wills random cases

8/22/2019 Wills Random Cases

1/15

Nenita de Vera SUROZA vs. Judge Reynaldo P. HONRADO and Evangeline YUIPCO

A.M. No. 2026-CFI, December 19, 1981

Mauro Suroza, a corporal in the 45th Infantry of theUS Army(Philippine Scouts) married M

arcelina Salvador but they were childless. However, they reared a boy named Agapito who used

the surname Suroza and who considred them as parents as shown in his marriage contract with

Nenita de Vera. When Mauro died, Marcelina, as a veterans widow, became a pensioner of

theFederal Government. Agapito and Nenita begot a child namedLiliaand afterwards, Aga

pito also became a soldier. However, he was disabled and his wife was appointed as his

guardian when he was declared an incompetent. In connection to this, a woman named Arsenia

de la Cruz (apparently a girlfriend of Agapito) wanted also to be his guardian however the court

confirmed Nenitas appointment as guardian of Agapito.

The spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who was

delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito

and as her granddaughter. Marilyn used the surname Suroza and stayed with Marcelina but

was not legally adopted by Agapito.

Marcelina, being a veterans widow accumulated some cash in two banks. She executed a not

arial will which is in English and was thumbmarked by her for she was illiterate. In that will, Marc

elina bequeathed all her estate to Marilyn. After her death, Marina Paje (alleged to be a

laundrywoman of Marcelina and the executrix in her will) filed apetition for probateof Marceli

nas alleged will. As there was no opposition, Judge Honrado appointed Marina as administrati

x and subsequently, issued two orders directing the two banks to allow Marina to withdraw from

the savings of Marcelina and Marilyn Suroza and requiring the custodian of the passbooks to

deliver them to Marina. Upon motion of Marina, Judge Honrado issued another order instructing

the sheriff to eject the occupants of thetestatrixhouse among whom was Nenita and to

place Marina in possession thereof.

Nenita was then alerted to the existence of the testamentary proceeding hence, she and other

occupants filed a motion to set aside the order ejecting them, alleging that thedecedents

son Agapito was the sole heir of the deceased; that he has a daughter named Lilia; that Nenitawas Agapitos guardian; and that Marilyn was not Agapitos daughter nor the decedents

granddaughter. Later, they questioned the probate courts jurisdiction to issue the ejectment or

der. In spite of such fact, Judge Honrado issued on order probating Marcelinas supposed will

wherein Marilyn was the instituted heiress. Nenita filed in the testate case an omnibus petition

to set aside proceedings, admit opposition with counter petition for administration and
http://www.army.mil/http://en.wikipedia.org/wiki/Philippine_Scoutshttp://en.wikipedia.org/wiki/Federal_government_of_the_United_Stateshttp://www.rottentomatoes.com/m/1021015-ten_commandmentshttp://en.wikipedia.org/wiki/Probatehttp://en.wikipedia.org/wiki/Testatorhttp://en.wikipedia.org/wiki/Testatorhttp://en.wikipedia.org/wiki/Deathhttp://en.wikipedia.org/wiki/Deathhttp://en.wikipedia.org/wiki/Deathhttp://en.wikipedia.org/wiki/Testatorhttp://en.wikipedia.org/wiki/Probatehttp://www.rottentomatoes.com/m/1021015-ten_commandmentshttp://en.wikipedia.org/wiki/Federal_government_of_the_United_Stateshttp://en.wikipedia.org/wiki/Philippine_Scoutshttp://www.army.mil/


2/15

preliminary injunctionreiterating that Marilyn was a stranger to Marcelina; that the will was not

duly executed and attested; and that the thumbmarks of the testatrix were procured by fraud or

trick.

Further, that the institution of Marilyn as heir is void because of the preterition of Agapito and

that Marina was not qualified to act as executrix. Not contented with her motions, Nenita filed an

opposition to the probate of the will and a counter-petition which was however, dismissed.

Instead of appealing, Nenita filed a case to annul the probate proceedings which was also

dismissed. Hence, this complaint.

Whether or not a disciplinary action should be taken against respondent judge for having

admitted a will, which on its face is void.

