CHAPTER II

TESTAMENTARY SUCCESSION
Test of presence of testator and witness
Requisite of a Valid will:
a.) the testator must sign the will in the presence of all the
witnesses;

b.) The witness must sign the will in the presence of the testator
and of each other.
JABONETA vs GUSTILO
FACTS:
The lower court denied the last will and testament of Macario
Jaboneta, deceased on the ground that Julio Javellana (one of the
witnesses) did not attached his signature thereto in the presence of
Isabelo Jena.
On trial, being part of testimony of Isabelo. He said that after signing
he asked permission to leave because he was in hurry, and while he was
near the door he happened to turn his face and saw that Javellana had
pen in his hand and resting on the will, moving it as if for the purpose of
signing.
ISSUE:

Whether Javellana sign the will in the presence of Isabelo Jena?

RULING:
YES, Javellana sign the will in the presence of Isabelo Jena. It was held
that it is sufficient if the witnesses are together for the purpose of witnessing
the execution of the will, and in the position to actually see the testator
write.
The principle on which these case rest and the test of presence as
between the testator and witnesses are equally applicable in determining
whether the witnesses sign the instrument in the presence of each other, as
required by statute.
The lower court erred in denying the probate and the evidence was
satisfactorily proven to be the last will and testament of Jaboneta. Therefore
the judgment of the trial court was reversed.
NERA vs RIMANDO
FACTS:
Probate of the last will and testament of Pedro Rimando was affirmed
by the trial court. At the time the will was executed, in a large room
connecting with a smaller room by doorway where a curtain hang across,
one of the witness was allegedly outside the room when the other
witnesses were attaching their signature to the instrument(will).
ISSUE:

Whether one of the subscribing witnesses was present in the small

room where it was executed and attached their signature thereto?
RULING:
The true test of presence of the testator and the witness 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 the 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.
(Doctrine in Jaboneta v. Gustillo)
The court held that the subscribing witness was in the small room
with the testator and the other subscribing witnesses at the time when
they attached their signature. The decision of lower court in admitting to
probate the last will and testament of Pedro Rimando was affirmed.
Subscription on various periods not permitted by Law.

*Execution of will – Under our statute, the execution of a will is

supposed to be one act and cannot be legally effective if the various
participants sign on various days an in various combination of those
present.
ANDALIS vs PULGUERAS
FACTS:
Appeal against the Court of First Instance of Camarines Sur
for admitting to probate the alleged will of Victor Pulgeras.
Testator and two of the witnesses signed the will on 4th day of
January 1931 and the remaining three (3) pages were signed by
testator and the three attesting witnesses on 11th day of January
1931.
ISSUE:

Whether the subscription on various date/period was valid?

RULING:

No, The will is not valid. The execution of the will does not
comply with the conformity laid down by statute under
Article 618 of the Civil Procedure as amended. The execution
of a will is supposed to be one act and cannot be legally
effective if the various participants sign on various days and
in various combinations of those present. The judgment of
the court of first instance was reversed and the will is denied
for probate.
Signature of testator and witnesses appearing in the right margin

Requirements for A Ordinary Will - The Testator

or the person requested by him to write his name,
and the instrumental witnesses of the will shall sign
each and every page thereof except the last, on the
left margin.
 AVERA vs GARCIA AND RODRIGUEZ
FACTS:
Contest in the probate of Esteban Garcia. The proponent of the will
introduce one of the three attesting witnesses who testified that the
will was executed with all necessary external formalities, and the
testator was at the time full possession of disposing faculties. The trial
court admit the will for probate. Upon appeal the appellant alleged
that the will in question was invalid by reason of the fact that the
signature of the testator and of the three attesting witnesses are
written on the right margin of each page of the will instead of the left
margin.
ISSUE:

Whether the will in question is render invalid by reason of the fact that the signature of the testator and the
three attesting witness are written on the right margin of each page instead of left margin?
RULING:
YES, the will is invalid. Under 618 of the code of civil
Procedure, as amended by Act No. 2645, it is essential to
the validity of a will in this jurisdiction that the names of
the testator and the instrumental witnesses should be
written on the left margin of each page, as require and not
upon the right margin.
Use of thumbprint or the other mark allowed
 Section 618 of the Code of Civil Procedure as amended;
No will, except as provided in the preceding section, shall be valid to pass any estate, real
or personal, nor charge or affect the same, unless it be written in the language or
dialect known by the testator and signed by him, or by the testator's name
written by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence of
the testator and of each other. 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, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet. The attestation shall state the number of
sheets or 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 three witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of the testator and of each other.
DE GALA vs GONZALES AND ONA

FACTS:
Severina Gonzales executed a will and place her
thumb-mark on the will in the proper places, in which
Serapia De Gala, a niece of Severina designated as
executrix. Severina died leaving no heir by force of law.
Serapia, through her counsel presented the will for
probate.
Apolinario Gonzales oppose the will on the ground that it
had not been executed in conformity under Section 618 of
the code of civil procedure. But the trial court admit the
probate and order Sinforoso Ona, the surviving husband of
Severina to deliver all the property left by the deceased.
Instead of delivering the property, Ona move a motion
asking the appointment of Serapia to be cancelled and it
was granted.
ISSUE:

Whether using of thumb-mark makes the will invalid?

