vs. CABACUNGAN 21 Phil 461

FACTS: Barut applied for the probate of the will of deceased, Maria Salomon. The testatrix stated in
the will that being unable to read or write, the will was read to her by Ciriaco Concepcion and Timotea
Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix. The probate
was contested by a number of the relatives of the deceased on various grounds.

The probate court found that the will was not entitled to probate because “the handwriting of the
person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more
like the handwriting of one of the other witnesses to the will than to the person whose handwriting it
was alleged to be” (i.e. The probate court denied probate because the signature seemed to not have
been by Severo Agayan but by another witness).

ISSUE: Whether or not the dissimilarity in handwriting was sufficient to deny probate of the will.

HELD: No. The SC found that the mere dissimilarity in writing is sufficient to overcome the
uncontradicted testimony of all the witnesses that the signature of the testatrix was written by
Severo Agayan. It is also immaterial who writes the name of the testatrix provided it is written at her
request and in her presence and in the presence of all the witnesses to the execution of the will.

Based on Section 618 of the Code of Civil Procedure, it is clear that with respect to the validity of the
will, it is unimportant whether the person who writes the name of the testatrix signs his own or not.
The important thing is that it clearly appears that the name of the testatrix was signed at her express
direction in the presence of 3 witnesses and that they attested and subscribed it in her presence and
in the presence of each other. It may be wise that the one who signs the testator’s name signs also his
own; but that is not essential to the validity of the will.

The court also held that the 3 cases cited by the lower court was not applicable. In those cases, the
person who signed the will for the testator wrote his own name instead of the testator’s, so that the
testator’s name nowhere appeared in the will, and were thus wills not duly executed.
ABANGAN vs. ABANGAN GR No. L-13431, November 12, 1919

FACTS: On September 19, 1917, CFI of Cebu admitted to probate Ana Abangan's will executed July,
1916. Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which
contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three witnesses. The following sheet contains
only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of
these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by
letters; and these omissions, according to appellants' contention, are defects whereby the probate of
the will should have been denied.

ISSUE: Whether or not the will was duly admitted to probate.

HELD: YES. In requiring that each and every sheet of the will should also be signed on the left margin
by the testator and three witnesses in the presence of each other, Act No. 2645 (which is the one
applicable in the case) evidently has for its object (referring to the body of the will itself) to avoid the
substitution of any of said sheets, thereby changing the testator's dispositions. But when these
dispositions are wholly written on only one sheet signed at the bottom by the testator and three
witnesses (as the instant case), their signatures on the left margin of said sheet would be completely
purposeless. In requiring this signature on the margin, the statute took into consideration,
undoubtedly, the case of a will written on several sheets and must have referred to the sheets which
the testator and the witnesses do not have to sign at the bottom. A different interpretation would
assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We
cannot attribute to the statute such an intention. As these signatures must be written by the testator
and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the
sheet guaranties its authenticity, another signature on its left margin would be unneccessary; and if
they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. We
cannot assume that the statute regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their signatures written on the bottom
do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the
upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any
sheet of the will has been removed. But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not necessary in the attestation
clause because this, as its name implies, appertains only to the witnesses and not to the testator since
the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all
the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the
second contains only the attestation clause and is signed also at the bottom by the three witnesses, it
is not necessary that both sheets be further signed on their margins by the testator and the
witnesses, or be paged.

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.
Therefore the laws on this subject should be interpreted in such a way as to attain these primordal
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 of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's last will, must be disregarded.

As another ground for this appeal, it is alleged the records do not show that the testarix knew the
dialect in which the will is written. But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is
enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which
this will is written.

AVERA vs. GARCIA G.R. No. 15566, September 14, 1921

FACTS: The probate of the will of one Esteban Garcia, which was instituted by Avera, was contested
by Garcia and Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and Cesar
Garcia. The proponent of the will introduced one of the three attesting witnesses who testified that
the will was executed with all necessary external formalities, and that the testator was at the time in
full possession of disposing faculties. Upon the latter point the witness was corroborated by the
person who wrote the will at the request of the testator. Two of the attesting witnesses were not
introduced, nor was their absence accounted for by the proponent of the will.

When the proponent rested, the attorney for the opposition introduced a single witness whose
testimony tended to show in a vague and indecisive manner that at the time the will was made the
testator was so debilitated as to be unable to comprehend what he was about.

The trial judge found that the testator at the time of the making of the will was of sound mind and
disposing memory and that the will had been properly executed. He accordingly admitted the will to
probate. Hence the appeal.

