FACTS:

ARTICLE 805
ABANGAN vs. ABANGAN
FACTS:
On September 19, 1917, CFI of Cebu admitted to probate Ana Abangan's will
executed July, 1916. From this decision the opponents appealed.
The will consists of 2 sheets. The first contains all 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. These
omissions, according to appellants' contention, are defects whereby the probate
of the will should have been denied.
ISSUE: WON the will was duly admitted to probate.
HELD:
YES. In requiring that each and every sheet of the will be signed on the left
margin by the testator and three witnesses in the presence of each other, Act
No. 2645 evidently has for its object the avoidance of substitution of any of said
sheets which may change the disposition of the testatrix. But when these
dispositions are wholly written on only one sheet (as in the instant case)
signed at the bottom by the testator and three witnesses, their signatures on the
left margin of said sheet are not anymore necessary as such will be
purposeless.
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.
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.
ICASIANO vs. ICASIANO

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: Was the trial court correct in admitting the will and its duplicate to
probate given the allegations of forgery of the testators 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 and in Sirs
book) 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 wills 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.
Natividads failure to sign page 3 of the original through mere inadvertence does
not affect the wills 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.

BARUT vs. CABACUNGAN

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: Was the dissimilarity in handwriting sufficient to deny probate of the will?

Petitioners 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.

HELD:
BALONAN vs. ABELLANA
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
testators 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 testators, so that the testators name nowhere appeared in
the will, and were thus wills not duly executed.
GARCIA vs. LACUESTA
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.

NATURE:
Appeal from a decision of the Court of First Instance of Zamboanga City
admitting to probate the will of one Anacleta Abellana.
FACTS:
The last Will and Testament, which is sought to be probated, was written in the
Spanish language and consists of two (2) typewritten pages double spaced. The
first page was signed by Juan Bello and under his name appears typewritten
"Por la testadora Anacleta Abellana, residence Certificate A-1167629,
Enero 20, 1951, Ciudad de Zamboanga'(which I think means, for the testatrix
Anacleta Abellana, residence certificate A-1167629, January 20, 1951, City of
Zamboanga)
On the second page appears the signature of three (3) instrumental witnesses
Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which
appears the signature of T. de los Santos and below his signature is his official
designation as the notary public who notarized the said testament. On the first
page on the left margin of the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the last page of said last
Will and Testament, also appears the signature of the three (3) instrumental
witnesses and on that second page on the left margin appears the signature of
Juan Bello under whose name appears handwritten the following phrase, "Por la
Testadora Anacleta Abellana'. The will is duly acknowledged before Notary
Public Attorney Timoteo de los Santos.
ISSUE: WON the signature of Dr. Juan Abello above the typewritten statement
"Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with
the requirements of law prescribing the manner in which a will shall be executed
HELD:
NO. The deceased Anacleta Abellana may not be admitted to probate.

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.

Anacleta Abellanas name does not appear written under the will by said
Abellana herself, or by Dr. Juan Abello.

HELD:
The attestation clause is fatally defective for failing to state that Mercado
directed Javier to write the testators name under his express direction.

Article 805 of the Civil Code, as well as Section 618 of the Code of Civil
Procedure (Act No. 190 probably old) require that the testator himself sign the

will, or if he cannot do so, the testators name must be written by some other
person in his presence and by his express direction.
Ex Parte Pedro Arcenas, et al., Phil, 700: If the testator will not be able to sign
the will, the attesting witnesses should sign the will at the testators request, the
notary certifying thereto, then the testators name should be written by the
person signing in his stead in the place where he could have signed if he knew
how or was able to do so, and do this in the testators presence and by the
testators express direction. It should be signed in the following manner: John
Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe,
Richard Doe." All this must be written by the witness signing at the request of the
testator.
Barut vs. Cabacungan, 21 Phil, 461: is should clearly appear that the name of
the testatrix was signed at her express direction; it is unimportant whether the
person who writes the name of the testatrix signs his own or not.
NERA vs. RIMANDO
FACTS:
The only question raised by the evidence in this case as to the due execution of
the instrument propounded as a will in the court below, is 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; or 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:
Citing Jaboneta v. Gustilo, the court held 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 been 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.
But it is especially to be noted that 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.
The question is whether the testator and the subscribing witnesses to an alleged
will signed 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. To extend
the doctrine further would open the door to the possibility of all manner of fraud,
substitution, and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the execution of a
will.
GONZALES vs. CA
FACTS:
Herein respondent filed a petition with CFI Rizal for the probate of a will alleged
to have been executed by the deceased Isabel Gabriel and designating
Santiago as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a
widow and without issue in the municipality of Navotas, province of Rizal her
place of residence, on June 7, 1961 at the age of eighty-five (85), having been
born in 1876. It is likewise not controverted that herein private respondent
Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the
deceased, and that private respondent, with her husband and children, lived with
the deceased at the latters residence prior and up to the time of her death.
The will itself provides that the testatrix desired to be buried in the Catholic
Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic
Church, all expenses to be paid from her estate; that all her obligations, if any,
be paid; that legacies in specified amounts be given to her sister, Praxides
Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial,
Numancia, Verena all surnamed Santiago. To herein private respondent
Lutgarda Santiago, who was described in the will by the testatrix as "aking
mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng
isang tunay na anak" and named as universal heir and executor, were
bequeathed all properties and estate, real or personal already acquired, or to be
acquired, in her testatrix name, after satisfying the expenses, debts and legacies
as aforementioned.
The petition was opposed by herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported will the decedent
lacked testamentary capacity due to old age and sickness; and in the second
alternative

