FORMS OF WILLS

1. Payad v. Tolentino

G.R. No. 42258, 5 September 1936, 62 Phil 848

FACTS:

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

ISSUE:

Was it necessary that the attestation clause state that the testatrix caused Atty. Almario to write her name
at her express direction?

RULING:

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

2. Garcia v. Lacuesta

G.R. No. L-4067, 29 November 1951, 90 Phil 489

FACTS:

Antero Mercado left a will dated January 3, 1943. The will appears to have been signed by Atty. Florentino
Javier as he wrote the name of Antero Mercado and his name for the testatior on the will. HOWEVER,
immediately after Antero Mercado’s will, Mercado himself placed an “X” mark.
The attestation clause was signed by three instrumental witnesses. Said attestation clause states that all
pages of the will were “signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.” The attestation clause however
did not indicate that Javier wrote Antero Mercado’s name.

ISSUE:
Whether or not the will is valid.

HELD:

No. The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator’s name under his express direction, as required by Section 618 of
the Code of Civil Procedure. 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.

3. Barut v. Cabacungan

G.R. No. L-6285, 15 February 1912, 21:461

FACTS:

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

The probate court found that the will was not entitled to probate because “the handwriting of the person
who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will than to the person whose handwriting it was alleged
to be.

ISSUE:

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

HELD:

No. The name of a person who is unable to write may be signed by another by express direction to any
instrument known to the law. There is no necessity whatever, so far as the validity of the instrument is
concerned, for the person who writes the name of the principal in the document to sign his own name
also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as
would enable a person proving the document to demonstrate more readily the execution by the principal.
But as a matter of essential validity of the document, it is unnecessary. The main thing to be established
in the execution of the will is the signature of the testator. If that signature is proved, whether it be written
by himself or by another at his request, it is none the less valid, and the fact of such signature can be
proved as perfectly and as completely when the person signing for the principal omits to sign his own
name as it can when he actually signs. To hold a will invalid for the lack of the signature of the person
signing the name of the principal is, in the particular case, a complete abrogation of the law of wills, as it
rejects and destroys a will which the statute expressly declares is valid.

4. Icasiano v. Icasiano Digest

Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964
Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his appointment as
executor thereof. It appears from the evidence that the testatrix died on September 12, 1958. She
executed a will in Tagalog, and through the help of her lawyer, it was prepared in duplicates, an original
and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only brought the original copy of the will
while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign one of the
pages in the original copy but admitted he may have lifted 2 pages simultaneously instead when he
signed the will. Nevertheless, he affirmed that the will was signed by the testator and other witnesses in
his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to a
page is sufficient to deny probate of the will

RULING: No, the failure to sign was entirely through pure oversight or mere inadvertence. Since the
duplicated bore the required signatures, this proves that the omission was not intentional. Even if the
original is in existence, a duplicate may still be admitted to probate since the original is deemed to be
defective, then in law, there is no other will bu the duly signed carbon duplicate and the same can be
probated.

The law should not be strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she has no control of. Where the purpose of the law
is to guarantee the identity of the testament and its component pages, and there is no intentional or
deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules that the will should be signed by
the witnesses on every page. The carbon copy duplicate was regular in all respects.

42 Phil. 180

[ G. R. No. 16008, September 29, 1921 ]

5. IN RE WILL OF THE DECEASED LUCINA ANDRADA. LUCILA ARCE,

PETITIONER AND APPELLANT.