RULING:
No, placing thumb-mark on the will does not affect its validity.
It is not mention in the attestation clause that the testatrix
signed by thumb-mark, but it does there appear that the
signature was affix in the presence of the witnesses, and the
form of the signature is sufficiently describe and explain in the
last will. It does not quite meet the requirements of the state,
but taken in connection with the last clause of the body of the
will fairly clear and sufficiently carries out the legislative
intent, it leaves no possible doubt as to the authenticity of the
document. Therefore the will is valid.
INADVERTENT FAILURE OF WITNESS TO AFFIX
SIGNATURE TO A PAGE NOT FATAL
 ICASIANO vs ICASIANO
FACTS:
An appeal from Court of First Instance of Manila in admitting to
probate as the true last will and testament of Josefa Villacorte
appointing Celso Ino as executor. Natividan Icasiano and Enrique
Icasiano oppose the will and question its validity because one of the
witness Atty. Jose Natividad failed to sign page three (3) of the
original and admits that he may have lifted two pages instead of one
when he signed the same but affirmed that page three (3) was signed
in his presence.
ISSUE:
Whether the failure to affix signature was fatal to the
validity of the will?
RULING:
No, The inadvertent failure of one witness to affix his signature to one
page of a testament due to the simultaneous lifting of two pages in the
course of signing is not sufficient to justify denial of probate. the failure
to sign was entirely through pure oversight. 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. These precedents exemplify the court’s policy to require
satisfaction of the legal requirements in order to guard against fraud
and bad faith but with out undue or unnecessary curtailment of the
testamentary privilege. Wherefore, the appeal was granted.
SIGNING BY ANOTHER OP TESTATOR ‘S NAME AT
LATTER’S DIRECTION
GARCIA vs LACUESTA

FACTS:
An appeal was file from the decision of CA disallowing the will of
Antero Mercado.The will appears to have been signed by Atty. Florentino
Javier who wrote the name of Antero Mercado followed by “A reugo del
testator” and the name of Florentiono Javier. Mercado alleged to have
written a cross immediately after his name. the attestation clause failed
to state that the testator caused another person to write his nameunder
his express direction. They argue that there is no need for such recital
because the cross written by the testator after his name is a sufficient
signature and the signature of Atty. Javier is a surplusage.
ISSUE:
Whether the will is void on the ground that it failed to state
that the testator caused another person to write the testator’s
name under his express direction?
RULING:

Yes, The attestation clause is fatally defective for failing to

state that Mercado cause Atty. Javier to write the testator’s
name under his express direction as required by Section 618
of the Code of Civil Procedure. The cross cannot and does
not have the trustworthiness of a thumb-mark. Wherefore
the decision of CA was affirmed.
THIRD PERSON REQUESTED BY TESTATOR TO WRITE
HIS NAME NEED NOT SIGN WILL HIMSELF
BARUT vs CABACUNGAN
FACTS:
Pedro Barut file an application to probate the last will and
testament of Maria Salomon. In the will stated that being
unable to read or write, the same had been 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 court found that the will was not entitle to
probate on the ground that the handwriting was not of Severo
Agayan but another witness.
ISSUE:
Whether the will is valid?
RULING:
Yes, with respect to the validity of the will it is unimportant
whether the person who writes the name of the testatrix
signs his own or not. The important thing is that it clearly
appears that the name of the testatrix was signed at her
express direction in the presence of three (3) witnesses and
that they attested and subscribed it in her presence and in
the presence of each other.
WILL SUBSCRIBE AT THE END BY SOME PERSON
OTHER THAN THE TESTATOR INSUFFICIENT
COMPLIANCE WITH THE LAW
BALONAN vs ABELLANA
FACTS:
The first page of the will is signed by Juan Bello and under
his name appears typewritten “Por la testodora Anacleta
Abellana”, and on the second page appears the signature of
three (3) witnesses Blas Sebastian, Faustino Macaso and
Rafael Ignacio, at the bottom of which appears the signature
of T. de Los Santos and Below his signature is his official
designation as the notary public who notarize the said
testament.
ISSUE:
Does the signature of another person above the name of
the testator comply with the requirements of law?
RULING:
No, The will must be subscribe 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 Here,
the name of the testatrix does not appear written under the
will by Abellana herself. There is, therefore a failure to comply
with the requirements in the law that testator must sign the
will or his name affix thereto by some other person in his
presence and by express direction. Wherefore the appeal was
set aside and the probate will was denied.
THANK YOU……