ISSUES: 1. Whether or not the will can be admitted to probate, where opposition is made, upon the
proof of a single attesting witness, without producing or accounting for the absence of the other two;

2. Whether or not the will in question is rendered invalid by reason of the fact that the
signature of the testator and of the three attesting witnesses are written on the right margin of each
page of the will instead of the left margin.
HELD: 1. Upon the first point, while it is undoubtedly true that an uncontested will may be proved by
the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
Phil., 291), this court declared after an elaborate examination of the American and English authorities
that when a contest is instituted, all of the attesting witnesses must be examined, if alive and within
reach of the process of the court.

In the present case no explanation was made at the trial as to why all three of the attesting witnesses
were not produced, but the probable reason is found in the fact that, although the petition for the
probate of this will had been pending from December 21, 1917, until the date set for the hearing,
which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is
probable that the attorney for the proponent, believing in good faith the probate would not be
contested, repaired to the court with only one of the three attesting witnesses at hand, and upon
finding that the will was contested, incautiously permitted the case to go to proof without asking for a
postponement of the trial in order that he might produce all the attesting witnesses.

Although this circumstance may explain why the three witnesses were not produced, it does not in
itself supply any basis for changing the rule expounded in the case above referred to; and were it not
for a fact now to be mentioned, this court would probably be compelled to reverse this case on the
ground that the execution of the will had not been proved by a sufficient number of attesting
witnesses.

It appears, however, that this point was not raised by the appellant in the lower court either upon the
submission of the cause for determination in that court or upon the occasion of the filing of the
motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be
raised for the first time in this court. We believe this point is well taken, and the first assignment of
error must be declared not be well taken. This exact question has been decided by the Supreme Court
of California adversely to the contention of the appellant, and we see no reason why the same rule of
practice should not be observed by us.

There are at least two reason why the appellate tribunals are disinclined to permit certain questions
to be raised for the first time in the second instance. In the first place it eliminates the judicial
criterion of the Court of First Instance upon the point there presented and makes the appellate court
in effect a court of first instance with reference to that point, unless the case is remanded for a new
trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the
administration of justice by concealing from the trial court and from their opponent the actual point
upon which reliance is placed, while they are engaged in other discussions more simulated than real.
These considerations are, we think, decisive.

2. The second point involved in this case is whether, under section 618 of the Code of Civil Procedure,
as amended by Act No. 2645, it is essential to the validity of a will in this jurisdiction that the names of
the testator and the instrumental witnesses should be written on the left margin of each page, as
required in said Act, and not upon the right margin, as in the will now before us; and upon this we are
of the opinion that the will in question is valid. It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin of each and every page; and it is
undeniable that the general doctrine is to the effect that all statutory requirements as to the
execution of wills must be fully complied with. The same doctrine is also deducible from cases
heretofore decided by this court.

Still some details at times creep into legislative enactments which are so trivial it would be absurd to
suppose that the Legislature could have attached any decisive importance to them. The provision to
the effect that the signatures of the testator and witnesses shall be written on the left margin of each
page — rather than on the right margin — seems to be this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no possible difference whether the
names appear on the left or no the right margin, provided they are on one or the other. In
Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared a
will void which was totally lacking in the signatures required to be written on its several pages; and in
the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained the
necessary signatures on the margin of each leaf ( folio), but not in the margin of each page containing
written matter.

The instrument now before us contains the necessary signatures on every page, and the only point of
deviation from the requirement of the statute is that these signatures appear in the right margin
instead of the left. By the mode of signing adopted every page and provision of the will is
authenticated and guarded from possible alteration in exactly the same degree that it would have
been protected by being signed in the left margin; and the resources of casuistry could be exhausted
without discovering the slightest difference between the consequences of affixing the signatures in
one margin or the other.

ICASIANO vs. ICASIANO 11 SCRA 422

FACTS: Celso Icasiano filed a petition for the allowance and admission to probate of the alleged will of
Josefa Villacorte, and for his appointment as executor thereof. Natividad and Enrique Icasiano, a
daughter and son of the testatrix, filed their opposition thereto. During the course of the trial, on 19
March 1959, Celso, started to present his evidence. But later, on 1 June 1959, he then filed an
amended and supplemental petition, alleging that the decedent had left a will executed in duplicate
and with all the legal requirements, and that he was submitting the duplicate to the court, which he
found only on 26 May 1959. Natividad and Enrique filed their opposition, but the will and its duplicate
was admitted to probate by the trial court. Hence, this appeal by the oppositors.