DECISION

STREET, J.:
Lucina Andrada died on June 5, 1919, in the Municipality of Capiz, Province of Capiz; and soon thereafter
a petition was presented to the Court of First Instance of Capiz by Lucila Arce to establish a document
purporting to be the last will and testament of the deceased. Upon hearing the petition, his Honor, Judge
Antonio Villareal, declared that the document in question had not been executed in conformity with the
requirements of section 618 of the Code of Civil Procedure, as amended by Act No. 2645 of the Philippine
Legislature. He therefore refused to admit the purported will to probate, and the petitioner appealed.
The attesting clause of the will in question is incorporated in the will itself, constituting the last paragraph
thereof; and its defect consists in the fact that it does not state the number of sheets or pages upon which
the will is written, though it does state that the testatrix and the instrumental witnesses signed on every
page, as is in fact obvious from an inspection of the instrument. Each of the pages moreover bears
successively the Visayan words, "isa," "duha," "tatlo," "apat," "lima," which mean respectively "one," "two,"
"three," "four," "five," Visayan being the dialect in which the instrument is written.
By section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is required that each and
every page of the will shall be numbered correlatively in letters and that the attesting clause shall state the
number of sheets or pages used.
Without deciding in this case whether the will in question is rendered invalid by reason of the manner in
which the pages are numbered, the court is unanimous upon the point that the defect pointed out in the
attesting clause is fatal. The law plainly says that the attestation shall state the number of sheets or pages
used, the evident purpose being to safeguard the document from the possibility of the interpolation of
additional pages or the omission of some of the pages actually used. It is true that this point is also
safeguarded by the other two requirements that the pages shall be consecutively lettered and that each
page shall be signed on the left margin by the testator and the witnesses.
In the light of these requirements it is really difficult to see any practical necessity for the additional
requirement that the attesting clause shall state the number of sheets or pages used. Nevertheless, it
cannot be denied that the last mentioned requirement affords additional security against the danger that
the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be
considered material.
In two cases we have held that the failure to comply with the strict requirements of this law does not
invalidate the instrument, but the irregularities presented in those cases were entirely trivial, the defect in
one case being that a will in which the dispositive part consisted of a single sheet was not signed in the
margin in addition to being signed at the bottom (In re will of Abangan, 40 Phil., 476); in the other, that the
pages comprising the body of the will were signed by the testator and witnesses on the right margin
instead of the left (Avera vs.Garcia and Rodriguez, p. 145, ante). In the case now before us the defect is,
in our opinion, of more significance; and the rule here applicable is that enunciated in
Caraig vs. Tatlonghari, R. G. No. 12558, decided March 23, 1918, not reported, and In re estate of
Saguinsin, 41 Phil., 875), in each of which the will was held to be invalid.
It results that the trial judge did not err in refusing probate of the will, and the judgment must be affirmed.
It is so ordered, with costs against the appellant.
Johnson, Araullo, Avancena, and Villamor, JJ., concur

6. Testate Estate of Cagro v. Cagro Digest

Testate Estate of Cagro vs. Cagro
G.R. L-5826

Facts:

1. The case is an appeal interposed by the oppositors from a decision of the CFI of Samar which admitted
to probate a will allegedly executed by Vicente Cagro who died in Pambujan, Samar on Feb. 14, 1949.
2. The appellants insisted that the will is defective because the attestation was not signed by the
witnesses at the bottom although the page containing the same was signed by the witnesses on the left
hand margin.

3. Petitioner contended that the signatures of the 3 witnesses on the left hand margin conform
substantially to law and may be deemed as their signatures to the attestation clause.

Issue: Whether or not the will is valid

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

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

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

The probate of the will is denied.

DISSENTING

BAUTISTA ANGELO, J.,

I dissent. In my opinion the will in question has substantially complied with the formalities of the law and,
therefore, should be admitted to probate. It appears that the will was signed by the testator and was
attested by three instrumental witnesses, not only at the bottom, but also on the left-hand margin. The
witnesses testified not only that the will was signed by the testator in their presence and in the presence
of each other but also that when they did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by the oppositors to the validity of the will
is the fact that the signatures of the instrumental witnesses do not appear immediately after the
attestation clause.

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this
court said that when the testamentary dispositions "are wholly written on only one sheet signed at the
bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said
sheet would be completely purposeless." In such a case, the court said, the requirement of the
signatures on the left hand margin was not necessary because the purpose of the law-which is to avoid
the substitution of any of the sheets of the will, thereby changing the testator's dispositions-has already
been accomplished. We may say the same thing in connection with the will under consideration because
while the three instrumental witnesses did not sign immediately after the attestation clause, the fear
entertained by the majority that it may have been only added on a subsequent occasion and not at the
signing of the will, has been obviated by the uncontradicted testimony of said witnesses to the effect that
such attestation clause was already written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:

"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 already given assures such
ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded." (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills,
the purpose of which, in case of doubt, is to give such interpretation that would have the effect of
preventing intestacy (articles 788 and 791, New Civil Code).

I am therefore of the opinion that the will in question should be admitted to probate.

Feria, J., concurs.

DISSENTING

TUASON, J.,

I concur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously
sets down as a fact that the attestation clause was not signed, when the witnesses signatures appear on
the left margin and the real and only question is whether such signatures are legally sufficient.

The only answer, in our humble opinion, is yes. The law on wills does not provide that the attesting
witness should sign the clause at the bottom. In the absence of such provision, there is no reason why
signatures on the margin are not good. A letter is not any the less the writer's simply because it was
signed, not at the conventional place but on the side or on top.