Disciplinary action should be taken against respondent judge for his improper disposition of the

testate case which might have resulted in a miscarriage of justice because the decedents

legal heirs and not the instituted heiress in the void will should have inherited the decedents

estate. Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge

would be inexcusably negligent if he failed in the performance of his duties that diligence,

prudence and circumspection which the law requires in the rendition of any public service.

In this case, respondent judge, on perusing the will and noting that it was written in English and

was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is

void.

Payad vs.TolentinoG.R. No. 42258. January 15, 1936

VictorioPayad 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 theattestation

clausewas 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.

Was it necessary that the attestation clause state that the testatrix caused Atty. Almario to write

her name at her express direction?

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 signedis satisfied if the signature is

made by the testators mark.(Quoted by this court from 28 R. C. L., p. 117; De Gala vs.
http://maps.google.com/maps?ll=29.96667,-105.78333&spn=2.5,2.5&q=29.96667,-105.78333%20(Victorio)&t=hhttp://en.wikipedia.org/wiki/Attestation_clausehttp://en.wikipedia.org/wiki/Attestation_clausehttp://en.wikipedia.org/wiki/Attestation_clausehttp://en.wikipedia.org/wiki/Attestation_clausehttp://maps.google.com/maps?ll=29.96667,-105.78333&spn=2.5,2.5&q=29.96667,-105.78333%20(Victorio)&t=h


3/15

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.

Source:http://jayandes.blogspot.com/2011/06/payad-vs-tolentino-gr-no-42258-january.

htmlIn the Matter of the Will of Antero Mercado, deceased, Rosario GARCIA, vs. Juliana

LACUESTA, et al

G.R. No. L-4067, November 29, 1951

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 courts 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 formers 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.

Whether or not the attestation clause is valid.

The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.

Javier to write the testators name under his express direction, as required by section 168 of

the Code of Civil Procedure. It is not here pretended that the cross appearing on the will is the

usual signature of Antero Mercado or even one of the ways by which he signed his name. After

mature reflection, the SC is not prepared to liken the mere sign of the cross to a thumbmark and

the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

Barut vs. Cabacungan, G.R. L-6825 Febriary 15, 1912

Pedro Barut applied for the probate of the will of Maria Salomon. It is alleged in the petition that

testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907. The said

will was witnessed by 3 persons. From the terms it appears that the petitioner received a larger

part of decedents property. After this disposition, the testatrix revoked all other wills and stated

that since she is unable to read nor write, the will was read to her and that she has instructed Se

verino Agapan, one of the witnesses to sign her name in her behalf.

The lower court ruled that the will is not entitled to probate on the sole ground that the
http://jayandes.blogspot.com/2011/06/payad-vs-tolentino-gr-no-42258-january.htmlhttp://jayandes.blogspot.com/2011/06/payad-vs-tolentino-gr-no-42258-january.htmlhttp://jayandes.blogspot.com/2011/06/payad-vs-tolentino-gr-no-42258-january.htmlhttp://jayandes.blogspot.com/2011/06/payad-vs-tolentino-gr-no-42258-january.html


4/15

handwriting of the person who signed the name of the testatrix does not appear to be that of Ag

apan but that of another witness.

Whether or not a wills validity is affected when the person instructed by a testator to write his

name did not sign his name

No, it is immaterial who wrote the name of the testator provided it is written at her request and inher present, and in the presence of the witnesses. This is the only requirement under Sec. 618

of the Civil Code of procedure at that time.

Icasiano v. Icasiano, 11 SCRA 422 | Dela Cuesta

Celso Icasiano filed a petition for the allowance and admission to probate of the alleged will of J

osefa Villacorte, and for his appointment as executor thereof. Natividad and Enrique Icasiano, a

daughter and son of the testatrix, filed their opposition thereto. During the course of the trial, on

19 March 1959, Celso, started to present his evidence. But later, on 1 June 1959, he then filed

an amended and supplemental petition, alleging that the decedent had left a will executed induplicate and with all the legal requirements, and that he was submitting the duplicate to the

court, which he found only on 26 May 1959. Natividad and Enrique filed their opposition, but the

will and its duplicate was admitted to probate by the trial court. Hence, this appeal by the opposi

tors.