4. That the purported will was procured through undue and improper pressure
and influence on the part of the principal beneficiary, and/or of some other
person for her benefit.
CFI found for Gonzales grounds 3 and 4 and disallowed the probate.
From this judgment of disallowance, Santiago appealed to respondent Court,
hence, the only issue decided on appeal was whether or not the will in question
was executed and attested as required by law. CA, upon consideration of the
evidence adduced by both parties, rendered the decision now under review,
holding that the will in question was signed and executed by the deceased
Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the
document in the presence of the deceased and of each other as required by law,
hence allowed probate. Petitioners MFR denied.
Oppositor Gonzales went to SC contending that CA abused its discretion and/or
acted without or in excess of its jurisdiction in reversing the findings of fact and
conclusions of the trial court. SC, after deliberating on the petition but without
giving due course resolved to require the respondents to comment thereon.
Upon consideration of the allegations, the issues raised and the arguments
adduced in the petition, as well as the Comment of private respondent thereon,
SC denied the petition, the question raised being factual and for insufficient
showing that the findings of fact by respondent Court were unsupported by
substantial evidence.
Gonzales filed MFR -still raising factual issues. SC gave due course. SC
discussed non-disturbance of CAs factual findings but still explained on the
merits.
ISSUE: WON credible witnesses meant that before an alleged last will and
testament may be admitted to probate, there must be evidence on record that
the witness has a good standing in his community, or that he is honest and
upright, or reputed to be trustworthy and reliable (as maintained by petitioner)

HELD: NO
Ratio Instrumental witnesses in Order to be competent must be shown to have
the qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be credible, that is
worthy of belief and entitled to credence, it is not mandatory that evidence be
first established on record that the witnesses have a good standing in the
community or that they are honest and upright or reputed to be trustworthy and
reliable, for a person is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must be competent and
their testimonies must be credible before the court allows the probate of the will

they have attested.

Reasoning Petitioner contends that the term "credible" is not synonymous with
"competent" for a witness may be competent under Article 820 and 821 of the
Civil Code and still not be credible as required by Article 805 of the same Code.
It is further urged that the term "credible" as used in the Civil Code should
receive the same settled and well- known meaning it has under the
Naturalization Law, the latter being a kindred legislation with the Civil Code
provisions on wills with respect to the qualifications of witnesses.
Under the law, there is no mandatory requirement that the witness testify initially
or at any time during the trial as to his good standing in the community, his
reputation for trustworthiness and reliableness, his honesty and uprightness in
order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18 years or
more) is shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is
able to read and write to the satisfaction of the Court, and that he has none of
the disqualifications under Article 821 of the Civil Code.
Also without merit is petitioner's contention that the term "credible" as used in
the Civil Code should be given the same meaning it has under the Naturalization
Law where the law is mandatory that the petition for naturalization must be
supported by two character witnesses who must prove their good standing in the
community, reputation for trustworthiness and reliableness, their honesty and
uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the
petitioner to be a resident of the Philippines for the period of time required by the
Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen
of the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law. In probate proceedings, the instrumental witnesses are not
character witnesses for they merely attest the execution of a will or testament
and affirm the formalities attendant to said execution.
UNSON vs. ABELLA
FACTS:
Doa Josefa Zalamea y Abella executed her last will and testament with an
attached inventory of her properties in the presence of three witnesses, who
signed with her all the pages of said documents.
When the testatrix died, the executor appointed in the will, Pedro Unson, filed an
application for the probate of the will and the issuance of the proper letters of
administration in his favor.

To said application an opposition was presented by Antonio Abella, Ignacia

Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will of the
deceased Zalamea was not executed in conformity with the provinces of the law,
inasmuch as it was not paged correlatively in letters, nor was there any
attestation clause in it, nor was it signed by the testatrix and the witnesses in the
presence of each other.
The judge a quo overruled the opposition of the contestants, and ordered the
probate of the will and the inventory holding that both documents contained the
true and last will of the deceased Josefa Zalamea.
ISSUES:
1. WON the will of the deceased Josefa Zalamea, was executed with all the
solemnities required by the law.
2. WON the court below erred in admitting the will to probate notwithstanding the
omission of the proponent to produce one of the attesting witnesses.
3. WON the court below erred in admitting the inventory to probate despite the
fact that this exhibit has no attestation clause in it, and its paging is made in
Arabic numerals and not in letters.
HELD:
1. YES. The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly
testify that together with the other witness to the will, Pedro de Jesus, they did
sign each and every page of the will and of the inventory in the presence of each
other and of the testatrix, as the latter did likewise sign all the pages of the will
and of the inventory in their presence.
Appellants intimate that one of the pages of the will was not signed by the
testatrix, nor by the witnesses on the day of the execution of the will basing their
contention on the testimony of Aurelio Palileo, who says that on one occasion
Gonzalo Abaya told him that one of the pages of the will had not been signed by
the witnesses, nor by the testatrix. Palileo's testimony is entirely contradicted by
Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well.
Palileo's testimony cannot prevail over that of the attesting witnesses, Gonzalo
Avaya and Eugenio Zalamea.
2. NO. At the trial of this case the attorneys for the proponent stated to the court
that they had necessarily to omit the testimony of Pedro de Jesus, one of the
persons who appear to have witnessed the execution of the will, for there were
reasonable grounds to believe that said witness was openly hostile to the
proponent, inasmuch as since the announcement of the trial of the petition for
the probate of the will, said witness has been in frequent communication with the
contestants and their attorney, and has refused to hold any conference with the
attorneys for the proponent.
The trial court found that the evidence introduced by the proponent, consisting of
the testimony of the two attesting witnesses and the other witness who was
present at the execution, and had charge of the preparation of the will and the
inventory was sufficient.
Cabang vs. Delfinado: the general rule is that, where opposition is made to the
probate of a will, the attesting witnesses must be produced. But there are
exceptions to this rule, for instance, 1when a witness is dead, or 2cannot be
served with process of the court, or 3his reputation for truth has been questioned
or 4he appears hostile to the cause of the proponent. In such cases, the will may