7. Javellana v. Ledesma Digest

Javellana vs. Ledesma

G.R. No. L-7179

Facts:

1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Ledesma in
July 1953. This testament was deemed executed on May 1950 and May 1952. The contestant was the
sister and nearest surviving relative of the deceased. She appealed from this decision alleging that the
will were not executed in accordance with law.
2. The testament was executed at the house of the testatrix. One the other hand, the codicil was executed
after the enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a notary
public. Now, the contestant, who happens to be one of the instrumental witnesses asserted that after the
codicil was signed and attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it
on the same occasion. Gimotea, however, said that he did not do so, and that the act of signing and
sealing was done afterwards.

2. One of the allegations was that the certificate of acknowledgement to the codicil was signed
somewhere else or in the office of the notary. The ix and the witnesses at the hospital, was signed and
sealed by the notary only when he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the absence of the testator
and witnesses affects the validity of the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the
testator, the witnesses and the notary be accomplished in one single act. All that is required is that every
will must be acknowledged before a notary public by the testator and witnesses. The subsequent signing
and sealing is not part of the acknowledgement itself nor of the testamentary act. Their separate
execution out of the presence of the testator and the witnesses cannot be a violation of the rule that
testaments should be completed without interruption.

8. Cruz v. Villasor
54 SCRA 752

FACTS:

The CFI of Cebu allowed the probate of Valente Z. Cruz’s 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.

9. YAP TUA v. YAP CA KUAN and YAP CA KUAN

G.R. No. 6845 September 1, 1914
JOHNSON, J.

FACTS:
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.
Accompanying said petition and attached thereto was the alleged will of the deceased. The will was
signed by the deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Gabriel La O, as guardian ad litem of Yap Ca Kuan and Yap Ca Llu, appeared in court and presented a
motion in which he alleged that the will which was admitted to probate by order of the court was null, for
the following reasons:
(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.
(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.
(c) Because her signature to the will had been obtained through fraud and illegal influence upon the part
of persons who were to receive a benefit from the same, and because the said Tomasa Elizaga Yap
Caong had no intention of executing the same.

Allegedly, Tomasa was in another room different from that in which the will was written and the will was
not written in the presence of Tomasa.

ISSUE:
Whether or not the requirement of having the will signed by the testator in the presence of the witnesses
was met

HELD:
Yes. A plan of the room or rooms in which the will was signed was presented as proof and it was shown
that there was but one room; that one part of the room was one or two steps below the floor of the other;
that the table on which the witnesses signed the will was located upon the lower floor of the room. It was
also shown that from the bed in which Tomasa was lying, it was possible for her to see the table on which
the witnesses signed the will. While the rule is absolute that one who makes a will must sign the same in
the presence of the witnesses and that the witnesses must sign in the presence of each other, as well as
in the presence of the one making the will, yet, nevertheless, the actual seeing of the signatures made is
not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary
parties if they desire to see, may see the signatures placed upon the will.
10. Abangan v. Abangan, 40 Phil 476,
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.

Whether or not the will was duly admitted to probate.

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.

11. TESTACY OF SIXTO LOPEZ. JOSE S. LOPEZ, PETITIONER AND APPELLEE,

VS. AGUSTIN LIBORO, OPPOSITOR AND APPELLANT.

