31. G.R. No.

189984               November 12, 2012

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT
OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, Respondents.

DOCTRINE:

The law is clear that the attestation must state the number of pages used upon which the will
is written. The purpose of the law is to safeguard against possible interpolation or omission of one or
some of its pages and prevent any increase or decrease in the pages.

FACTS:

Enrique S. Lopez (Enrique) died leaving his wife and their four legitimate children as compulsory
heirs. Before his death, he executed a Last Will and Testament and constituted Richard as his
executor and administrator.

Richard then filed a petition for the probate of his father's Last Will and Testament before the RTC of
Manila.

Marybeth opposed the petition contending that the purported last will and testament was not executed
and attested as required by law, and that it was procured by undue and improper pressure and
influence on the part of Richard.

The RTC disallowed the probate of the will for failure to comply with Article 805 of the Civil Code
which requires a statement in the attestation clause of the number of pages used upon which the will
is written. It held that while Article 809 of the same Code requires mere substantial compliance
of the form laid down in Article 805 thereof, the rule only applies if the number of pages is
reflected somewhere else in the will with no evidence aliunde or extrinsic evidence required.
While the acknowledgment portion stated that the will consists of 7 pages including the page
on which the ratification and acknowledgment are written, the RTC observed that it has 8
pages including the acknowledgment portion. As such, it disallowed the will for not having
been executed and attested in accordance with law.

CA affirmed the RTC’s Ruling. Hence, this petition.

ISSUE: W/N the discrepancy between the number of pages in the attestation clause and the
actual number of pages in the will would warrant its disallowance.

RULING: YES.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil Code
provide that the attestation must state the number of pages used upon which the will is written. The
purpose of the law is to safeguard against possible interpolation or omission of one or some of its
pages and prevent any increase or decrease in the pages.

In this case, while Article 809 allows substantial compliance for defects in the form of the attestation
clause, Richard likewise failed in this respect. The statement in the Acknowledgment portion of the
subject last will and testament that it "consists of 7 pages including the page on which the ratification
and acknowledgment are written "cannot be deemed substantial compliance. The will actually
consists of 8 pages including its acknowledgment which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence aliunde.

Hence, the CA properly sustained the disallowance of the will.

ARTICLE 805 & 809 OF THE CIVIL CODE

ART. 805. 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 witnesses in the presence of
the testator and of one another.

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, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them.

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of
11 
On this score is the comment of Justice J.B.L. Reyes regarding the application of Article 809, to wit:

/
32.) G.R. No. 122880             April 12, 2006

FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.

FACTS:

The case stems from a petition for probate filed by petitioner Felix Azuela, he sought to admit
to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is
the son of the cousin of the decedent. The three named witnesses to the will affixed their signatures
on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself
as the attorney-in-fact of "the 12 legitimate heirs" of the decedent. Geralda Castillo claimed that the
will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation
of real property, all centering on petitioner’s right to occupy the properties of the decedent. It also
asserted that contrary to the representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad.

RTC admitted the will to probate. CA reversed the trial court Decision and ordered the
dismissal of the petition for probate. CA 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.

Petitioner 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.

THE 2 PAGED WILL OF THE TESTATRIX DISPOSING HER PROPERTIES TO FELIX

AZUELA WAS OPPOSED BY THE LEGITIMATE HEIRS ON THE GROUND THAT THE WILL WAS
NOT EXECUTED AND ATTESTED IN ACCORDANCE WITH LAW. THE DECEDENT’S
SIGNATURE DID NOT APPEAR ON THE 2 PAGE OF THE WILL AND THE WILL WAS NOT
ND

PROPERLY ACKNOWLEDGED. FURTHER, THE ATTESTATION CLAUSE WAS NOT SIGNED BY

THE SUBSCRIBING WITNESSES AT THE BOTTOM, THE SIGNING WAS MADE ON THE LEFT
MARGIN. FURTHERMORE, THE WILL WAS NOT NUMBERED CORRELATIVELY IN LETTERS
AND THE ATTESTATION DID NOT STATE NUMBER OF PAGES.