be admitted to probate without the testimony of said witness, if, upon the other
proofs adduced in the case, the court is satisfied that the will has been duly
executed.
But supposing that said witness, when cited, had testified adversely to the
application, this would not by itself have change the result reached by the court
a quo, for section 632 of the Code of Civil Procedure provides that a will can be
admitted to probate, notwithstanding that one or more witnesses do not
remember having attested it, provided the court is satisfied upon the evidence
adduced that the will has been executed and signed in the manner prescribed
by the law.
3. NO. In the third paragraph of the will, reference is made to the inventory, and
at the bottom of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page
containing the signatures and the attestation of the witnesses; I have likewise
signed the inventory attached to this will composed of ten folios in the presence
of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this
municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have
affixed our signatures, as well as the inventory of the properties of Doa Josefa
Zalamea y Abella, was read to Doa Josefa Zalamea y Abella, and the latter
affixed her name to the last, and each and every page of this will and inventory
composed of ten folios in our presence; and she declared this to be her last will
and testament and at her request we have affixed hereunto our respective
signatures in her presence and in the presence of each other as witnesses to
the will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral part of
it, the Court found that the foregoing attestation clause is in compliance with
section 1 of Act No. 2645, which requires this solemnity for the validity of a will,
and makes unnecessary any other attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, the Court
adhered to the doctrine announced in the case of Aldaba vs. Roque where the
will was assailed on the ground that its folios were paged with the letters A, B, C,
etc., instead of with the letters "one," two," "three," etc. It was held that this way
of numbering the pages of a will is in compliance with the spirit of the law,
inasmuch as either one of these methods indicates the correlation of the pages
and serves to prevent the abstraction of any of them.
In the course of the decision, the Court said: "It might be said that the object of
the law in requiring that the paging be made in letters is to make falsification
more difficult, but it should be noted that since all the pages of the testament are
signed at the margin by the testatrix and the witnesses, the difficulty of forging
the signatures in either case remains the same. In other words the more or less

degree of facility to imitate the writing of the letters A, B, C, etc., does not make
for the easiness to forge the signatures.
Abangan vs. Abangan: 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
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 of the right
to make a will. So when an interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless, and frustrative of the
testator's last will, must be disregarded.
In that case the testament was written on one page, and the attestation clause
on another. Neither one of these pages was numbered in any way, and it was
held: "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."
This means that, according to the particular case, the omission of paging does
not necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on
the upper part of the sheet, but if the paging should be placed in the lower part,
would the testament be void for this sole reason? The Court believes not. The
law also provides that the testator and the witnesses must sign the left margin of
each of the sheets of the testament; but if they should sign on the right margin,
would this fact also annul the testament? Evidently not.
Avera vs. Garcia and Rodriguez: "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."
"Still some details at time creep into legislative enactments which are so trivial
that 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 margin seems to be of 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 on the right margin, provided
they are on one or the other."
The Court said that it does not desire to intimate that the numbering in letters is
a requisite of no importance. But since its principal object is to give the
correlation of the pages, it held that his object may be attained by writing one,
two, three, etc., as well as by writing A, B, C, etc. It saw no reason why the same
rule should not be applied where the paging is in Arabic numerals, instead of in
letters, as in the inventory in question.

TESTACY OF SIXTO LOPEZ, JOSE S. LOPEZ vs. AGUSTIN LIBORO

FACTS:
The will of Don Sixto Lopez was submitted for probate by Jose Lopez and
Clemencia Lopez, the Dons sister. The probate was opposed by Agustin Liboro
who contended that the will is not valid due to the following grounds:
(1) that the deceased never executed the alleged will; 2) that his signature
appearing in said will was a forgery; (3) that at the time of the execution of the
will, he was wanting in testamentary as well as mental capacity due to advanced
age; (4) that, if he did ever execute said will, it was not executed and attested as
required by law, and one of the alleged instrumental witnesses was
incapacitated to act as such; and it was procured by duress, influence of fear
and threats and undue and improper pressure and influence on the part of the
beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez,
and the herein proponent, Jose S. Lopez; and (5) that the signature of the
testator was procured by fraud or trick.
Liboro pointed out that the first page of the will, which was contained in two
pages in all, was not numbered in letters or Arabic numbers as what should
have been required by law. It was also argued that the testator should have
signed the will with his signature and not only with his thumb print if he indeed
had the capacity to execute the will. Furthermore, the will did not expressly state
that the language used is a language which the Don understood; in this case, it
was in Spanish.
ISSUE: Whether or not there was substantial compliance to qualify the will for
probate.
RULING:
There has been substantial compliance even in the presence of the averred
irregularities.
The purpose of the law in prescribing the paging of wills is guard against fraud,
and to afford means of preventing the substitution or of defecting the loss of any
of its pages. In the present case, the omission to put a page number on the first
sheet, if that be necessary, is supplied by other forms of identification more
trustworthy than the conventional numerical words or characters. The
unnumbered page is clearly identified as the first page by the internal sense of
its contents considered in relation to the contents of the second page. By their
meaning and coherence, the first and second lines on the second page are
undeniably a continuation of the last sentence of the testament, before the
attestation clause, which starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains the caption "TESTAMENTO," the
invocation of the Almighty, and a recital that the testator was in full use of his
testamentary faculty, all of which, in the logical order of sequence, precede