DECISION
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what
purports to be the last will and testament (Exh. "A") of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the document in question was executed. In
the court below, the present appellant specified five grounds for his opposition, to wits (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.
In this instance only one of these objections is reiterated, formulated in these words: "That the court a
quo erred in holding that the document Exhibit 'A' was executed in all particulars as required by law". To
this objection is added the alleged error of the court "in allowing the petitioner to introduce evidence that
Exhibit 'A' was written in a language known to the decedent after petitioner rested his case and over the
vigorous objection of the oppositor."
The will in question comprises two pages, each of which is written on one side of a separate sheet. The
first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of
preventing the substitution or of detecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil.
476) 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 numeral 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 "TESTANENTO", the invocation of the Almighty, and a recital
that the testator was in the full use of his testamentary faculty, all of which, in the logical order of
sequence, precede the direction for the disposition of the maker'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.
Abangan vs. Abgangan, supra, and Fernandez vs.Vergel de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error, the matter of the
credibility of the witnesses is assailed under this heading. On the merits we do not believe that the
appellant's contention deserves serious consideration. Such contradictions in the testimony of the
instrumental witnesses as are set out in the appellant's brief are incidents, not all of which every one of
the witnesses can be supposed to have perceived, or to recall in the same order in which they occured.
"Everyday life and the result of investigations made in the field of experimental psychology show that the
contradictions of witnesses generally occur in the details of a certain incident, after a long series of
questionings, and far from being an evidence of falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in
relating their impressions they should not agree in the minor details; hence, the contradictions in their
testimony." (People vs. Limbo, 49 Phil. 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. Ihe 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. (De Gala vs. Gonzales and Ona, 53 Phil. 108; 28
R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion that the trial court
committed an abuse of discretion in allowing the appellant to offer evidence to prove knowledge of
Spanish by the testator, the language in which the will is drawn, after the petitioner had rested his case
and after the opponent had moved for dismissal of the petition on the ground of insufficiency of evidence.
It is within the discretion of the court whether or not to admit further evidence after the party offering the
evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. (64
C. J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case to by
reopened for the further introduction of evidence after' a motion or request for a nonsuit, or a demurrer to
the evidence, and the case may be reopened after the court has announced its intention as to its ruling on
the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been
granted, if the order has not been written, or entered upon the minutes or signed.(64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their respective direct
proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its
ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong &
Co. vs.Ylagan, 43 Phil. 393; U. S. vs. Alviar, 36 Phil. 804.) So, generally, additional evidence is allowed
when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the
purpose of the evidence is to correct evidence previously offered. (I Moran's Comments on the Rules of
Court, 2nd ed., 545; 64 C. J., 160-163.) The ommission to present evidence on the testator's knowledge
of Spanish had not been deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will for its silence on the
testator's understanding of the language used in the testament. 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. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil. 781, in which the probate ftof a will
written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was
not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region,
from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect."
The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is
affirmed, costs.
Paras, Actg. C.J., Pablo, Perfecto, Bengzon, Briones, and Padilla, JJ., concur.

12. GARCIA v. LACUESTA, ET AL

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.
A will was executed by Antero Mercado wherein it appears that it was signed by Atty. Florentino Javiwe
who wrote the name of Antero. The testator was alleged to have written a cross immediately after his
name. The Court of First Instance found that the will was valid but the Court of Appeals reversed the
lower court’s decision holding that the attestation clause failed: 1) to certify that the will was signed on all
the left margins of the three pages and at the end of the will by Atty. Javier at the express request of the
testator in the presence of the testator and each and every one of the witnesses; 2) to certify that after the
signing of the name of the testator by Atty. Javier at the former’s request said testator has written a cross
at the end of his name and on the left margin of the three pages of which the will consists and at the end
thereof 3) to certify that the witnesses signed the will in all the pages thereon in the presence of the
testator and of each other. Hence, this appeal.

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.

13. Taboada v. Rosal, G.R. No. L-36033,

November 5, 1982.
[GUTIERREZ, JR., J.]
FACTS
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and
testament of the late 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. The
second page which 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.

ISSUE
Whether or not the will is void for failure to state the number of pages used in writing the will.

RULING
NO. 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. [T]he first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left
margin. The other page which is marked as “Pagina dos” comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that “This Last Will and Testament consists of two
pages including this page”.

14. Nera v. Rimando (Test of Presence)

G.R. No. L-5971
February 27, 1911

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.
ISSUE:
What is the true test of the testator’s or the witness’ presence in the signing of a will?
HELD:
The Supreme Court emphasized that the true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but whether they might have seen
each other sign, had they chosen to do so, considering their mental and physical condition and position
with relation to each other at the moment of inscription of each signature.
The position of the parties with relation to each other at the moment of the subscription of each signature,
must be such that they may see each other sign if they choose to do so.
The Supreme Court, in this case, determined that all the parties were in the same small room when each
other signed. Hence, they were in each other’s presence (though the facts of the case didn’t elaborate –
the SC just ruled so). The SC ruled that if some of the witnesses were really in the outer room (a fact
which was not established according to the SC) separated by a curtain, then the will is invalid, the
attaching of those signatures under circumstances not being done “in the presence” of the witness in the
outer room.
*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.