ISSUE: Whether the will should be admitted for probate

RULING:

NO. As admitted by petitioner himself, the attestation clause fails to state the number of pages
of 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; hence, the requisite was left uncomplied with.
 The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in the pages.  The
failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they
had ostensibly just witnessed and subscribed to.

The attestation clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission
of their signatures at the bottom thereof negatives their participation.

Other defects:

(1)The attestation clause was not signed 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 which after all consists of their averments before the notary public.

The attestation clause is "a memorandum of the facts attending the execution of the will" required by
law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their participation.

If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence
of the testator and any or all of the witnesses.

The Court today reiterates the continued efficacy of Cagro. Article 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 [the instrumental witnesses]." The respective intents behind these two
classes of signature are distinct from each other. 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. Indeed, the attestation clause is
separate and apart from the disposition of the will. 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.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.

(2) The requirement under Article 806 that "every will must be acknowledged before a notary public
by the testator and the witnesses" has also not been complied with.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of
contemplation can those 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 involves an extra step undertaken whereby the signor 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. Ordinarily, the language of the jurat should
avow that the document was subscribed and sworn before the notary public, while in this case, the
notary public averred that he himself "signed and notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the
document, which in this case would involve the decedent and the instrumental witnesses.

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. An acknowledgement is
not an empty meaningless act.  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.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806.  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.

33. G.R. No. L-20357      November 25, 1967

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO
GATCHALIAN, deceased. PEDRO REYES GARCIA, petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG,
VIRGINIA G. TALANAY and ANGELES G. TALANAY, oppositors-appellees.

FACTS:

This is an appeal taken by Pedro Reyes Garcia from the decision of the CFI denying the
allowance of the will of the late Gregorio Gatchalian, on the ground that the attesting witnesses did
not acknowledge it before a notary public, as required by law.
 The decedent died leaving no forced heirs. The appellant filed a petition with the CFI for the
probate of said alleged will wherein he was instituted as sole heir. The appellees herein, opposed the
petition on the ground, among others, that the will was procured by fraud; that the deceased did not
intend the instrument signed by him to be as his will; and that the deceased was physically and
mentally incapable of making a will at the time of the alleged execution of said will.

After due trial, the court rendered the appealed decision finding the document to be the
authentic last will of the deceased but disallowing it for failure to comply with the mandatory
requirement of Article 806 of the New Civil Code — that the will must be acknowledged before a
notary public by the testator and the witnesses.

An examination of the document, it shows that the same was acknowledged before a notary
public by the testator but not by the instrumental witnesses.

ISSUE: Whether a will may be probated if it was acknowledged before a notary public by the
testator only but not by the instrumental witnesses.

RULING:

NO.

Article 806 of the New Civil Code reads as follows:

Every will must be acknowledged before a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the will, or file another with the office of the
Clerk of Court.

We have held heretofore that compliance with the requirement contained in the above legal
provision to the effect that a will must be acknowledged before a notary public by the testator and
also by the witnesses is indispensable for its validity (In re: Testate Estate of Alberto, G. R. No. L-
11948, April 29, 1959). As the document under consideration does not comply with this requirement,
it is obvious that the same may not be probated.

WHEREFORE, the decision appealed from is affirmed, with costs.

34. Testate Estate of the Late Apolinaria Ledesma.

FELICIDAD JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant
Facts:
In this case the deceased Apolonaria Ladesma VDA de. Javellana executed a testament on March
30, 1950 and a codicil on May 29, 1952 and they were witnessed by Ramon Tabiana, Gloria
Montinola de Tabiana and Vicente Yap. On July 23, 1953, the said testament (in Spanish) and codicil
(in Visayan dialect), was admitted by the CFI of Iloilo for probate.

The problem arose when Matea Ladesma, the sister of the decedent Apolinaria, contested the
probate of the latter’s will and codicil saying, among others, that it wasn’t executed in conformity with
law for the reason that the testament was executed at the house of the testator whereas the codicil
was executed and attested at the San Pablo hospital after the enactment of the New Civil Code
(NCC)], and therefore had to be acknowledged before a notary public. 