Oppositors-appellants (Natividad and Enrique) in turn introduced expert testimony to the effect

that the signatures of the testatrix in the duplicate are not genuine, nor were they written or

affixed on the same occasion as the original, and further aver that granting that the documents

were genuine, they were executed through mistake and with undue influence and pressure

because the testatrix was deceived into adopting as her last will and testament the wishes of

those who will stand to benefit from the provisions of the will, as may be inferred from the facts

and circumstances surrounding the execution of the will and the provisions and dispositions

thereof, whereby proponents- appellees stand to profit from properties held by them as

attorneys- in-fact of the deceased and not enumerated or mentioned therein, while oppositors-a

ppellants are enjoined not to look for other properties not mentioned in the will, and not to

oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.

Was the trial court correct in admitting the will and its duplicate to probate given the allegations

of forgery of the testators signature, or that the will was executed under circumstances

constituting fraud and undue influence and pressure? (Not raised by the appellants in the case

but discussed by the Court and in Sirs book) Is the failure of one of the witnesses to sign a

page of the will fatal to its validity?

The Supreme Court dismissed the appeal, holding that both the will and its duplicate are valid in


5/15

all respects.

On the allegations of forgery, fraud and undue influence:

The Court is satisfied that all the requisites for the validity of a will have been complied with. The

opinion of a handwriting expert trying to prove forgery of the testatrixs signature failed to

convince the Court, not only because it is directly contradicted by another expert but principallybecause of the paucity of the standards used by him (only three other signatures), considering

the advanced age of the testatrix, the evident variability of her signature, and the effect of writing

fatigue.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned

signatures does not appear reliable, considering that standard and challenged writings were

affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, the

testimony of the oppositors expert is insufficient to overcome that of the notary and the two

instrumental witnesses as to the wills execution, which were presented by Celso during the

trial.

Nor is there adequate evidence of fraud or undue influence. The fact that some heirs are more

favored than others is proof of neither. Diversity of apportionment is the usual reason for making

a testament; otherwise, the decedent might as well die intestate. The testamentary disposition

that the heirs should not inquire into other property and that they should respect the distribution

made in the will, under penalty of forfeiture of their shares in the free part, do not suffice to

prove fraud or undue influence. They appear motivated by the desire to prevent prolonged

litigation which, as shown by ordinary experience, often results in a sizeable portion of the

estate being diverted into the hands of non- heirs and speculators. Whether these clauses are

valid or not is a matter to be litigated on another occasion. It is also well to note that fraud and

undue influence are mutually repugnant and exclude each other; their joining as grounds for

opposing probate shows absence of definite evidence against the validity of the will.

Abangan v. Abangan, 40 Phil 476, AVANCENA

On September 19, 1917, CFI of Cebu admitted to probate Ana Abangans 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 atthe 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

appellantscontention, are defects whereby the probate of the will should have been denied.


6/15

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

testators last will, must be disregarded.

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

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.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.

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.


7/15

Whether or not the will is valid

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 theomission 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.

Source:http://lawsandfound.blogspot.com/2013/01/cagro-v-cagro-digest.html

Nera v. Rimando , G.R. L-5971 February 27, 1911 (Test of Presence)

At the time the will was executed, in a large room connecting with a smaller room by a doorway

where a curtain hangs across, one of the witnesses was in the outside room when the other

witnesses were attaching their signatures to the instrument.

The trial court did not consider the determination of the issue as to the position of the witness as

of vital importance in determining the case. It agreed with the ruling in the case of Jaboneta v. G

ustillo that the alleged fact being that one of the subscribing witnesses was in the outer room

while the signing occurred in the inner room, would not be sufficient to invalidate the execution

of the will.

The CA deemed the will valid.

Whether or not the subscribing witness was able to see the testator and other witnesses in the

act of affixing their signatures.