the direction for the disposition of the marker's property. Again, as page two
contains only the two lines above mentioned, the attestation clause, the mark of
the testator and the signatures of the witnesses, the other sheet can not by any
possibility be taken for other than page one.
The testator affixed his thumbmark to the instrument instead of signing his
name. The reason for this was that the testator was suffering from "partial
paralysis." While another in testator's place might have directed someone else
to sign for him, as appellant contends should have been done, there is nothing
curious or suspicious in the fact that the testator chose the use of mark as the
means of authenticating his will. It was a matter of taste or preference. Both
ways are good. A statute requiring a will to be "signed" is satisfied if the
signature is made by the testator's mark.
As for the question on the language of the will, there is no statutory requirement
that such knowledge be expressly stated in the will itself. It is a matter that may
be established by proof aliunde.
The will may therefore be submitted for probate.
TABOADA vs. ROSAL
NATURE:
Petition for review of the orders issued by the CFI of Southern Leyte
FACTS:
Taboada filed a petition for probate, and attached therewith the alleged last will
and testament of Dorotea Perez written in the Cebuano-Visayan dialect
The will consists of two pages: the first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3) instrumental witnesses,
and the second page contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three (3) attesting witnesses
and at the left hand margin by the testatrix.
The petitioner submitted his evidence and presented Vicente Timkang, one of
the subscribing witnesses to the will, who testified on its genuineness and due
execution.
TC, thru then Presiding Judge Pamatian, denied the probate of the will of
Dorotea Perez for want of a formality in its execution, and petitioner was also
required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.

The petitioner filed an MFR, and subsequently, a motion for the appointment of
special administrator.
The said motion was still pending resolution when respondent Judge Rosal
assumed the position of presiding judge, and denied said motion, along with the
motion for the appointment of special administrator
The petitioner filed the present petition.
ISSUE: WON the probate of the will should be denied for want of a formality in
its execution
HELD
NO.
While perfection in the drafting of a will may be desirable, unsubstantial
departure from the usual forms should be ignored, especially where the
authenticity of the will is not assailed.
The respondent Judge interprets Art 805 of the CC to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the
"end" but that the three subscribing witnesses must also sign at the same
placeat the endnot on the left hand margin.
Under Article 805 of the Civil Code, the will must be subscribed or signed at its
end by the testator himself or by the testator's name written by another 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.
Attestation consists in witnessing the testator's execution of the will in order to
see and take note mentally that those things which the statute requires for the
execution of a will are done, and that the signature of the testator exists as a
fact. Subscription is the signing of the witnesses' names upon the same paper
The law is to be liberally construed, the underlying and fundamental objective
being 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 sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise
of undue and improper pressure and influence upon the testator.
The objects of attestation and of subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary dispositions, especially so when
the will was properly identified by subscribing witness Vicente Timkang.
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have

been a fatal defect were it not for the fact that, in this case, it is discernible from
the entire will that it is really and actually composed of only two pages duly
signed by the testatrix and her instrumental witnesses.
CAGRO vs. CAGRO

as witnesses. The contestant, Matea Ledesma, sister and nearest surviving

relative of said deceased, appealed from the decision, insisting that the said
exhibits were not executed in conformity with law. Ledesma is questioning the
validity of the codicil contending that the fact that the notary did not sign the
instrument in the presence of the testator and the witness made the codicil was
not executed in conformity with the law

FACTS:
ISSUE: W/N the codicil was validly executed.
Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent allegedly
made a will prior to his death, the will was probated before the CFI of Samar.
However, the oppositors-appellant objected the probate proceeding alleging that
the will is fatally defective because its attestation clause is not signed by the
attesting witnesses. It is undisputed that the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin.
ISSUE: W/N the will may be probated even if the signatures of the witnesses do
not appear at the bottom of the attestation clause, and instead, they were placed
on the left-hand margin of the page containing the same.

HELD:
The instrumental witnesses (who happen to be the same ones who attested the
will of 1950) asserted that after the codicil had been signed by the testatrix and
the witnesses at the San Pablo Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion. On the other hand, Gimotea
affirmed that he did not do so, but brought the codicil to his office, and signed
and sealed it there. The variance does not necessarily imply conscious
perversion of truth on the part of the witnesses, but appears rather due to a wellestablished phenomenon, the tendency of the mind, in recalling past events, to
substitute the usual and habitual for what differs slightly from it.

HELD:

ARTicle 806

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. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while testator and
witnesses 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" (Art. 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 cannot be said to violate the rule that
testaments should be completed without interruption. It is noteworthy that Article
806 of the new Civil Code does not contain words requiring that the testator and
the witnesses should acknowledge the testament on the same day or occasion
that it was executed

JAVELLANA vs. LEDESMA

CRUZ vs. VILLASOR

No. The position taken by the oppositor-appellant is correct. The attestation

clause is 'a memorandum of the facts attending the execution of the will'
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
thereof negatives their participation.
The petitioner-appellee contends that signatures of the three witnesses on the
left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures
are in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses
at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses.

FACTS:

FACTS:

The Court of First Instance of Iloilo admitted to probate the documents in the
Visayan dialectas the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap

The CFI of Cebu allowed the probate of Valente Z. Cruzs last will and
testament. His surviving spouse, Agapita Cruz, opposed the allowance of the will
alleging it was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the testator having been

fully informed of the content thereof, particularly as to what properties he was

disposing and that the supposed last will and testament was not executed in
accordance with law. Agapita appealed the allowance of the will by certiorari.
ISSUE: W/N the will was executed in accordance with law (particularly Articles
805 and 806 of the NCC, the first requiring at least three credible witnesses to
attest and subscribe to the will, and the second requiring the testator and the
witnesses to acknowledge the will before a notary public.).
HELD:
NO. Of the three instrumental witnesses to the will, one of them (Atty. Teves) is
at the same time the Notary Public before whom the will was supposed to have
been acknowledged. 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 (Javellana v. Ledesma; Castro v. Castro); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or ahead of.
Consequently, 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.
Furthermore, the function of a notary public is, among others, to guard against
any illegal or immoral arrangement (Balinon v. De Leon). That function would
defeated if the notary public were one of the attesting instrumental witnesses. It
would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud, would be thwarted.
Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon. But these authorities do not serve the purpose of
the law in this jurisdiction or are not decisive of the issue herein because the
notaries public and witnesses referred to in these cases merely acted as
instrumental, subscribing attesting witnesses, and not as acknowledging
witnesses. Here, the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805-06. Probate of
will set aside.