Now, the instrumental witnesses (who happen to be the same ones who attested the will of 1950)
asserted that after the codicil had been signed by the testatrix and the witnesses at the San Pablo
Hospital, the same was signed and sealed by notary public Gimotea on the same occasion. On the
other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed
and sealed it there.

The oppositor alleged that the Notary Public did not sign the certificate of acknowledgement in the
presence of the testator and the witnesses thus, affecting the validity of the codicil.

ISSUE: WON the signing and sealing of the codicil by the Notary Public, in the absence of the
testator and witnesses, affects the validity of the will?

HELD:
No. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the
testator, witnesses and notary should be accomplished in one single act. A comparison of Articles
805 and 806 of the new Civil Code reveals that while the testator and witnesses sign  in the presence
of each other, all that is thereafter required is that "every will must be acknowledged before a notary
public by the testator and the witnesses" (Art. 806) i.e., that the latter should avow to the certifying
officer the authenticity of their signatures and the voluntariness of their actions in executing the
testamentary disposition.

The subsequent signing and sealing by the notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the acknowledgment itself nor of the
testamentary act. Hence, their separate execution out of the presence of the testatrix and her
witnesses cannot be said to violate the rule that testaments should be completed without interruption
("uno codem die ac tempore in eadem loco"). It is noteworthy that Article 806 of the new Civil Code
does not contain words requiring that the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was executed.

35. G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents.

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate
of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument
was executed 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.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. The question is that, was the
will attested and subscribed by at least three credible witnesses in the presence of the testator and of
each other, considering that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself, petitioner argues that the
result is that only two witnesses appeared before the notary public to acknowledge the will.

Issue: WON the will was executed in accordance with law even if the notary public is one of
the three witnesses?

No. The last will and testament in question was not executed in accordance with law.

The notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow; to own as genuine, to assent, to admit; and "before" means in
front or preceding in space or ahead of. 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. That function would be defeated if the notary public was one of the attesting
instrumental witnesses. For then, he would be interested in sustaining the validity of the will as it
directly involves him and the validity of his own act. It would place him in inconsistent position and the
very purpose of acknowledgment, which is to minimize fraud, would be thwarted.

To allow the notary public to act as third witness, or one of the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required number of witnesses must
appear before the notary public to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for or that purpose. In the circumstances, the
law would not be duly in observed.

36. [ G.R. NO. 174144, April 17, 2007 ]

BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS, RESPONDENT.

The Scriptures tell the story of the brothers Jacob and Esau [1], siblings who fought bitterly over the
inheritance of their father Isaac's estate. Jurisprudence is also replete with cases involving
acrimonious conflicts between brothers and sisters over successional rights. This case is no
exception.

Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and respondent Resurreccion
A. Bihis, died and petitioner filed a petition for the probate of the last will and testament.
The petition alleged the following: petitioner was named as executrix in the decedent's will and she
was legally qualified to act as such; the decedent was a citizen of the Philippines at the time of her
death; at the time of the execution of the will, the testatrix was 79 years old, of sound and disposing
mind, not acting under duress, fraud or undue influence and was capacitated to dispose of her estate
by will.

Respondent opposed her elder sister's petition on the following grounds: the will was not executed
and attested as required by law; its attestation clause and acknowledgment did not comply with the
requirements of the law; the signature of the testatrix was procured by fraud and petitioner and her
children procured the will through undue and improper pressure and influence.

Trial court denied the probate of the will ruling that Article 806 of the Civil Code was not complied with
because the will was "acknowledged" by the testatrix and the witnesses at the testatrix's before Atty.
Macario O. Directo who was a commissioned notary public

ISSUE: Did the will "acknowledged" by the testatrix and the instrumental witnesses before a
notary public acting outside the place of his commission satisfy the requirement under Article
806 of the Civil Code?

