7 BAGTAS, , VS.

PAGUIO
FACTS: This is an appeal to probate a document which was offered as the last will and testament of Pioquinto
Paguio y Pizarro. The testator died on the 28th of September, 1909, a year and five months following the date of
the execution of the will. The will was propounded by the executrix, Juliana Bagtas, widow of the decedent, and the
opponents are a son and several grandchildren by a former marriage, the latter being the children of a deceased
daughter.

The basis of the opposition to the probation of the will is that the same was not executed according to the
formalities and requirements of the law touching wills, and further that the. testator was not in the full enjoyment
and use of his mental faculties and was without the mental capacity necessary to execute a valid will.

The record shows that the testator, Pioquinto Paguio, for some fourteen or fifteen years prior to the time of his
death suffered from a paralysis of the left side of his body; that a few years prior to his death his hearing became
impaired and that he lost the power of speech. Owing to the paralysis of certain muscles his head fell to one side,
and saliva ran from his mouth. He retained the use of his right hand, hdwever, and was able to write fairly well.
Through the medium of signs he was able to indicate his wishes to his wife and to other members of his family.

At the time of the execution of the will there were present the four testamentary witnesses, Agustin Paguio,
Anacleto Paguio, Francisco Paguio, and Pedro Paguio, an attorney, Sefior Marco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died, and consequently their testimony was'not available upon the
trial of the case in the lower court. The other three testamentary witnesses and the witness Florentino Ramos
testified as to the manner in which the will was executed. According to the uncontroverted testimony of these
witnesses the will was executed in the following manner:

Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the disposition of his
property, and these notes were in turn delivered to Senor Marco, who transcribed them and put them in form. The
witnesses testify that the pieces of paper upon which the notes were written were delivered to the attorney by the
testator; that the attorney read them to the testator asking if they were his testamentary dispositions; that the
testator assented each time with an affirmative movement of his head; that after the will as a whole had been thus
written by the attorney, it was read in a loud voice in the presence of the testator and the witnesses; that Senor
Marco gave the document to the testator; that the latter, after looking over it, signed it in the presence of the four
subscribing witnesses; and that they in turn signed it in the presence of the testator and of each other.

These are the facts of record with reference to the execution of the will and we are in perfect accord with the
judgment of the lower court that the formalities of the Code of Civil Procedure have been fully complied with.

This brings us now to a consideration oi appellants' second assignment of error, viz, the testator's alleged mental
incapacity at the time of the execution of the will. Upon this point considerable evidence was adduced at the trial.
One of the attesting witnesses testified that at the time of the execution of the will the testator was in his right
mind, and that although he was seriously ill, he indicated by movements of his head what his wishes were. Another
of the attesting witnesses stated that he was not able to say whether decedent had the full use of his mental
faculties or not, because he had been ill for some years, and that he (the witness) was not a physician. The other
subscribing witness, Pedro Paguio, testified in the lower court as a witness for the opponents. He was unable to
state whether or not the will was the wish of the testator. The only reasons he gave for his statement were the
infirmity and advanced age of the testator and the fact that he was unable to speak. This witness stated that the
testator signed the will, and he verified his own signature as a subscribing witness.

Florentino Ramos, although not an attesting witness, stated that he was present when the will was executed and
his testimony was cumulative in corroboration of the manner in which the will was executed and as to the fact that
the testator signed the will. This witness also stated that he had frequently transacted matters of business for the
decedent and had written letters and made inventories of his property at his request, and that immediately before
and after the execution of the will he had performed offices of this character. He stated that the decedent was able
to communicate his thoughts by writing. The testimony of this witness clearly indicates the presence of mental
capacity on the part of the testator. Among other witnesses for the opponents were two physicians, Doctor Basa
and Doctor Viado. Doctor Basa testified that he had attended the testator some four or five years prior to his death
and that the latter had suffered from a cerebral congestion from which the paralysis resulted. The following
question was propounded to Doctor Basa:

"Q. Referring to the mental condition in which you found him the last time you attended him, do you think he was
in his right mind? A. I can not say exactly whether he was in his right mind, but I noted some mental disorder,
because when I spoke to him he did not answer me."
Doctor Basa testified at more length, but the substance of his testimony is that the testator had suffered a paralysis
and that he had noticed some mental disorder. He does not say that the testator was not in his right mind at the
time of the execution of the will, nor does he give it as his opinion that he was without the necessary mental
capacity to make a valid will. He did not state in what way this mental disorder had manifested itself other than
that he had noticed that the testator did not reply to him on one occasion when he visited him.
Doctor Viado, the other physician, had never seen the testator, but his answer was in reply to a hypothetical
question as to what would be the mental condition of a person who was 79 years old and who had suffered from a
malady such as the testator was supposed to have had according to the testimony of Doctor Basa, whose testimony
Doctor Viado had heard. He replied and discussed at some length the symptoms and consequences of the disease
from which the testator had suffered; he read in support of his statements from a work by a German physician, Dr.
Herman Eichost In answer, however, to a direct question, he stated that he would be unable to certify to the mental
condition of a person who was suffering from such a disease.

We do not think that the testimony of these two physicians in any way strengthens the contention of the
appellants. Their testimony only confirms the fact that the testator had been for a number of years prior to his
death afflicted with paralysis, in consequence of which his physical and mental strength was greatly impaired.
Neither of them attempted to state what was the mental condition of the testator at the time he executed the will in
question. There can be no doubt that the testator's infirmities were of a very serious character, and it is quite
evident that his mind was not as active as it had been in the earlier years of his life. However, we can not conclude
from this that he was wanting in the necessary mental capacity to dispose of h'is property by will.

The courts have been called upon frequently to nullify wills executed under such circumstances, but the weight of
authority is in support of the principle that it is only when those seeking to overthrow the will have clearly
established the charge of mental incapacity that the courts will intervene to set aside a testamentary document of
this character. In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the question of testamentary capacity was
discussed by this court. The numerous citations there given from the decisions of the United States courts are
especially applicable to the case at bar and have our approval. In this jurisdiction the presumption of law is in favor
of the mental capacity of the testator and the burden is upon the contestants of the will to prove the lack of
testamentary capacity. (In the matter of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the will of Butalid,
10.Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep., 689.)

The rule of law relating to the presumption of mental soundness is well established, and the testator in the case at
bar never having been adjudged insane by a court of competent jurisdiction, this presumption continues, and it is
therefore incumbent upon the opponents to overcome this legal presumption by proper evidence. This we think
they have failed to do. There are many cases and authorities which we might cite to show that the courts have
repeatedly held that mere weakness of mind and body, induced by age and disease do not render a person
incapable of making a wilh The law does not require that a person shall continue in the full enjoyment and use of
his pristine physical and mental powers in order to execute a valid will. If such were the legal standard, few indeed
would be the number of wills that coulii meet such exacting requirements. The authorities, both medical and legal,
are universal in the statement that the question of mental capacity is one of degree, and that there are many
gradations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are
denominated as insanity and idiocy.

The right to dispose of property by testamentary disposition is as sacred as any other right which a person may
exercise and this right should not be nullified unless mental incapacity is established in a positive and conclusive
manner. In discussing the question of testamentary capacity, it is stated in volume 28, page 70, of the American and
English Encyclopedia of Law, that

"Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to testamentary capacity.
A testator may be afflicted with a variety of mental weaknesses, disorders, or peculiarities and still be capable in
law of executing a valid will." (See the numerous cases there cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted with approval
in Campbell vs.Campbell (130 I11., 466), as follows:

"To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken, unimpaired,
or unshattered by disease or otherwise, or that the testator should be in the full possession of his reasoning
faculties."
In note, 1 Jarman on Wills, 38, the rule is thus stated:

"The question is not so much, what was the degree of memory possessed by the testator, as, had he a disposing
memory? Was he able to remember the property he was about to bequeath, the manner of distributing it, and the
objects of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and
understand the business in which he was engaged at the time when he executed his will." (See authorities there
cited.)
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator died at
the age of nearly 102 years. In his early years he was an intelligent and well informed man. About seven years prior
to his death he suffered a paralytic stroke and from that time his mind and memory were much enfeebled. He
became very dull of hearing and in consequence of the shrinking of his brain he was affected with senile cataract
causing total blindness. He became filthy and obscene in his habits, although formerly he was observant of the
proprieties of life. The court, in commenting upon the case, said:
"Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will, if
sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total, or
extend to his immediate family or property. * * *