Oppositors-appellants (Natividad and Enrique) in turn introduced expert testimony to the effect that
the signatures of the testatrix in the duplicate are not genuine, nor were they written or affixed on
the same occasion as the original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and pressure because the testatrix
was deceived into adopting as her last will and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions thereof, whereby
proponents- appellees stand to profit from properties held by them as attorneys- in-fact of the
deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to
look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of
forfeiting their share in the portion of free disposal.
ISSUE: Whether or not the trial court was correct in admitting the will and its duplicate to probate
given the allegations of forgery of the testator’s signature, or that the will was executed under
circumstances constituting fraud and undue influence and pressure.

(Not raised by the appellants in the case but discussed by the Court) Is the failure of one of the
witnesses to sign a page of the will fatal to its validity?

HELD: The Supreme Court dismissed the appeal, holding that both the will and its duplicate are valid
in all respects.

On the allegations of forgery, fraud and undue influence:

The Court is satisfied that all the requisites for the validity of a will have been complied with. The
opinion of a handwriting expert trying to prove forgery of the testatrix’s signature failed to convince
the Court, not only because it is directly contradicted by another expert but principally because of the
paucity of the standards used by him (only three other signatures), considering the advanced age of
the testatrix, the evident variability of her signature, and the effect of writing fatigue.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering that standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, the testimony of the
oppositor’s expert is insufficient to overcome that of the notary and the two instrumental witnesses
as to the will’s execution, which were presented by Celso during the trial.

Nor is there adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither. Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The testamentary disposition that the
heirs should not inquire into other property and that they should respect the distribution made in the
will, under penalty of forfeiture of their shares in the free part, do not suffice to prove fraud or undue
influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by
ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of
non- heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on
another occasion. It is also well to note that fraud and undue influence are mutually repugnant and
exclude each other; their joining as grounds for opposing probate shows absence of definite evidence
against the validity of the will.

On the failure of a witness to sign a page in the original, but signed all pages in the duplicate:

The records show that the original of the will consists of five pages, and while signed at the end and in
every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad,
on page 3 thereof; but the duplicate copy attached to the amended and supplemental petition is
signed by the testatrix and her three attesting witnesses in each and every page.
Witness Atty. Natividad, who testified on his failure to sign page 3 of the original, admits that he may
have lifted two pages instead of one when he signed the same, but affirmed that page 3 was signed in
his presence.

The failure Atty. Natividad to sign page three (3) was entirely through pure oversight is shown by his
own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in
every page. The text of the attestation clause and the acknowledgment before the Notary Public
likewise evidence that no one was aware of the defect at the time. Therefore, Atty. Natividad’s failure
to sign page 3 of the original through mere inadvertence does not affect the will’s validity.

Impossibility of substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the
notary public before whom the testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control, where the purpose of the
law to guarantee the identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attests to the full observance
of the statutory requisites.

This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a
will, the failure to mark the first page either by letters or numbers is not a fatal defect (Lopez vs.
Liboro, 81 Phil. 429). These precedents exemplify the Court’s policy to require satisfaction of the
legal requirements in order to guard against fraud and bad faith but without undue or unnecessary
curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate
is not entitled to probate. Since they opposed probate of the original because it lacked one signature
in its third page, it is easily discerned that oppositors-appellants run here into a dilemma: if the
original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate,
and the same is probatable. If the original is valid and can be probated, then the objection to the
signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate
serves to prove that the omission of one signature in the third page of the original testament was
inadvertent and not intentional.

NERA vs. RIMANDO 18 Phil. 450, 27 February 1911

FACTS: At the time the will was executed, in a large room connecting with a smaller room by a
doorway where a curtain hangs across, one of the witnesses was in the outside room when the other
witnesses were attaching their signatures to the instrument.
The trial court did not consider the determination of the issue as to the position of the witness as of
vital importance in determining the case. It agreed with the ruling in the case of Jaboneta v. Gustillo
that the alleged fact being that one of the subscribing witnesses was in the outer room while the
signing occurred in the inner room, would not be sufficient to invalidate the execution of the will.

ISSUE: What is the true test of the testator’s or the witness’ presence in the signing of a will?

HELD: The Supreme Court emphasized that the true test of presence of the testator and the witnesses
in the execution of a will is not whether they actually saw each other sign, but whether they might
have seen each other sign, had they chosen to do so, considering their mental and physical condition
and position with relation to each other at the moment of inscription of each signature.