RULING:
NO
Article 806 of the Civil Code provides:
ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of the
Clerk of Court.
One of the formalities required by law in connection with the execution of a notarial will is that it must
be acknowledged before a notary public by the testator and the witnesses. [6] This formal requirement
is one of the indispensable requisites for the validity of a will. [7] In other words, a notarial will that is not
acknowledged before a notary public by the testator and the instrumental witnesses is void and
cannot be accepted for probate.

An acknowledgment is the act of one who has executed a deed in going before some competent
officer and declaring it to be his act or deed. [8] In the case of a notarial will, that competent officer is
the notary public.

The acknowledgment of a notarial will coerces the testator and the instrumental witnesses to declare
before an officer of the law, the notary public, that they executed and subscribed to the will as their
own free act or deed.[9] Such declaration is under oath and under pain of perjury, thus paving the way
for the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. [10] It also provides a further degree of assurance that
the testator is of a certain mindset in making the testamentary dispositions to the persons instituted
as heirs or designated as devisees or legatees in the will. [11]

Acknowledgment can only be made before a competent officer, that is, a lawyer duly
commissioned as a notary public.

39. G.R. No. L-38338 January 28, 1985

 IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

FACTS:

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,a Special Proceeding
was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.

After Simeon R. Roxas was appointed as administrator, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus which was found and
is written in the notebook belonging to the deceased Bibiana R. de Jesus, addressed to her children.
His testimony was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de
Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified
her signature. They further testified that their deceased mother understood English, the language in
which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with
law because it was not dated as required by Article 810 of the Civil Code. She contends that the law
requires that the Will should contain the day, month and year of its execution and that this should be
strictly complied with.

ISSUE:

WON the date "FEB./61 " is a valid compliance with Article 810 of the Civil Code.

RULING:

Yes.

ART. 810 states that 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.

However, this will not be the first time that the Court departs from a strict and literal application of the
statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend
of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy.

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is
not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled that:The object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. ...

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in
its execution nor was there any substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no question as to its genuineness
and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of
their mother and that she had the testamentary capacity at the time of the execution of said Will.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or
not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the principle of substantial
compliance.

40. G.R. No. L-12190             August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.

DOCTRINE: In the probate of a holographic will, the document itself must be produced. Therefore, a
lost holographic will cannot be probated

FACTS:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo
Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance
with a petition for the probate of a holographic will allegedly executed by the deceased.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left
any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence
this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by the
statements in open court.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important of
which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so
that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was
a confidant of the decedent it is hard to believe that the latter would have allowed the former to see
and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo
Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its
contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to
conceal the will from her husband she would carry it around, even to the hospital, in her purse which
could for one reason or another be opened by her husband; (e) if it is true that the husband
demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe
that he returned it without destroying the will, the theory of the petitioner being precisely that the will
was executed behind his back for fear he will destroy 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: W/N 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.

RULING:

NO.

The Rules of Court, (Rule 77) allow proof (and probate) of a lost or destroyed will by secondary —
evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have
contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule
123; Art. 830-New Civil Code.)

Spanish commentators agree that one of the greatest objections to the holographic will is that it may
be lost or stolen4 — an implied admission that such loss or theft renders it useless.

This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art.
689) who shall subscribe it and require its identity to be established by the three witnesses who
depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if
the judge considers that the identity of the will has been proven he shall order that it be filed (Art.
693). All these, imply presentation of the will itself.

Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the
legitimate ascendants and descendants be summoned so that they may make "any statement they
may desire to submit with respect to the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself alone, to prevent others from knowing
either its execution or its contents, the above article 692 could not have the idea of simply permitting
such relatives to state whether they know of the will, but whether in the face of the document
itself  they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to
the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with
the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated
when the document is not presented for their examination.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we
think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies
that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.

Therefore, 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.

OTHER ISSUES:

2. W/N guaranties of truth and veracity are demanded in holographic wills.

-No. In the matter of 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." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard, since it could at any time,
be demonstrated to be — or not to be — in the hands 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."

3. W/N the means of opposition, and of assessing the evidence are available when the will itself is
not submitted.

NO.