This case is about the CFI Camiguins dismissal of a petition for the probate of
a notarial will ( of the late Rogaciano Gabucan) on the ground that the requisite
documentary stamp was not affixed to the notarial acknowledgment in the will
and, hence, according to Judge Manta, it was not admissible in evidence, citing
section 238 of the Tax Code, now section 250 of the 1977 Tax Code, which
reads:
SEC. 238. Effect of failure to stamp taxable document. An instrument,
document, or paper which is required by law to be stamped and which has been
signed, issued, accepted, or transferred without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any record of transfer of the same
be admitted or used in evidence in any court until the requisite stamp or stamps
shall have been affixed thereto and cancelled.
No notary public or other officer authorized to administer oaths shall add his
jurat or acknowledgment to any document subject to documentary stamp tax
unless the proper documentary stamps are affixed thereto and cancelled.
The probate court assumed that the notarial acknowledgment of the said will is
subject to the thirty-centavo documentary stamp tax fixed in section 225 of the
Tax Code, now section 237 of the 1977 Tax Code.
Judge Manta refused to reconsider the dismissal in spite of petitioner's
manifestation that he had already attached the documentary stamp to the
original of the will.
HELD:
The lower court manifestly erred in declaring that, because no documentary
stamp was affixed to the will, there was "no will and testament to probate" and,
consequently, the alleged "action must of necessity be dismissed
What the probate court should have done was to require the petitioner or
proponent to affix the requisite thirty-centavo documentary stamp to the notarial
acknowledgment of the will which is the taxable portion of that document.
That procedure may be implied from the provision of section 238 that the nonadmissibility of the document, which does not bear the requisite documentary
stamp, subsists only "until the requisite stamp or stamps shall have been affixed
thereto and cancelled."

GABUCAN vs. MANTA

NATURE:
Mandamus
FACTS:

Thus, it was held that the documentary stamp may be affixed at the time the
taxable document is presented in evidence (Del Castillo vs. Madrilena 49 Phil.
749). If the promissory note does not bear a documentary stamp, the court
should have allowed plaintiff's tender of a stamp to supply the deficiency.
(Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs.
Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document
does not invalidate such document.

JAVELLANA vs. LEDESMA

NATURE:
Appeal from judgment of CFI Iloilo
FACTS:

Second, whether notary signed certification of acknowledgment in the presence

of the testatrix and witnesses, doesnt affect validity of the codicil. The new Civil
Code doesnt require that the signing of the testator, witnesses and notary
should be in one single act. Art 805 and 806 says that while testator and
witnesses should 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 808

CFI admitted to probate the documents as the testament and codicil by

Javellana, with Tabiana, Montinola and Yap as witnesses.

ALVARADO vs. GAVIOLA

Contestant Ledesma appealed, saying the exhibits were not executed in
conformity with law.
ISSUE/S:
1. WON the testament was validly executed
2. WON the certificate of acknowledgment was validly notarized

FACTS:
On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will
entitled Huling Habilin wherein he disinherited an illegitimate son, petitioner
Cesar Alvarado, and expressly revoked a previously executed holographic will at
the time awaiting probate before the RTC of Laguna.

HELD:
1. YES
Ledesma argues that upon witness Yaps insistence, Javellana signed the
testamento in the presence of Yap alone and returned it with the statement that
no one would question it.
Court rightly rejected Ledesmas version. It was found that the testament was
executed by testatrix and witnesses in the presence of each other, at the house
of the decedent. It is highly unlikely that either Tabiana or Yap should have
insisted that Javellana, an infirm lady over 80, should leave her house to
execute her will when all three witnesses could have easily repaired thither for
the purpose.

According to Bayani Ma. Rino, private respondent, he was present when the
said notarial will was executed, together with three instrumental witnesses and
the notary public, where the testator did not read the will himself, suffering as he
did from glaucoma.
Rino, a lawyer, drafted the eight-page document and read the same aloud
before the testator, the three instrumental witnesses and the notary public, the
latter four following the reading with their own respective copies previously
furnished them.
Thereafter, a codicil entitled Kasulatan ng Pagbabago ng Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido
Alvarado was executed changing some dispositions in the notarial will to
generate cash for the testators eye operation.

2. YES
Unlike the testament, the codicil was executed after the enactment of new Civil
Code. Therefore, it had to be acknowledged before a notary public.

Said codicil was likewise not read by Brigido Alvarado and was read in the same
manner as with the previously executed will.

This variance doesnt necessarily imply perversion of truth.

When the notarial will was submitted to the court for probate, Cesar Alvarado
filed his opposition as he said that the will was not executed and attested as
required by law; that the testator was insane or mentally incapacitated due to
senility and old age; that the will was executed under duress, or influence of fear
or threats; that it was procured by undue pressure and influence on the part of
the beneficiary; and that the signature of the testator was procured by fraud or
trick.

First, the mind has a tendency, in recalling past events, to substitute the usual
and habitual for what differs slightly from it.