The position of the parties with relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they choose to do so.

TESTATE ESTATE OF CAGRO vs. CAGRO G.R. L-5826

FACTS: The case is an appeal interposed by the oppositors from a decision of the CFI of Samar which
admitted to probate a will allegedly executed by Vicente Cagro who died in Pambujan, Samar on Feb.
14, 1949. The appellants insisted that the will is defective because the attestation was not signed by
the witnesses at the bottom although the page containing the same was signed by the witnesses on
the left hand margin. Petitioner contended that the signatures of the 3 witnesses on the left hand
margin conform substantially to law and may be deemed as their signatures to the attestation clause.

ISSUE: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the facts attending the execution
of the will. It is required by law to be made by the attesting witnesses and it must necessarily bear
their signatures.

An unsigned attestation clause cannot be considered as an act of the witnesses since the omission of
their signatures at the bottom negatives their participation.

Moreover, the signatures affixed on the let hand margin is not substantial conformance to the law.
The said signatures were merely in conformance with the requirement that the will must be signed on
the left-hand margin of all its pages. If the attestation clause is unsigned by the 3 witnesses at the
bottom, it would be easier to add clauses to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses. The probate of the will is denied.

AZUELA vs. CA 487 SCRA 119, 12 April 2006


FACTS: Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo.
However, this was opposed by Geralda Castillo, who was the attorney-in-fact of “the 12 legitimate
heirs” of the decedent. According to her, the will was forged, and imbued with several fatal defects.
Particularly, the issue relevant in this subject is that the will was not properly acknowledged. The
notary public, Petronio Y. Bautista, only wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10
(sic), 1981 dito sa Lungsod ng Maynila.”

ISSUE: Whether or not the will is fatally defective as it was not properly acknowledged before a
notary public by the testator and the witnesses as required by Article 806 of the Civil Code.

HELD: Yes, the will is fatally defective. By no manner of contemplation can those words be construed
as an acknowledgment.

An acknowledgement is the act of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby
the signore actually declares to the notary that the executor of a document has attested to the notary
that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her,
the document was subscribed and sworn to by the executor.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be “acknowledged,” and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator.

CANEDA vs. CA 222 SCRA 781

FACTS: On December 5, 1978, Mateo Caballero, a widower without any children and already in the
twilight years of his life, executed a last will and testament at his residence before 3 witnesses. He
was assisted by his lawyer, Atty. Emilio Lumontad. In the will, it was declared that the testator was
leaving by way of legacies and devises his real and personal properties to several people all of whom
do not appear to be related to the testator.

4 months later, Mateo Caballero himself filed a case seeking the probate of his last will and
testament, but numerous postponements pushed back the initial hearing of the probate court
regarding the will. On May 29, 1980, the testator passed away before his petition could finally be
heard by the probate court. Thereafter one of the legatees, Benoni Cabrera, sought
his appointment as special administrator of the testator’s estate. Thereafter, the petitioners, claiming
to be nephews and nieces of the testator, instituted a second petition for intestate proceedings. They
also opposed the probate of the testator’s will and the appointment of a special administrator for his
estate.

Benoni Cabrera died and was replaced by William Cabrera as special administrator and gave an order
that the testate proceedings for the probate of the will had to be heard and resolved first. In the
course of the proceedings, petitioners opposed to the allowance of the testator’s will on the ground
that on the alleged date of its execution, the testator was already in poor state of health such that he
could not have possibly executed the same. Also the genuineness of the signature of the testator is in
doubt.

On the other hand, one of the attesting witnesses and the notary public testified that the testator
executed the will in question in their presence while he was of sound and disposing mind and that the
testator was in good health and was not unduly influenced in any way in the execution of his will.

Probate court then rendered a decision declaring the will in question as the last will and testament of
the late Mateo Caballero. CA affirmed the probate court’s decision stating that it substantially
complies with Article 805. Hence this appeal.

ISSUE: Whether or not the attestation clause in the will of the testator is fatally defective or can be
cured under the art. 809.

HELD: No. It does not comply with the provisions of the law.

Ordinary or attested wills are governed by Arts. 804 to 809. The will must be acknowledged before a
notary public by the testator and the attesting witnesses. The attestation clause need not be written
in a language known to the testator or even to the attesting witnesses.

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. The attestation clause, therefore, provides strong legal guaranties
for the due execution of a will and to insure the authenticity thereof.