The witnesses so presented do not need to have seen the execution of the holographic will. They
may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with other writings or letters of
the deceased, have come to the conclusion that such will has not been written by the hand of the
deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its
own visual sense, and decide in the face of the document, whether the will submitted to it has indeed
been written by the testator.

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.

4. Why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed?

- The difference lies in the nature of the wills.

In the holographic wills, the only guarantee of authenticity is the handwriting itself; in the ordinary
wills, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of
the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on
the particular day, the likelihood that they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and read
the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good
faith affirm its genuineness and authenticity. The will having been lost — the forger may have
purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility
of forgery — would be added to the several objections to this kind of wills.

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact  which they saw, namely the act of the testator of subscribing the will; whereas in
the case of a lost holographic will, the witnesses would testify as  to their opinion  of the handwriting
which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the
oppositors, because the handwriting itself is not at hand.

41. G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA

deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

FACTS:

Appellant filed a petition with the CFI of Rizal for the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in her favor. The appellees moved to dismiss the
petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the management and
improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.
On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the
probate of the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof
cannot stand in lieu of the original.

MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962
while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the
time of the execution of the will to the death of the decedent, the fact that the original of the will could
not be located shows to our mind that the decedent had discarded before his death his allegedly
missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which
it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court

ISSUE: whether a holographic will which was lost or cannot be found can be proved by means
of a photostatic copy.

HELD:

Yes. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will
by the court after its due execution has been proved. The probate may be uncontested or not. If
uncontested, at least one Identifying witness is required and, if no witness is available, experts may
be resorted to. If contested, at least three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the testator in said will.

It is necessary that there be a comparison between sample handwritten statements of the testator
and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made with the standard writings of the testator.

WHEREFORE, the order of the lower court dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.

Additional info onleh:

In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a
lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have
seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The
law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision,
it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed
or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox
copy of the lost or destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.
 42. G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
City, and GREGORIO K. KALAW, respondents.

FACTS:

Private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition before the Court of First Instance for the probate of her
holographic Will executed on December 24, 1968.

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her
sole heir. Hence, petitioner ROSA K. Kalaw opposed probate alleging, in substance, 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.

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.

After trial, respondent Judge denied probate, the document Exhibit "C" was submitted to the
National Bureau of Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw. The petitioner
contends that the oppositors are estopped to assert the provision of Art. 814 on the ground that they
themselves agreed thru their counsel to submit the Document to the NBI FOR EXAMINATIONS.

From the Order of the CFI, GREGORIO moved for reconsideration arguing that since the
alterations and/or insertions were the testatrix, the denial to probate of her holographic Will would be
contrary to her right of testamentary disposition. Reconsideration was denied in an Order on the
ground that "Article 814 of the Civil Code being, clear and explicit, (it) requires no necessity for
interpretation."

ISSUE: Whether the original unaltered text after subsequent alterations and insertions for lack
of authentication by the full signature of the testatrix, should be probated or not, with the
petitioner as sole heir.

RULING:

NO.

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.

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.

43. G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

The instrument submitted for probate is the holographic will of the late Annie Sand. In the will,
decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S.
Sand, and Dr. Jose Ajero, Sr., and their children.

Petitioners instituted for allowance of decedent's holographic will. 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
likewise opposed by Dr. Jose Ajero alleging that a house and lot disposed in the will is not solely
owned by decedent.

The trial court admitted the decedent's holographic will to probate and held that the requirement of
the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix
has been complied with. The CA reversed the decision on the ground that the requirements of Art.
813-814 were not complied with. It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found that the erasures, alterations and
cancellations made thereon had not been authenticated by decedent.

Issues:

A. WON the will may still be allowed for probate even if some dispositions were unsigned &
undated or signed but not dated and that alterations and cancellations were not
authenticated?
B. WON the decedent can dispose of the house and lot in the name of the decedent’s father?

Yes.

