NERA vs.

RIMANDO February 27, 1911 FACTS: There was a dispute as to the circumstances attending the signing of the will on the day of its execution: 1. whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures 2. whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument HELD: The SC admitted the first one and the will was admitted for probate. nd If the 2 circumstance had happened, had the subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature." The question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. CRUZ vs. VILLASOR November 26, 1973 HELD: The last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow, to own as genuine, to assent, to admit-, and "before" means in front or preceding in space or ahead of. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation. That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For then, he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. It would place him in an inconsistent position. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements would be thwarted. CRUZ vs. VILLASOR November 26, 1973 FACTS: Of the 3 instrumental witnesses thereto, Atty. Teves, Jr. is at the same time the Notary Public before whom rd the will was supposed to have been acknowledged. As the 3 witness is the notary public himself, petitioner argues that the result is that only 2 witnesses appeared before the notary public to acknowledge the will. HELD: The last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. If the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. ARTICLE 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n) ARTICLE 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)

ARTICLE 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n) JAVELLANA vs. LEDESMA 97 PHIL 258 FACTS: The opposition to the probate of the will of Apolinaria is founded on 3 specific issues. One of the issues is whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses HELD: Whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses does not affect the validity of the codicil. The new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. While testator and witnesses must sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Article 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in this case. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence, their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption. GARCIA vs. VASQUEZ 32 SCRA 490 FACTS: The oppositors challenged the correctness of the admission of the will for probate on the ground that the testatrix eyesight was so poor and defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses. The ophthalmologist testified that the vision of the testatrix remained mainly for viewing distant objects and not for reading print. HELD: Against the background of defective eyesight of the alleged testatrix, the appearance of the 1960 will, acquires striking significance. Upon, its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, so much so that the words had to be written very close to the top, bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol "&," apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doa Gliceria. The typographical errors remained uncorrected thereby indicating that the execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of one's worldly possessions should be embodied in an informal and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so. Where Article 808 is not complied with, the said will suffers from infirmity that affects its due execution. ARTICLE 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) ALVARADO vs. GAVIOLA September 14, 1993 HELD: Substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. The testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. ALVARADO vs. GAVIOLA September 14, 1993

FACTS: The testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the 8-paged document, read the same aloud in the presence of the testator, the 3 instrumental witnesses and the notary public. The latter 4 followed the reading with their own respective copies previously furnished them. Said will was admitted to probate. Later on, a codicil was executed, and by that time, the testator was already suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies. HELD: Article 808 not only applies to blind testators, but also to those who, for one reason or another, are incapable of reading their wills. Hence, the will should have been read by the notary public and an instrumental witness. However, the spirit behind the law was served though the letter was not. In this case, there was substantial compliance. Substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. In this case, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place.

Aluad vs. aluad

Caneda vs. CA May 28, 1993 HELD: What is clearly lacking is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. The absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will. Such defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule. Under Article 809, the defects or imperfections must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. The defect is not only in the form or the language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. The rule on substantial compliance in Article 809 cannot be invoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually complied with in the execution of the will. In other words, the defects must be remedied by intrinsic evidence supplied by the will itself. ROXAS vs. DE JESUS, JR. January 28, 1985 FACTS: The will is dated "FEB./61" and states: "This is my will which I want to be respected although it is not written by a lawyer. . . " HELD: The liberal construction of the will should prevail. 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.

LABRADOR vs. CA April 5, 1990 FACTS: The 1 paragraph of the 2 page of the holographic will provides: "And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and 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." HELD: 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. These requirements are present in the subject will. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the succeeding words of the paragraph. The will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will. ARTICLE 811. 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. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (691a)
st nd

Gan vs. yap

RODELAS vs. ARANZA December 7, 1982 FACTS: The petition was opposed on the ground that the alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect. HELD: A photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. AZAOLA vs. SINGSON August 5, 1960 FACTS: The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present 3 witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix." HELD: Since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, Article 811 can not be interpreted as to require the compulsory presentation of 3 witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law, the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. The 3 witnesses must "know the handwriting and signature of the testator" and can declare "that the will and the signature are in the handwriting of the testator". There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. CODOY vs. CALUGAY August 12, 1999 FACTS: It is contended that the requirement under Article 811 which requires at least 3 witnesses explicitly declaring that the signature in the will is the genuine signature of the testator for the probate of a contested holographic will is permissive.

HELD: Article 811 of the Civil Code is mandatory. The word "shall" denotes 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." Comparing the signature in the holographic will and the signatures in several documents such as the application letter for pasture permit and a letter, the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. The SC cannot be certain that the holographic will was in the handwriting by the deceased. Maam: Azaola and Codoy are apparently in conflict. Azaola case provides the 3 witnesses not imperative because in the first place no witnesses are required in the execution of the holographic will. On the other hand, Codoy case states that it is mandatory because the word used in Article 811 is shall. It means imperative. If the will is contested, there is a strong possibility that the witness presented might be perjured. CODOY case prevails because it was decided later by the SC. But, if you are presented with facts similar to the case of Azaola vs. Singson in taking the bar exam, there might be a possibility that the examiner wanted you to answer Azaola vs. Singson. To be safe, you can also cite the case of Codoy. AJERO vs. CA September 15, 1994 FACTS: The petition for probate of the will was opposed on the ground that it contained alterations and corrections which were not duly signed by decedent. HELD: Article 813 of the New Civil Code 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 unauthenticated 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. KALAW vs. RELOVA January 15, 1990 FACTS: The probate of the will was opposed on the ground that it 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. HELD: Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic will have 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. 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. DELA CERNA vs. POTOT December 23, 1964 FACTS: Spouses Bernabe de la Cerna and Gervasia Rebaca executed a joint last will and testament whereby they willed that the 2 parcels of land acquired they during their marriage be given to Manuela, their niece. The will of Bernabe was admitted to probate by final order. The will of Gervasia was declared null and void by the CFI for being executed contrary to the prohibition of joint wills. HELD: The final decree of the probate of the will Bernabe has conclusive effect. The error committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world.

But the CA should have taken into account that the probate decree could only affect the share of the deceased husband, Bernabe de la Cerna. It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. ARTICLE 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a) SUBSECTION 4 Witnesses to Wills ARTICLE 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code. (n) ARTICLE 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. (n)