It is contended by petitioners that the attestation clause in the will failed to specifically state the fact
that the attesting witnesses witnessed the testator sign the will and all its pages in their presence and
that they, the witnesses, likewise signed the will and every page thereof in the presence of the
testator and of each other. And the Court agrees. The attestation clause 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.
The phrase, “and he has signed the same and every page thereof, on the space provided for his
signature and on the left hand margin,” obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words” as his last will and testament.” 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. That 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
probated.

Also, Art. 809 does not apply to the present case because 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. The defect in this case is not only with respect to the form or the language of
the attestation clause. The defects must be remedied by intrinsic evidence supplied by the will itself
which is clearly lacking in this case.

Therefore, the probate of the will is set aside and the case for the intestate proceedings shall be
revived. Article 809 cannot be used to cure the defects of the will when it does not pertain to the
form or language of the will. This is because there is not substantial compliance with Article 805.

LOPEZ vs. LOPEZ G.R. No. 189984, November 12, 2012

Doctrine:

The law is clear that the attestation must state the number of pages used upon which the will is
written. The purpose of the law is to safeguard against possible interpolation or omission of one or
some of its pages and prevent any increase or decrease in the pages.

FACTS: Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez (Lopez), and their four
legitimate children, namely, petitioner Richard, Diana, Marybeth and Victoria as compulsory heirs.
Before Enrique’s death, he executed a Last Will and Testament and constituted Richard as his
executor and administrator.

Richard filed a petition for the probate of his father's Last Will and Testament before the RTC with
prayer for the issuance of letters testamentary in his favor. Marybeth opposed the petition
contending that the purported last will and testament was not executed and attested as required by
law, and that it was procured by undue and improper pressure and influence on the part of Richard.
Victoria also adopted the said opposition.

After submitting proofs of compliance with jurisdictional requirements, Richard presented the
attesting witnesses, namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo
(Manalo); and the notary public who notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco). The
instrumental witnesses testified that after the late Enrique read and signed the will on each and every
page, they also read and signed the same in the latter's presence and of one another. Photographs of
the incident were taken and presented during trial. Manalo further testified that she was the one who
prepared the drafts and revisions from Enrique before the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. The latter
consulted him in the preparation of the subject will and furnished him the list of his properties for
distribution among his children. He prepared the will in accordance with Enrique's instruction and
that before the latter and the attesting witnesses signed it in the presence of one another, he
translated the will, which was written in English to Filipino and added that Enrique was in good health
and of sound mind at that time.

RTC: disallowed the probate of the will for failure to comply with Article 805 of the Civil Code which
requires a statement in the attestation clause of the number of pages used upon which the will is
written. It held that while Article 809 of the same Code requires mere substantial compliance of the
form laid down in Article 805 thereof, the rule only applies if the number of pages is reflected
somewhere else in the will with no evidence aliunde or extrinsic evidence required. While the
acknowledgment portion stated that the will consists of 7 pages including the page on which the
ratification and acknowledgment are written, the RTC observed that it has 8 pages including the
acknowledgment portion. As such, it disallowed the will for not having been executed and attested in
accordance with law.

CA: found no valid reason to deviate from the findings of the RTC that the failure to state the number
of pages of the will in the attestation clause was fatal. It noted that while Article 809 of the Civil Code
sanctions mere substantial compliance with the formal requirements set forth in Article 805 thereof,
there was a total omission of such fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages including the page on which the ratification
and acknowledgment are written," the will had actually 8 pages including the acknowledgment
portion thus, necessitating the presentation of evidence aliunde to explain the discrepancy.

Hence, the instant petition.

ISSUE: Whether or not the CA erred in affirming the RTC decision to disallow the probate of will.

HELD: The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil
Code provide:

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805.

While Article 809 allows substantial compliance for defects in the form of the attestation clause,
Richard likewise failed in this respect. The statement in the Acknowledgment portion of the subject
last will and testament that it "consists of 7 pages including the page on which the ratification and
acknowledgment are written" cannot be deemed substantial compliance. The will actually consists of
8 pages including its acknowledgment which discrepancy cannot be explained by mere examination of
the will itself but through the presentation of evidence aliunde.

The rule must be limited to disregarding those defects that can be supplied by an examination of the
will itself: whether all the pages are consecutively numbered; whether the signatures appear in each
and every page; whether the subscribing witnesses are three or the will was notarized. All these are
facts that the will itself can reveal, and defects or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.

Hence, the CA properly sustained the disallowance of the will.