*******

"Dougal (the testator) had lived over one hundred years before he made the will, and his physical and mental
weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was
blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events, especially of names,
and repeated questions in conversation; and sometimes, when aroused from sleep or slumber, would seem
bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and
intelligence, are of the opinion that his reason was so far gone that he was incapable of making a will, although they
never heard him utter an irrational expression."
In the above case the will was sustained. In the case at bar we might draw the same contrast as was pictured by the
court in the case just quoted. The striking change in the physical and mental vigor of the testator during the last
years of his life may have led some of those who knew him in his earlier days to entertain doubts as to his mental
capacity to make a will, yet we think that the statements of the witnesses to the execution of the will and the
statemerits of the, conduct of the testator at that time all indicate that he unquestionably had mental capacity and
that he exercised it on this occasion. At the time of the execution of the will it does not appear that his conduct was
irrational in any particular. He seems to have comprehended clearly what the nature of the business was in which
he was engaged. The evidence shows that the writing and execution of the will occupied a period of several hours
and that the testator was present during all this time, taking an active part in all the proceedings. Again, the will in
the case at bar is perfectly reasonable and its dispositions are those of a rational person.

For the reasons above stated, the order probating the will should be and the same is hereby affirmed, with costs of
this instance against the appellants.

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

Nenita filed an omnibus petition to set aside proceedings, admit opposition with counter-petition for
administration and preliminary injunction, and an opposition to the probate of the will and a counter-petition for
letters of administration, which were dismissed by Judge Honrado. Instead of appealing, Nenita filed a case to
annul the probate proceedings but Judge Honrado dismissed it. The judge then closed the testamentary proceeding
after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid.

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

ISSUE:

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

HELD:

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

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina
Salvador Suroza is repeatedly referred to as the “testator” instead of “testatrix”. Had respondent judge been careful
and observant, he could have noted not only the anomaly as to the language of the will but also that there was
something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her
supposed father who was still alive. Furthermore, after the hearing conducted by the deputy clerk of court,
respondent judge could have noticed that the notary was not presented as a witness. In spite of the absence of an
opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he
could have ascertained whether the will was validly executed.

10 BALONAN vs. ABELLANA, et al., oppositors-appellants.

FACTS: It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is
written in the Spanish language and consists of two (2) typewritten. The first page is 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', and 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. (Emphasis supplied)

ISSUE: Does the signature of Dr. Juan A. 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?

RULING:

The present law, Article 805 of the Civil Code, in part provides as follows:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witness in the presence of the testator and of one another.
(Emphasis supplied.)

The clause "must be subscribed at the end thereof by the testator himself or by the testator's name written by
some other person in his presence and by his express direction," is practically the same as the provisions of Section
618 of the Code of Civil Procedure (Act No. 190) which reads as follows:

No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor
charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name
written by some other person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of each other. . . . (Emphasis supplied).

Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the
testator's name must be written by some other person in his presence and by his express direction. Applying this
provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil., 700:
 It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator
does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the
will at the testator's request, the notary certifying thereto as provided in Article 695 of the Civil Code,
which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's
name 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 this in the testator's presence and by his express direction; so that a will signed in
a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.

Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall 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.

Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the
will the full name of the testator and his own name in one forms given above. He did not do so, however,
and this is failure to comply with the law is a substantial defect which affects the validity of the will and
precludes its allowance, notwithstanding the fact that no one appeared to oppose it.

The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan,
21 Phil., 461, we held that the important thing is that it clearly appears 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. Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil.,
330; Garcia vs. Lacuesta, 90 Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said
Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the
law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his
presence and by his express direction.

It appearing that the above provision of the law has not been complied with, we are constrained to declare that the
said will of the deceased Anacleta Abellana may not be admitted to probate.

WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the will denied.
With costs against petitioner.

11 Garcia v. 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.

ISSUE:

Whether the will should be allowed despite the defect of the attestation clause since the testator had placed a cross
mark himself as his signature.