ISSUE: W/N notarial will of Brigido Alvarado should be admitted to probate

despite allegations of defects in the execution and attestation thereof as testator

The same witnesses asserted that after codicil was signed by Javellana and the
witnesses, the same was signed and sealed by notary public in the hospital. But
the notary public said he did not, that he signed and sealed the codicil in his
office.

was allegedly blind at the time of execution and the double-reading requirement
under Art. 808 of the NCC was not complied with.
HELD:
YES. The spirit behind the law was served though the letter was not. Although
there should be strict compliance with the substantial requirements of law in
order to insure the authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and which, when taken into
account, may only defeat the testators will.
Cesar Alvardo was correct in asserting that his father was not totally blind (of
counting fingers at 3 feet) when the will and codicil were executed, but he can
be so considered for purposes of Art. 808.
That Art. 808 was not followed strictly is beyond cavil.
However, in the case at bar, there was substantial compliance where the
purpose of the law has been satisfied: that of making the provisions known to
the testator who is blind or incapable of reading the will himself (as when
he is illiterate) and enabling him to object if they do not accord with his wishes.
Rino read the testators 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 acknowledgment take place.
There is no evidence that the contents of the will and the codicil were not
sufficiently made known and communicated to the testator.
With four persons, mostly known to the testator, following the reading word for
word with their own copies, it can be safely concluded that the testator was
reasonably assured that what was read to him were the terms actually
appearing on the typewritten documents.

GARCIA vs. VASQUEZ

FACTS:
This is a petition for appeal from the CFI of Manila admitting to probate the will
of Gliceria Avelino del Rosario (Gliceria) executed in 1960. Likewise, this is
also an appeal to remove the current administrator, Consuelo Gonzales-Precilla(
Consuelo) as special administratrix of the estate on the ground of Consuelo
possesses interest adverse to the estate and to order the RD of Manila to
annotate on the registered lands a notice of Lis Pendens.
When Gliceria died she had no descendants, ascendants, bros or sisses and 90
yrs old. After which, her niece, Consuelo petitioned the court to be the
administratrix of the properties. The court approved this because Consuelo has
been was already managing the properties of the deceased during her lifetime.
What the respondents allege is that in the last years of the deceased, Consuelo
sought the transfer of certain parcels of land valued at 300k for a sale price of
30k to her husband Alfonso through fraud and intimidation. In addition, the
oppositors presented evidence that Consuelo asked the court to issue new
Certificates of Titles to certain parcels of land for the purpose of preparing the
inventory to be used in the probate. Also shown was that NEW TCTs were
issued by the RD for certain lands of the deceased after Consuelo asked for the
old TCTs.
At the end of the probate proceedings, the court ruled that Counsuelo should be
made the administrator, and that the will was duly executed because of these
reasons: NO EVIDENCE HAS BEEN PRESENTED to establish that the
deceased was not of sound mind, that eventough the allegations state that the
deceased prepared another will in 1956 (12pages), the latter is not prevented
from executing another will in 1960 (1page), and that inconsistencies in the
testimonies of the witnesses prove their truthfulness.
ISSUE: Was the will in 1960 (1 page) duly/properly executed?
HELD:

The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will to himself (as when he is illiterate), is to
make the provisions thereof known to him, so that he may be able to object if
they are not in accordance with his wishes.
Although there should be strict compliance with the substantial requirements of
law in order to insure the authenticity of the will, the formal imperfections should
be brushed aside when they do not affect its purpose and which, when taken
into account, may only defeat the testators will.

NO. Provision of Article 808 mandatory. Therefore, For all intents and purposes
of the rules on probate, the testatrix was like a blind testator, and the due
execution of her will would have required observance of Article 808. The
rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate) , is to make the
provisions thereof known to him, so that he may be able to object if they are not
in accordance with his wishes. Likewise, the 1970 will was done in Tagalog
which the deceased is not well versed but in Spanish. This creates doubt as to
the due execution of the will and as well as the typographical errors contain

therein which show the haste in preparing the 1 page will as compared to the 12
page will created in 1956 written in Spanish. ALSO, as to the blindness, there
was proof given by the testimony of the doctor that the deceased could not read
at near distances because of cataracts. (Testatrixs vision was mainly for viewing
distant objects and not for reading print.) Since there is no proof that it was read
to the deceased twice, the will was NOT duly executed.
ALSO, Consuelo should be removed as administrator because she is not
expected to sue her own husband to reconvey the lands to the estate alleged to
have been transferred by the deceased to her own husband.
The notice of lis pendens is also not proper where the issue is not an action in
rem, affecting real property or the title thereto.
ARTICLE 809

In the course of the proceedings, petitioners opposed to the allowance of the

testators 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 courts decision stating that it substantially complies
with Article 805. Hence this appeal.

CANEDA vs. CA
FACTS:

ISSUE: W/N the attestation clause in the will of the testator is fatally defective or
can be cured under the art. 809.

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.

HELD:

He was assisted by his lawyer, Atty. Emilio Lumontad.

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.

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

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.

The attestation clause need not be written in a language known to the testator or
even to the attesting witnesses.

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.

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.

On May 29, 1980, the testator passed away before his petition could finally be
heard by the probate court.

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

Thereafter one of the legatees, Benoni Cabrera, sought his appointment as

special administrator of the testators estate.

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.

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 testators 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.

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.
ARTICLE 810
ROXAS vs. DE JESUS
FACTS:
Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. for partition of
the estate of the deceased and also delivered the holographic will of the
deceased. Simeon stated that he found a notebook belonging to deceased,
which contained a letter-will entirely written and signed in deceaseds
handwriting. 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. Roxas relatives
corroborated the fact that the same is a holographic will of deceased, identifying
her handwriting and signature. Respondent opposed probate on the ground that
it such does not comply with Article 810 of the CC because the date contained in
a holographic will must signify the year, month, and day.
ISSUE: W/N 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.
HELD:

Valid date.
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.
The underlying and fundamental objectives permeating the provisions of the law
wills 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
sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator. 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
Will should be admitted to probate (Rey v. Cartagena 56 Phil. 282).
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. In Abangan v. Abanga 40 Phil. 476, 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.