In the case of holographic wills, what assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil
Code, thus:

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. Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined. Thus, unless
the unauthenticated alterations, cancellations or insertions were made on the date of the holographic
will or on testator's signature,  their presence does not invalidate the will itself.  The lack of
authentication will only result in disallowance of such changes.

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

It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 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 New Civil
Code — and not those found in Articles 813 and 814 of the same Code — are essential to the
probate of a holographic will.

B. No. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. However, in exceptional instances, courts are not powerless
to do what the situation constrains them to do, and pass upon certain provisions of the will.  11 In the
case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she
cannot validly dispose of the whole property, which she shares with her father's other heirs.

44. G.R. No. 17857             June 12, 1922

 In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.

FACTS: Doña Josefa Zalamea y Abella, executed her last will and testament with an attached
inventory of her properties in the presence of three witnesses, who signed with her all the pages of
said documents. The testatrix died and the executor appointed in the will, Pedro Unson, filed in the
court an application for the probate of the will and the issuance of the proper letters of administration
in his favor.

To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia Abella,
and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not executed in
conformity with the provinces of the law, inasmuch as it was not paged correlatively in letters, nor was
there any attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence
of each other.

Trial having been held that both documents contained the true and last will of the deceased Josefa
Zalamea.

The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the
other witness to the will, Pedro de Jesus, they did sign each and every page of the will and of the
inventory in the presence of each other and of the testatrix, as the latter did likewise sign all the
pages of the will and of the inventory in their presence.

The appellants intimate that one of the pages of the will was not signed by the testatrix, nor by the
witnesses on the day of the execution of the will, that is, basing their contention on the testimony of
Aurelio Palileo, who says that on one occasion Gonzalo Abaya told him that one of the pages of the
will had not been signed by the witnesses, nor by the testatrix on the day of its execution. Palileo's
testimony is entirely contradicted by Gonzalo Abaya.

The appellants contend that the court below erred in admitting the will to probate notwithstanding the
omission of the proponent to produce one of the attesting witnesses.The attorneys for the proponent
stated to the court that they had necessarily to omit the testimony of Pedro de Jesus, one of the
persons who appear to have witnessed the execution of the will, for there were reasonable grounds to
believe that said witness was openly hostile to the proponent.

ISSUE: Whether the will could not be admitted to probate because one of the witnesses to the
will was not produced

RULING:NO. The will could be admitted to probate.

The trial court found that the evidence introduced by the proponent, consisting of the testimony of the
two attesting witnesses and the other witness who was present at the execution, and had charge of
the preparation of the will and the inventory was sufficient.

As announced in Cabang vs. Delfinado, supra, the general rule is that, where opposition is made to
the probate of a will, the attesting witnesses must be produced. But there are exceptions to this rule,
for instance, when a witness is dead, or cannot be served with process of the court, or his reputation
for truth has been questioned or he appears hostile to the cause of the proponent. In such cases, the
will may be admitted to probate without the testimony of said witness, if, upon the other proofs
adduced in the case, the court is satisfied that the will has been duly executed. Wherefore, we find
that the non-production of the attesting witness, Pedro de Jesus, as accounted for by the attorney for
the proponent at the trial, does not render void the decree of the court a quo, allowing the probate.

Section 632 of the Code of Civil Procedure provides that a will can be admitted to probate,
notwithstanding that one or more witnesses do not remember having attested it, provided the court is
satisfied upon the evidence adduced that the will has been executed and signed in the manner
prescribed by the law.

In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the
foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires this
solemnity for the validity of a will, and makes unnecessary any other attestation clause at the end of
the inventory.

In that case the testament was written on one page, and the attestation clause on another. Neither
one of these pages was numbered in any way, and it was held: "In a will consisting of two sheets the
first of which contains all the testamentary dispositions and is signed at the bottom by the testator and
three witnesses, and the second contains only the attestation clause and is signed also at the bottom
by the three witnesses it is not necessary that both sheets be further signed on their margins by the
testator and the witnesses, or be paged."

This means that, according to the particular case, the emission of paging does not necessarily render
the testament invalid.