HELD:

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

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

Issue: Whether or not the subscribing witness was able to see the testator and other witnesses in the act of affixing
their signatures.

HELD: YES
The Court is unanimous in its opinion that had the witnesses been proven to be in the outer room when the
testator and other witnesses signed the will in the inner room, it would have invalidated the will since the
attaching of the signatures under the circumstances was not done 'in the presence' of the witnesses in the outer
room. The line of vision of the witness to the testator and other witnesses was blocked by the curtain separating
the rooms.

The position of the parties must be such that with relation to each other at the moment of the attaching the
signatures, they may see each other sign if they chose to.

13 YAP TUA vs. YAP CA KUAN and YAP CA LLU

[G.R. No. 6845. September 1, 1914.]
JOHNSON, J.:

FACTS:
 August, 1909, one Perfecto Gabriel, representing the petitioner, Yap Tua, presented a petition in the Court of First
Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last
will and testament of Tomasa Elizaga Yap Caong, deceased.

 Tomasa Elizaga Yap Caong died in the city of Manila on the 11th day of August, 1909.

 Together with the petition was the will, signed by deceased, as well as Anselmo Zacarias, Severo Tabora, and
Timoteo Paez.

 During the hearing, Timoteo Paez and Pablo Agustin declared that they knew the said Tomasa Elizaga Yap Caong;
that she had died on the 11th day of August, 1909; that before her death she had executed a last will and
testament; that he was present at the time of the execution of the same; that he had signed the will as a witness;
that Aselmo Zacarias and Severo Tabora had also signed said will as witnesses and that they had signed the will
in the presence of the deceased; that the said Tomasa Elizaga Yap Caong signed the will voluntarily; and in their
judgment, she was in the possession of her faculties; that there were no threats or intimidation used to induce
her to sign the will; that she signed it voluntarily.

 It was ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed and admitted to probate.

 From the record it appears that no further proceedings were had until the 28th of February, 1910, when Yap Ca
Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were interested in the matters of the
sail will and desired to intervene asked that a guardian ad litem be appointed to represented them in the cause.

 The court appointed guardian ad litem of said parties, Gabriel La O, appeared in court and presented a motion in
which he alleged, in substance:
XXX
(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then mentally
capacitated to execute the same, due to her sickness.
XXX
ISSUE:
Whether or not the court erred in declaring that the testator had clear knowledge and knew what she was doing at
the time of signing the will.
HELD:
NO. Article 800 of the Civil Code states that:
“The law presumes that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person
who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly
known to be insane, the person who maintains the validity of the will must prove that the testator made it during a
lucid interval.”
We find the same conflict in the declarations of the witnesses which we found with reference to the undue
influence. While the testimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap
Caong, yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the execution of the will
in question (Exhibit A). Several witnesses testified that at the time the will was presented to her for her signature,
she was of sound mind and memory and asked for a pen and ink and kept the will in her possession for ten or
fifteen minutes and finally signed it. The lower court found that there was a preponderance of evidence sustaining
the conclusion that Tomasa Elizaga Yap Caong was of sound mind and memory and in the possession of her
faculties at the time she signed this will. In view of the conflict in the testimony of the witnesses and the finding of
the lower court, we do not feel justified in reversing his conclusions upon that question.
Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga Yap
Caong did execute, freely and voluntarily, while she was in the right use of all of her faculties, the will dated August
11, 1909 (Exhibit A). Therefore the judgment of the lower court admitting said will to probate is hereby affirmed
with costs.
(Kate)

14 Taboada vs. Rosal GR L-36033. November 5, 1982

FACTS – Petitioner Apolonio Taboada filed a petition for probate of the will of the late Dorotea perez. The will
consisted of two pages, the first page containing all the testamentary dispositions of the testator and was signed at
the end or bottom of the page by the testatrix alone and at the left hand margin by the three instrumental
witnesses. The second page consisted of the attestation clause and the acknowledgment was signed at the end of
the attestation clause by the three witnesses and at the left hand margin by the testatrix. The trial court disallowed
the will for want of formality in its execution because the will was signed at the bottom of the page solely by the
testatrix, while the three witnesses only signed at the left hand margin of the page. The judge opined that
compliance with the formalities of the law required that the witnesses also sign at the end of the will because the
witnesses attest not only the will itself but the signature of the testatrix. Hence, this petition.