15. De Gala v Gonzales and Ona GR 30289 26 Mar 1929

Gonzales (testator), instead of signing, placed her thumb-mark on the proper places in the will.
When she died, De Gala (testator’s niece) presented the will for probate. Apolinario (testator’s
nephew) opposed the probate because the will allegedly did not comply with the formal
requirements mandated by the law.
ISSUE: Whether or not the requirement that the will be “signed” has been satisfied if the signature
is made by the testator’s thumbark. YES
When the law says that the will shall be ‘signed’ by the testator, or testatrix, the law is fulfilled not
only by the customary written signature but by the testator or testatrix’ thumb-mark. A signature
requiring a will to be ‘signed’ is satisfied if the signature is made by the testator’s mark.
Signing by thumb mark, although not stated in the attestation clause, but explained in the last
clause of the body of the will, is valid.
It may be conceded that the attestation clause does not, standing alone, meet the requirements
of the statute, but taken in connection with the last clause of the body of the will, it is fairly clear
and sufficiently carries out the legislative intent.
FACTS:
 Gonzales executed a will in which De Gala, her niece, was designated executrix.
Gonzales died leaving no heirs by force of law.
 De Gala presented the will for probate. Apolinario, a nephew of the deceased, filed an
opposition to the will on the ground that it had not been executed in conformity with the
provisions of section 618 of the Code of Civil Procedure.
 The court declared the will valid and admitted it to probate.
 Appellant Apolinario argue that the will in question was not executed in the form
prescribed by section 618 of the Code of Civil Procedure
1
.
 The principal points raised by the appeal are:
(1) that the person requested to sign the name of the testatrix signed only the
latter's name and not her own;
(2) that the attestation clause does not mention the placing of the thumb-mark of the testatrix in the will;
and

(3) that the fact that the will had been signed in the presence of the witnesses
was not stated in the attestation clause but only in the last paragraph of the body of the
will.
ISSUE:
 WON the principal points stated above will invalidate the will – NO!
HELD:
 The orders appealed from are hereby affirmed without costs. So ordered.
RATIO:
 The law provides that ‘the testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page
thereof, on the left margin . . ..'
 There is, however, an entirely different view which can be taken of the situation. This is
that the testatrix placed her thumb-mark on the will in the proper places.
 When, therefore, the law says that the will shall be 'signed' by the testator or testatrix, the
law is fulfilled not only by the customary written signature but by the testator or testatrix'
thumb-mark. The construction put upon the word 'signed' by most courts is the original
meaning of a signum or sign, rather than the derivative meaning of a sign manual or
handwriting.
 A statute requiring a will to be 'signed' is satisfied if the signature is made by the testator's
mark.
 With regard to the second and third points, it is not mentioned in the attestation clause
that the testatrix signed by thumb-mark, but it does there appear that the signature was
affixed in the presence of the witnesses, and the form of the signature is sufficiently
described and explained in the last clause of the body of the will.
 It maybe conceded that the attestation clause is not artistically drawn and that, standing
alone, it does not quite meet the requirements of the statute, but taken in connection with
the last clause of the body of the will, it is fairly clear and sufficiently carries out the
legislative intent; it leaves no possible doubt as to the authenticity of the document.
 The contention of the appellants Sinforoso and Apolinario that the fact that the will had
been signed in the presence of the witnesses was not stated in the attestation clause is
without merit; the fact is expressly stated in that clause

16. GERMAN JABONETA, PLAINTIFF AND APPELLANT, VS. RICARDO GUSTILO

ET AL., DEFENDANTS AND APPELLEES. [ G.R. No. 1641, January 19, 1906 ]