LABRADOR vs. CA
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
Melecios 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.

The probate was opposed on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the
petitioner and his wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually written either on
the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on
the will.
The probate was denied on the ground that under Article 811 of the Civil Code,
the proponent must present three 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 "did not prove sufficiently that the body of
the will was written in the handwriting of the testatrix."
Petitioner appealed, urging: first, that he was not bound to produce more than
one witness because the will's authenticity was not questioned; and second, that
Article 811 does not mandatorily require the production of three witnesses to
identify the handwriting and signature of a holographic will, even if its
authenticity should be denied by the adverse party.

HELD:
ISSUE: W/N Article 811 of the Civil Code is mandatory or permissive.
YES. The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will itself and
executed in the hand of the testator.
The intention to show March 17 1968 as the date of the execution is plain from
the tenor of the succeeding words of the paragraph. It states that this being in
the month of March 17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one who made this
writing is no other than Melecio Labrador, their father. This clearly shows that
this is a unilateral act of Melecio who plainly knew that he was executing a will.
ARTicle 811
AZAOLA vs. SINGSON
FACTS:
Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957.
Petitioner submitted for probate her holographic will, in which Maria Azaola was
made the sole heir as against the nephew, who is the defendant. Only one
witness, Francisoco Azaola, was presented to testify on the handwriting of the
testatrix. He testified that he had seen it one month, more or less, before the
death of the testatrix, as it was given to him and his wife; and that it was in the
testatrixs handwriting. He presented the mortgage, the special power of the
attorney, and the general power of attorney, and the deeds of sale including an
affidavit to reinforce his statement. Two residence certificates showing the
testatrixs signature were also exhibited for comparison purposes.

HELD:
Article 811 is merely permissive and not mandatory. Since the authenticity of the
will was not contested, petitioner was not required to produce more than one
witness; but even if the genuineness of the holographic will were contested,
Article 811 cannot be interpreted to require the compulsory presentation of three
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 (Art. 810, new Civil Code), it
becomes obvious that the existence of witness possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not merely
a question of finding and producing any three witnesses; they must be witnesses
"who know the handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator". There may be no available
witness of 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.
This is the reason why the 2 nd paragraph of Article 811 allows the court to resort
to expert evidence. The law foresees the possibility that no qualified witness
may be found (or what amounts to the same thing, that no competent witness
may be willing to testify to the authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
What the law deems essential is that the court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and the

court is convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the Court may still,
and in fact it should, resort to handwriting experts. The duty of the Court, in fine,
is to exhaust all available lines of inquiry, for the state is as much interested as
the proponent that the true intention of the testator be carried into effect.
RODELAS vs. ARANZA
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 vs. CALUGAY
FACTS:
On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo
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 voters affidavit, but failed to as the same was already destroyed and
no longer available.
The third, the deceaseds niece, claimed that she had acquired familiarity with
the deceaseds 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 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 voters affidavit for
verification as it was no longer available.
The deceaseds 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 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 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.

The fifth was an employee of the DENR who testified that she was familiar with
the signature of the deceased which appeared in the latters 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.

Evangeline Calugay never declared that she saw the decreased write a note
or sign a document.

Codoy and Ramonals demurrer to evidence was granted by the lower court. It
was reversed on appeal with the Court of Appeals which granted the probate.

(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.

ISSUES:
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 deceaseds 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 former lawyer of the deceased expressed doubts as to the authenticity

of the signature in the holographic will.

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 manda
ARTicle 814

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.

KALAW vs. RELOVA

AJERO vs. CA
FACTS:
FACTS:
On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his
deceased sister, Natividad Kalaw, filed a petition for the probate of her
holographic Will executed on December 24, 1968.
The holographic Will, as first written, named Rosa Kalaw, a sister of the testatrix
as her sole heir. She opposed probate alleging that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of
the Civil Code reading: Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will the testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should be given
effect and probated so that she could be the sole heir thereunder.
Trial Court denied petition to probate the holographic will. Reconsideration
denied.
ISSUE: W/N the original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of authentication by the full
signature of the testatrix, should be probated or not, with Rosa as sole heir.
HELD:
Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will litem not been noted under his signature, ... the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined.
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the entire Will is voided
or revoked for the simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should be given efficacy
is to disregard the seeming change of mind of the testatrix. But that change of
mind can neither be given effect because she failed to authenticate it in the
manner required by law by affixing her full signature,

The holographic will of Annie San was submitted for probate.

Private respondent opposed the petition on the grounds that: neither the
testaments body nor the signature therein was in decedents 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 decedents 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 noncompliance with the provisions of Article 814.
ARTICLE 817

Unless the authenticated alterations, cancellations or insertions were made on

the date of the holographic will or on testators signature, their presence does
not invalidate the will itself. The lack of authentication will only result in
disallowance of such changes.

MICIANO vs, BRIMO

NATURE:

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).

Appeal from various Manila CFI orders

FACTS:

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.

Joseph Brimo. a Turkish national but a long time resident of the Philippines, died
and left behind a testamentary will with Andre Brimo, one the decedents brother
as a legatee.

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.

Andre Brimo opposed the will on the ground that the provisions therein are not
in accord with Turkish law and thus a violation of the Philippine Civil Code,
Article 10 which states:

In a petition to admit a holographic will, the only issues to be resolved are:

"Nevertheless, legal a testamentary successions, in respect to the order of

succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property or
the country in which it may be situated."

1. whether the instrument submitted is, indeed, the decedents 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.

