Cabana, Adrian C.

Doctrine : Non-compliance with the Elements of Notarial Will

Case Title : FELIX AZUELA v. COURT OF APPEALS and

GERALDA AIDA CASTILLO, substituted
by ERNESTO G. CASTILLO
G.R. 122880

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 comply with the requirements of the law
and should be admitted to probate

Ruling

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.

According to Justice J.B.L Reyes “substantial compliance 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.”