DECISION

CARSON, J.:
In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased,
because the loAver court was of the opinion from the evidence adduced at the hearing that Julio
Javellana, one of the witnesses, did not attach his signature thereto in the presence of Isabelo Jena,
another of the witnesses, as required by the provisions of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particular point, being a part of the
testimony of the said Isabelo Jena:
"Q. Who first signed the will? A. I signed it first, and afterwards Aniceto and the others.
"Q. Who were those others to whom you have just referred? A. After the witness Aniceto signed the will I
left the house, because I was in a hurry, and at the moment when I was leaving I saw Julio Javellana with
the pen in his hand in position ready to sign (en actitud de firmar). I believe he signed, because he was at
the table. * * *
"Q. State positively whether Julio Javellana did or did not sign as a witness to the will. A. I can't say
certainly, because as I was leaving the house I saw Julio Javellana with the pen in his hand, in position
ready to sign. I believe he signed.
"Q. Why do you believe Julio Javellana signed? A. Because he had the pen in his hand, which was
resting on the paper, though I did not actually see him sign.
"Q. Explain this contradictory statement. A. After I signed I asked permission to leave, because I was in a
hurry, and while I was leaving Julio had already taken the pen in his hand, as it appeared, for the purpose
of signing, and when I was near the door I happened to turn my face and I saw that he had his hand with
the pen resting on the will, moving it as if for the purpose of signing.
"Q. State positively whether Julio moved his hand with the pen as if for the purpose of signing, or whether
he was signing. A. I believe he was signing." The truth and accuracy of the testimony of this witness does
not seem to have been questioned by any of the parties to the proceedings, but the court, nevertheless,
found the following facts:
"On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the
document in question, which has been presented for probate as his will:
"Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in
question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses,
executed the said document as his will. They were all together, and were in the room where Jaboneta
was, and were present when he signed the document, Isabelo Jena signing afterwards as a witness, at
his request, and in his presence and in the presence of the other two witnesses. Aniceto Jalbuena then
signed as a witness in the presence of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the
room. As he was leaving the house Julio Javellana took the pen in his hand and put himself in position to
sign the will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena
had left the room the said Julio Javellana signed as a witness in the presence of the testator and of the
witness Aniceto Jalbuena."
We can not agree with so much of the above finding of facts as holds that the signature of Javellana was
not signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil
Procedure. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in
the act of affixing his signature to the will, taken together with the testimony of the remaining witnesses,
which shows that Javellana did in fact there and then sign his name to the will, convinces us that the
signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back
was turned while a portion of the name of the witness was being written, is of no importance. He, with the
other witnesses and the testator, had assembled for the purpose of executing the testament, and were
together in the same room for that purpose, and at the moment when the witness Javellana signed the
document he was actually and physically present and in such position with relation to Javellana that he
could see everything which took place by merely casting his eyes in the proper direction, and without any
physical obstruction to prevent his doing so, therefore we are of opinion that the document was in fact
signed before he finally left the room.
"The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be
that the testator may have ocular evidence of the identity of the instrument subscribed by the witness and
himself, and the generally accepted tests of presence are vision and mental apprehension. (Hee Am. &
Eng. Enc. of Law, vol. 30, p. 599, and cases there, cited.)"
In the matter of Bedell (2 Connoly (N. Y.), 328) it was held that it is sufficient if the witnesses are together
for the purpose of witnessing the execution of the will, and in a position to actually see the testator write, if
they choose to do so; and there are many cases which lay down the rule that the true test of vision is not
whether the testator actually saw the witness sign, but whether he might have seen him sign, considering
his mental and physical condition and position at the time of the subscription. (Spoonemore vs. Cables,
66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between the testator and the
witnesses are equally applicable in determining whether the witnesses signed the instrument in the
presence of each other, as required by the statute, and applying them to the facts proven in these
proceedings we are of opinion that the statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to the will on the ground stated in the
ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should
therefore be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days
the record will be returned to the court from whence it came, where the proper orders will be entered in
conformance herewith. So ordered.
Arellano C. J., Torres, Mapa, and Johnson, JJ., concur.

17. Ortega v. Valmonte

G.R. No. 157451, 16 December 2005, 478 SCRA 247

FACTS:

Two years after the arrival of Placido from the United States and at the age of 80 he wed Josefina who
was then 28 years old. But in a little more than two years of wedded bliss, Placido died. Placido executed
a notarial last will and testament written in English and consisting of 2 pages, and dated 15 June 1983¸but
acknowledged only on 9 August 1983. The allowance to probate of this will was opposed by Leticia,
Placido’s sister. According to the notary public who notarized the testator’s will, after the testator
instructed him on the terms and dispositions he wanted on the will, the notary public told them to come
back on 15 August 1983 to give him time to prepare. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were instructed by his wife to come back on
9 August 1983. The formal execution was actually on 9 August 1983. He reasoned he no longer changed
the typewritten date of 15 June 1983 because he did not like the document to appear dirty.

Petitioner’s argument:
1. At the time of the execution of the notarial will Placido was already 83 years old and was no longer of
sound mind.
2. Josefina conspired with the notary public and the 3 attesting witnesses in deceiving Placido to sign it.
Deception is allegedly reflected in the varying dates of the execution and the attestation of the will.

ISSUE:

1. W/N Placido has testamentary capacity at the time he allegedly executed the will.
2. W/N the signature of Placido in the will was procured by fraud or trickery.

HELD:

1. YES. Despite his advanced age, he was still able to identify accurately the kinds of property he owned,
the extent of his shares in them and even their location. As regards the proper objects of his bounty, it
was sufficient that he identified his wife as sole beneficiary. The omission of some relatives from the will
did not affect its formal validity. There being no showing of fraud in its execution, intent in its disposition
becomes irrelevant.

2. NO. Fraud is a trick, secret devise, false statement, or pretense, by which the subject of it is cheated. It
may be of such character that the testator is misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some extrinsic fact, in consequence of the deception
regarding which the testator is led to make a certain will which, but for fraud, he would not have made.
The party challenging the will bears the burden of proving the existence of fraud at the time of its
execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of
credible evidence of fraud.

Omission of some relatives does not affect the due execution of a will. Moreover, the conflict between the
dates appearing on the will does not invalidate the document, “because the law does not even require
that a notarial will be executed and acknowledged on the same occasion. The variance in the dates of the
will as to its supposed execution and attestation was satisfactorily and persuasively explained by the
notary public and instrumental witnesses.