ISSUE – Was the object of attestation and subscription fully when the instrumental witnesses signed at the left
margin of the sole page which contains all the testamentary dispositions?
HELD –
On certiorari, the Supreme Court held a) that the objects of attestation and 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 a subscribing
witness to be the same will executed by the testatrix; and b) that the failure of the attestation clause to state the
number of pages used in writing the will would have been a fatal defect were it not for the fact that it is really and
actually composed of only two pages duly signed by the testatrix and her instrumental witnesses.
(LONG RULING [VERBATIM])
Undoubtedly, 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.
It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that those things are done which the statute
requires for the execution of a will and that the signature of the testator exists as a fact. On the other
hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of
such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation
clause.

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. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the
law on wills in this project consists in the liberalization of the manner of their execution with the end in view of
 giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report
of the Code Commission, p. 103).

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 to be the same will
executed by the testatrix. There was no question of fraud or substitution behind the questioned order.

16 Azuela v. Court of Appeals G.R. No. 122880 (2006)

FACTS: 1. Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo. However, this
was opposed by Geralda Castillo, who was the attorney-in-fact of “the 12 legitimate heirs” of the decedent.
According to her, the will was forged, and imbued with several fatal defects. Particularly, the issue relevant in this
subject is that the will was not properly acknowledged. The notary public, Petronio Y. Bautista, only wrote
“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.”

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

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

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

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

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

17 Gan v. Yap
FACTS:
Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan, and in Manila. Fausto E. Gan, her
nephew, initiated the proceedings in the Manila CFI with a petition for the probate of a holographic will allegedly
executed by the deceased. Her surviving husband Ildefonso Yap opposed the petition and asserted that the
deceased had not left any will, nor executed any testament during her lifetime.
During the probate, the alleged will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
Jimenez who testified Felicidad’s intention to make a will and allegedly saw it as well. According to the witnesses,
Felicidad did not want her husband to know about it, but she had made known to her other relatives that she made
a will.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,refused to probate the
alleged will on account of the discrepancies arising from the facts. For one thing, it is strange that Felicidad made
her will known to so many of her relatives when she wanted to keep it a secret and she would not have carried it in
her purse in the hospital, knowing that her husband may have access to it.
In the face of these improbabilities, the trial judge had to accept the oppositor’s evidence that Felicidad did not and
could not have executed such holographic will.
ISSUE:
May a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare
that it was in the handwriting of the testator?
HELD:
The SC 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 New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. “A person may execute a
holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject
to no other form and may be made in or out of the Philippines, and need not be witnessed.”
Holographic will is a radical departure from the form and solemnities provided for wills. With regard to
holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses;
provided however, that they are “entirely written, dated, and signed by the hand of the testator himself.”
“In the probate of a holographic will” says the New Civil Code, “it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of
any such witnesses, (familiar with decedent’s handwriting) and if the court deem it necessary, expert testimony
may be resorted to.”
The witnesses need not have seen the execution of the holographic will, but they must be familiar with the
decedent’s handwriting. Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity — the testator’s handwriting
— has disappeared.

18 Roxas vs. De Jesus Jr.

Petitioners: "In the matter of the intestate estate of Andres G. De Jesus and BibianaRoxas De Jesus, Simeon R.
Roxas& Pedro Roxas De Jesus

Respondent: Andres R. De Jesus, Jr.

FACTS:
-Pet.- Simeon R. Roxas, brother of the deceased BibianaRoxas De Jesus, was appointed administrator of the
Holographic Will of the deceased BibianaRoxas De Jesus. 26-May-1973, Judge Colayco set the probate of the
holographic will. Pet.-Simeon testified that he found a notebook belonging to the deceased (Bibiana R. De Jesus),
that on pages 21-24, a letter-Will address to her children and entirely written and signed in the handwriting of the
deceased Bibiana was found. The Will dated "FEB./61" and states:"This is my Will which I want to be respected
although it is not written by a lawyer. x xx". His testimony was supported by the testimonies of Pedro R. De jesus
and Manuel Roxas.