He was also excluded from the will in view of the provision therein that the
testator annuls and cancels the disposition found in the will favorable to persons
who do not respect the provisions of the said will.
The lower court also dismissed the opposition to the will as the oppositor did not
prove that said testamentary dispositions are not in accordance with the Turkish
laws, inasmuch as he did not present any evidence showing what the Turkish
laws ae on the matter, and in the absence of evidence on such laws, they are
presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector
of Customs, 36 Phil., 472.)
ISSUES:
1. WON the will complied with Turkish law xxx
2. WON the exclusion of Andre Brimo from the will is valid
HELD
1. Yes. The ratiocination of the lower court with regard the presumption that
Philippine and Turkish laws are the same is valid in the absence of evidence that
showing what the Turkish laws are on the matter. Hence the will must be

complied with and executed as the same is not contrary to Philippine laws.

RULING:

2. No. The condition imposed in the will that legatees must respect the
testators will to distribute his property in accordance with the laws of the
Philippines is void for being contrary to law under Article 792 0f the Civil Code
which provides as follows:
"Impossible conditions and those contrary to law or good morals shall be
considered as not imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise provide."
Said condition is contrary to law because it expressly ignores the testator's
national law when, according to article 10 of the Civil Code above quoted, such
national law of the testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered
unwritten, and the institution of legatees in said will is unconditional and
consequently valid and effective even as to the herein oppositor.

The appealed decision correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as to his last will and testament despite the
fact that even then the Civil Code already decreed the invalidity of joint wills,
whether in favor of the joint testators, reciprocally, or in favor of a third party (Art.
669, old Civil Code). A final judgment rendered on a petition for the probate of a
will is binding upon the whole world.

ARTICLE 818
PAULA DE LA CERNA, ET AL. vs. MANUELA REBACA-POTOT, ET AL., AND
THE HONORABLE COURT OF APPEALS
FACTS:
Spouses Bernabe de la Serna and Gervasia Rebaca, executed a joint last will
and testament whereby they willed that their two parcels of land acquired during
their marriage together with all improvements thereon shall be given to Manuela
Rebaca, their niece. Bernabe died and the will was probated in 1939 after due
publication as required by law and there being no opposition. Upon the death of
Gervasia Rebaca, another petition for the probate of the same will insofar as
Gervasia was concerned was filed by Manuela but the court dismissed it for
failure of Manuela to appear.
Paula de la Cerna questioned for the nullity of the joint will of Bernabe being
prohibited in the Philippine law. The Court of First Instance ordered the petition
heard and declared the testament null and void, for being executed contrary to
the prohibition of joint wills in the Civil Code but on appeal by the testamentary
heir, the Court of Appeals reversed, on the ground that the decree of probate in
1939 was issued by a court of probate jurisdiction and conclusive on the due
execution of the testament. Hence, this appeal.
ISSUES:
1. Whether or not an error of law affects the conclusive effect of its
decision.
2. Whether or not the joint will is valid as to the share of Gervasia who
died later than Bernabe.

The probate decree in 1989 could only affect the share of the deceased
husband, Bernabe de la Cerna. It could not include the disposition of the share
of the wife, Gervasia Rebaca, who was then still alive, and over whose interest
in the conjugal properties the probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Be it remembered that prior to the
new Civil Code, a will could not be probated during the testator's lifetime. 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 828
TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
ALDINA MALOTO CASIANO, ET AL. vs..
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO
FACTS:
Adriana Maloto died leaving as heirs the parties (Aldina, Constantcio, Panfilo
and Felino) in this case who are her niece and nephews. Believing that the
deceased did not leave behind a last will and testament, the four (4) heirs
commenced an intestate proceeding for the settlement of their aunts estate
which was instituted in the then CFI. However, while the case was still in
progress, the heirs executed an agreement of extrajudicial settlement of
Adrianas estate which provides for the division of the estate into four equal
parts among themselves. When presented before the court, said agreement was
approved. However, three years later, Atty. Sulpicio Palma, a former associate of
Adrianas counsel, discovered a document entitled KATAPUSAN NGA
PAGBUBULAT-AN (Testamento) and purporting to be the last will and testament
of Adriana. Panfilo and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable shares in the estate
that what they have received by virtue of the agreement of extrajudicial
settlement. The will likewise gives devises and legacies to other parties, among
them being the petitioners. Thus, Aldino and Constancio joined by other

devisees and legatees filed a motion for reconsideration and annulment of the
proceedings therein and for the allowance of the will. Upon denial of the trial
court, the petitioners came before the Supreme Court by way or petition for
certiorari and mandamus which were dismissed because they were not the
proper remedies. The appellate court found out that the will was burned by the
househelper of Adriana and was at the possession of the lawyer in because
Adriana was seeking the services of the lawyer in order to have a new will drawn
up.
ISSUE: Whether or not the will of Adriana Maloto had been efficiently revoked.
RULING:
Article 830. No will shall be revoked except in the following cases:
1. By implication of law; or

2. By some will, codicil, or other writing

executed as provided in case of wills;
or

3. By burning, tearing, cancelling, or

obliterating the will with the intention of
revoking it, by the testator himself, or
by some other person in his presence,
and by his express direction. If burned,
torn, cancelled, or obliterated by some
other person, without the express
direction of the testator, the will may
still be established, and the estate
distributed in accordance therewith, if
its contents, and due execution, and
the fact of its unauthorized destruction,
cancellation,
or
obliteration
are
established according to the Rules of
Court.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not suffice.
Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his

presence and under his express direction. There is paucity of evidence to show
compliance with these requirements. For one, the document or papers burned
by Adrianas maid was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not proven to have been
done under the express direction of Adriana and was not done in her presence.