18. AZUELA v. COURT OF APPEALS

A will whose attestation clause does not contain the number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective.
And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is
fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects
is just aching for judicial rejection.
FACTS:
Felix Azuela filed a petition with the trial court for the probate of a notarial will purportedly executed by
Eugenia E. Igsolo on June 10, 1981 and notarized on the same day. The will consisted of two (2) pages
and was written in Filipino. The attestation clause did not state the number of pages and it was not signed
by the attesting witnesses at the bottom thereof. The said witnesses affixed their signatures on the left-
hand margin of both pages of the will though. Geralda Castillo opposed the petition, claiming that the will
was a forgery. She also argued that the will was not executed and attested to in accordance with law. She
pointed out that the decedent’s signature did not appear on the second page of the will, and the will was
not properly acknowledged.
The trial court held the will to be authentic and to have been executed in accordance with law and, thus,
admitted it to probate, calling to fore “the modern tendency in respect to the formalities in the execution of
a will…with the end in view of giving the testator more freedom in expressing his last wishes.” According
to the trial court, the declaration at the end of the will under the sub-title, “Patunay Ng Mga Saksi,”
comprised the attestation clause and the acknowledgement, and was a substantial compliance with the
requirements of the law. It also held that the signing by the subscribing witnesses on the left margin of the
second page of the will containing the attestation clause and acknowledgment, instead of at the bottom
thereof, substantially satisfied the purpose of identification and attestation of the will. The Court of
Appeals, however, reversed the trial court’s decision and ordered the dismissal of the petition for probate.
It noted that the attestation clause failed to state the number of pages used in the will, thus rendering the
will void and undeserving of probate.
Azuela argues that the requirement under Article 805 of the Civil Code that “the number of pages used in
a notarial will be stated in the attestation clause” is merely directory, rather than mandatory, and thus
susceptible to what he termed as “the substantial compliance rule.”
ISSUE:
Whether or not the subject will complied with the requirements of the law and, hence, should be admitted
to probate.
HELD:
The petition is DENIED.
A will whose attestation clause does not contain the number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective.
And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is
fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects
is just aching for judicial rejection.
Prior to the New Civil Code, the statutory provision governing the formal requirements of wills was Section
618 of the Code of Civil Procedure. Extant therefrom is the requirement that the attestation state the
number of pages of the will. The enactment of the New Civil Code put in force a rule of interpretation of
the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed the said Section 618. Article 809 of the Civil Code, the Code Commission opted
to recommend a more liberal construction through the “substantial compliance rule.” However, Justice
J.B.L. Reyes cautioned that the rule “must be limited to disregarding those defects that can be supplied
by an examination of the will itself: whether all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the subscribing witnesses are three or the will was
notarized…But the total number of pages, and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation clause, being the only check against perjury in
the probate proceedings.” The Court suggested in Caneda v. Court of Appeals (G.R. No. 103554, May 28,
1993, 222 SCRA 781): “the rule, as it now stands, is that omission which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed.
However, those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself.”
The failure of the attestation clause to state the number of pages on which the will was written remains a
fatal flaw, despite Art. 809. This requirement aims at safeguarding the will against possible interpolation or
omission of one or some of its pages and thus preventing any increase or decrease in the pages.
Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it
how many pages it is comprised of, as was the situation in Singson and Taboada. In this case, however,
there could have been no substantial compliance with the requirements under Art. 805 of the Civil Code
since there is no statement in the attestation clause or anywhere in the will itself as to the number of
pages which comprise the will. There was an incomplete attempt to comply with this requisite, a space
having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was
never filled in.
The subject will cannot be considered to have been validly attested to by the instrumental witnesses.
While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause. Art. 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will, from the requisite that the will be attested and
subscribed by them. The signatures on the left-hand corner of every page signify, among others, that the
witnesses are aware that the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to the statements contained
in the attestation clause itself. An unsigned attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly different avowal.
The notary public who notarized the subject will wrote, “Nilagdaan ko at ninotario ko ngayong 10 ng
Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.” By no manner of contemplation can these words be
construed as an acknowledgment. An acknowledgment 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 might be possible to
construe the averment as a jurat, even though it does not follow 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.
It may not have been said before, but a notarial will that is not acknowledged before a notary public by the
testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
The importance of the requirement of acknowledgment is highlighted by the fact that it had been
segregated from the other requirements under Art. 805 and entrusted into a separate provision, Art. 806.
The express requirement of Art. 806 is that the will be “acknowledged”, and not merely subscribed and
sworn to. The acknowledgment coerces the testator and the instrumental witnesses to declare before an
officer of the law that they had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons
who participate in the execution of spurious wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator is of certain mindset in making the
testamentary dispositions to those persons he/she had designated in the will.
DEFECTS:
(1) AC did not state number of pages
(2) Witnesses did not sign the AC
(3) No acknowledgment by a notary
(4) No signature of the testator in each and every page
(5) Pages were not numbered consecutively