-However, Respondent Luz R. Henson (another compulsory heir), Opposed to probate the Will because:
a. It was not executed in accordance with the Law;
b. It was executed through force, intimidation and/or under duress, undue influence and improper pressure, and
c. the alleged testatrix (Bibiana R. De jesus) acted by mistake and/or did not intend, nor could have intended the
said Will to be her Last Will and Testament at the time of its execution.

-Aug 24,1973, Judge Colayco dismissed the appeal and allow the probate of the Holographic Will of Bibiana R. De
Jesus

- Respondent file a motion for reconsideration opposing that the said date "FEB./61" was not in accordance with
Article 810 of the Civil Code which provides that in the holographic will, it should provide the Day, month, and year
the will was executed.

ISSUE:
-W/N the Date "FEB./61" appearing on the holographic will of the deceased Bibiana R. De Jesus is a valid
compliance with the Article 810 of the Civil Code.

HELD/RULING:
- Yes, as a general rule, the "date" in a Holographic Will should be 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" 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.

- There is no question that the holographic will of the deceased Bibiana R. de Jesus was entirely written, dated and
signed by her, in the language of which she known. All of her children agreed on the genuineness of the
Holographic Will of their mother.

19 Azaola v. 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 testatrix’s 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 testatrix’s signature were also exhibited for comparison purposes.

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.

ISSUE:
W/N Article 811 of the Civil Code is mandatory or permissive.
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 can not 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 2nd 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.

20 Codoy v. Calugay
FACTS: On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seño Vda. de Ramonal, filed a petition for probate of the said will. They
attested to the genuineness and due execution of the will on 30 August 1978.

Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that the will was a forgery and that
the same is even illegible. They raised doubts as regards the repeated appearing on the will after every disposition,
calling the same out of the ordinary. If the will was in the handwriting of the deceased, it was improperly procured.

Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence.

The first witness was the clerk of court of the probate court who produced and identified the records of the case
bearing the signature of the deceased.
The second witness was election registrar who was made to produce and identify the voter’s affidavit, but failed to
as the same was already destroyed and no longer available.

The third, the deceased’s niece, claimed that she had acquired familiarity with the deceased’s signature and
handwriting as she used to accompany her in collecting rentals from her various tenants of commercial
buildings and the deceased always issued receipts. The niece also testified that the deceased left a holographic will
entirely written, dated and signed by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate proceedings of her late husband, who said
that the signature on the will was similar to that of the deceased but that he can not be sure.

The fifth was an employee of the DENR who testified that she was familiar with the signature of
the deceased which appeared in the latter’s application for pasture permit. The fifth, respondent Evangeline
Calugay, claimed that she had lived with the deceased since birth where she had become familiar with her
signature and that the one appearing on the will was genuine.

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

ISSUE:
1. W/N Article 811 of the Civil Code, providing that at least three witnesses explicitly declare the signature in
a contested will as the genuine signature of the testator, is mandatory or directory.

2. Whether or not the witnesses sufficiently establish the authenticity and due execution of the deceased’s
holographic will.

HELD:
1. YES. The word “shall” connotes a mandatory order, an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word“shall”, when used in a statute, is mandatory.

In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the
wishes of the testator.

The paramount consideration in the present petition is to determine the true intent of the deceased.

2. NO. We cannot be certain that the holographic will was in the handwriting of the deceased.

The clerk of court was not presented to declare explicitly that the signature appearing in the holographic will was
that of the deceased.

The election registrar was not able to produce the voter’s affidavit for verification as it was no longer available.

The deceased’s niece saw pre-prepared receipts and letters of the deceased and did not declare that she saw the
deceased sign a document or write a note.

The will was not found in the personal belongings of the deceased but was in the possession of the said niece, who
kept the fact about the will from the children of the deceased, putting in issue her motive.

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

The former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will.

(As it appears in the foregoing, the three-witness requirement was not complied with.)

A visual examination of the holographic will convinces that the strokes are different when compared with other
documents written by the testator.

The records are remanded to allow the oppositors to adduce evidence in support of their opposition.

The object of solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise the right to make
a will.

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which
is why if the holographic will is contested, the law requires three witnesses to declare that the will was in the
handwriting of the deceased.

Article 811, paragraph 1. provides: “In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.”
The word “shall” connotes a mandatory order, an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word“shall”, when used in a statute, is mandatory.

21 Kalaw v. Relova (1984) [125]

Effect of non-compliance.
· Issue: whether the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for
lack of authentication by full signature of the testatrix, should be probated or not.
· Velasco v. Lopez: when a number of erasures, corrections, and interlineations made by the testator in a holographic
will have not been noted under his signature, the will is not thereby invalidated as a whole, but at most only as respects
the particular words, erased, 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 lay by affixing her full signature.
· Velasco ruling 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.

What are the effects of insertions or interpolations made by a 3rd person?

General Rules:

When a number of erasures, corrections, cancellation, or insertions are made by the testator in the will but the same
have not been noted or authenticated with his full signature, only the particular words erased, corrected, altered will be
invalidated, not the entirety of the will.
Exception:
1. Where the change affects the essence of the will of the testator; Note: When the holographic will had only one
substantial provision, which was altered by substituting the original heir with another, and the same did not carry the
requisite full signature of the testator, the entirety of the will is voided or revoked.
Reason: What was cancelled here was the very essence of the will; it amounted to the revocation of the will. Therefore,
neither the altered text nor the original unaltered text can be given effect. (Kalaw v. Relova, G.R. No. L-40207, Sept. 28,
1984)
2. Where the alteration affects the date of the will or the signature of the testator.
3. If the words written by a 3rd person were contemporaneous with the execution of the will, even though
authenticated by the testator, the entire will is void for violation of the requisite that the holographic will must be
entirely in the testator’s handwriting.

Kalaw v. Relova
G.R. No. L-40207 September 28, 1984
Melencio-Herrera, J. (Ponente)
Facts:
1. Gregorio Kalaw, the private respondent, claiming to be the sole heir of sister Natividad, filed a peition for probate of
the latter's holographic will in 1968. The will contained 2 alterations: a) Rosa's name, designated as the sole heir was
crossed out and instead "Rosario" was written above it. Such was not initialed, b) Rosa's name was crossed out as sole
executrix and Gregorio's ma,e was written above it. This alteration was initialed by the testator.
2. Rosa contended that the will as first written should be given effect so that she would be the sole heir. The lower court
denied the probate due to the unauthenticated alterations and additions.
Issue: Whether or not the will is valid
RULING: No, the will is voided or revoked since nothing remains in the will which could remain valid as there was only
one disposition in it. Such was altered by the substitution of the original heir with another. To rule that the first will
should be given effect is to disregard the testatrix' change of mind. However, this change of mind cannot be given effect
either as she failed to authenticate it in accordance with Art. 814, or by affixing her full signature.
 22 Gonzales v. CA
Facts:
1. Petitioner Rizalina Gonzales and Lutgarda Santiago (Private respondent) are the nieces of the deceased Isabel
Gabriel who died a widow. A will was thereafter submitted to probate. The said will was typewritten, in Tagalog
and appeared to have been executed in April 1961 or two months prior to the death of Isabel. It consisted of 5
pages including the attestation and acknowledgment, with the signature of testatrix on page 4 and the left margin
of all the pages.

2. Lutgarda was named as the universal heir and executor. The petitioner opposed the probate.

3. The lower court denied the probate on the ground that the will was not executed and attested in accordance
with law on the issue of the competency and credibility of the witnesses.

Issue: Whether or not the credibility of the subscribing witnesses is material to the validity of a will

RULING: No. The law requires only that witnesses posses the qualifications under Art. 820 (NCC) and none of the
disqualifications of Art. 802. There is no requirement that they are of good standing or reputation in the
community, for trustworthiness, honesty and uprightness in order that his testimony is believed and accepted in
court. For the testimony to be credible, it is not mandatory that evidence be established on record that the
witnesses have good standing in the the community. Competency is distinguished from credibility, the former
being determined by Art. 820 while the latter does not require evidence of such good standing. Credibility depends
on the convincing weight of his testimony in court.