20. Labrador v. CA
G.R. Nos. 83843-44, 5 April 1990, 184 SCRA 170

FACTS:
The deceased Melecio Labrador, left behind him a parcel of land which was partitioned among his nine
heirs through a holographic will. Sagrado, therefore, one of his heirs, filed a petition for the probate of the
alleged holographic will of the late Melecio Labrador. However, Jesus and Gaudencio, also heirs of the
deceased, filed n opposition to the petition on the ground that the will has been extinguished or revoked
by implication of law alleging therein that before Melecio’s death, he executed a Deed of Absolute Sale,
selling, transferring and conveying in favor of Jesus and Gaudencio the parcel of land.

The trial court allowed the probate of the holographic will and declared null and void the Deed of Sale.
Jesus and Gaudencio appealed to the Court of Appeals which modified the decision of the trial court. It
denied the allowance of the probate of the will being undated. The aggrieved party, therefore, filed a
petition to the Supreme Court alleging among others that the CA erred in not allowing the probate
proceedings withstanding the fact that in the first paragraph of the second page of the alleged holographic
will, which was written in Illocano, the testator mentioned a date – “month of March, 17th, 1968.

ISSUE:

Whether or not the holographic is dated.

RULING:

The Supreme Court ruled in the affirmative. The will has been dated in the hands of the testator himself in
perfect compliance of Article 810 of the Civil Code.
The law does not specify a particular location where the date must be placed in the will. The only
requirements are that the date be in the will itself and should be executed in the hand of the testator.
These requirements are present in the subject will. Hence, the probate proceeding should be allowed.

21. Ajero v. CA
236 SCRA 488

FACTS:

The holographic will of Annie San was submitted for probate.

Private respondent opposed the petition on the grounds that: neither the testament’s body nor the
signature therein was in decedent’s handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue
influence.

The petition was also contested by Dr. Ajero with respect to the disposition in the will of a house and lot.
He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole
owner.

However, the trial court still admitted the decedent’s holographic will to probate.
The trial court held that since it must decide only the question of the identity of the will, its due execution
and the testamentary capacity of the testatrix, it finds no reason for the disallowance of the will for its
failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the
testatrix.

On appeal, the CA reversed said Decision holding that the decedent did not comply with Articles 313 and
314 of the NCC. It found that certain dispositions in the will were either unsigned or undated, or signed by
not dated. It also found that the erasures, alterations and cancellations made had not
been authenticated by decedent.

ISSUE:

Whether the CA erred in holding that Articles 813 and 814 of the NCC were not complies with.

HELD:

YES. A reading of Article 813 shows that its requirement affects the validity of the dispositions contained
in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions,
the result is that these dispositionscannot be effectuated. Such failure, however, does not render the
whole testament void.
Likewise, a holographic will can still be admitted to probate notwithstanding non-compliance with the
provisions of Article 814.

Unless the authenticated alterations, cancellations or insertions were made on the date of the holographic
will or on testator’s signature, their presence does not invalidate the will itself. The lack
of authentication will only result in disallowance of such changes.

It is also proper to note that he requirements of authentication of changes and signing and
dating of dispositions appear in provisions (Article 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810).
This separation and distinction adds support to the interpretation that only the requirements of Article 810
of the NCC – and not those found in Articles 813 and 814 – are essential to the probate of a holographic
will.

Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code enumerate the grounds for
disallowance of wills. These lists are exclusive; no other grounds can serve to disallow a will.

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

1.whether the instrument submitted is, indeed, the decedent’s last will and testament;

2.whether said will was executed in accordance with the formalities prescribed by law;

3.whether the decedent had the necessary testamentary capacity at the time the will was executed; and

4.whether the execution of the will and its signing were the voluntary acts of the decedent.

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud; accordingly, laws on this subject should be interpreted to attain these primordial ends.

In the case of holographic wills, what assures authenticity is the requirement that they be totally
authographic or handwritten by the testator himself. Failure to strictly observe other formalities will no
result in the disallowance of a holographic will that is unquestionable handwritten by the testator.

22. Kalaw v. Relova

132 SCRA 237

FACTS:

On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his deceasedsister, 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 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.