YES. The Court is unanimous in its opinion that had the witnesses been proven to be in the

outer room when the testator and other witnesses signed the will in the inner room, it would

have invalidated the will since the attaching of the signatures under the circumstances was not

done in the presenceof the witnesses in the outer room. The line of vision of the witness to

the testator and other witnesses was blocked by the curtain separating the rooms.The position of the parties must be such that with relation to each other at the moment of the

attaching the signatures, they may see each other sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or not they actualy saw each

other sign but whether they might have seen each other sign if they chose to doso considering

their physical, mental condition and position in relation to each other at the moment of the
http://lawsandfound.blogspot.com/2013/01/cagro-v-cagro-digest.htmlhttp://lawsandfound.blogspot.com/2013/01/cagro-v-cagro-digest.html


8/15

inscription of the signature.

Source:http://lawsandfound.blogspot.com/2013/01/nera-v-rimando-digest.html

Cruz v. Villasor, G.R. L-32213 November 26, 1973

The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz.

However, the petitioner opposed the allowance of the will alleging that it was executed through

fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument

was executed without the testator having been informed of its contents and finally, that it was

not executed in accordance with law.

One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was

acknowledged. Despite the objection, the lower court admitted the will to probate on the ground

that there is substantial compliance with the legal requirements of having at least 3 witnesses

even if the notary public was one of them.

Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

No. The will is not valid. The notary public cannot be considered as the third instrumental

witness since he cannot acknowledge before himself his having signed the said will. An

acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and before

means in front of or preceding in space or ahead of. The notary cannot split his personality into

two so that one will appear before the other to acknowledge his participation int he making of

the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral

arrangements, a function defeated if he were to be one of the attesting or instrumental

witnesses. He would be interested in sustaining the validity of the will as it directly involves

himself and the validity of his own act. he would be in an inconsistent position, thwarting the

very purpose of the acknowledgment, which is to minimize fraud.

Source:http://lawsandfound.blogspot.com/2013/01/cruz-v-villasor-digest.html

Javellana vs. Ledesma, G.R. No. L-7179

The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Led

esma 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 thisdecision alleging that the will were not executed in accordance with law.

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
http://lawsandfound.blogspot.com/2013/01/nera-v-rimando-digest.htmlhttp://lawsandfound.blogspot.com/2013/01/cruz-v-villasor-digest.htmlhttp://lawsandfound.blogspot.com/2013/01/cruz-v-villasor-digest.htmlhttp://lawsandfound.blogspot.com/2013/01/nera-v-rimando-digest.html


9/15

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.

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.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

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.Source:http://lawsandfound.blogspot.com/2013/02/javellana-v-ledesma-digest.html

Garcia v. Vasquez, G.R. No. L-26808 March 28, 1969

Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language she

knew an spoke. The other will was executed in December 1960 consisting of only one page,

and written in Tagalog. The witnesses to the 1960 will declared that the will was first read

silentlyby the testatrix before signing it. The probate court admitted the will.

The oppositors alleged that the as of December 1960, the eyesight of the deceased was so

poor and defective that she could not have read the provisions contrary to the testimony of the

witnesses.

Whether or not the will is valid

The will is not valid. If the testator is blind, Art. 808 of the New Civil Code (NCC) should apply.If t

he testator is blind or incapable of reading, he must be apprised of the contents of the will for

him to be able to have the opportunityto object if the provisions therein are not in accordance

with his wishes.

The testimony of her opthalmologist established that notwithstanding an operation to remove

her cataract and being fitted with the lenses, this did not improve her vision. Her vision remained

mainly for viewing distant objects and not for reading. There was no evidence that her vision

improved at the time of the execution of the 2nd will. Hence, she was incapable of reading her

own will. The admission of the will to probate is therefor erroneous.

Source:http://lawsandfound.blogspot.com/2013/02/garcia-v-vasquez-digest.html

Alvarado v. Gaviola, 226 SCRA 347 | JEN SUCCESSION REVIEWER

On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will entitled Huling Ha
http://lawsandfound.blogspot.com/2013/02/javellana-v-ledesma-digest.htmlhttp://lawsandfound.blogspot.com/2013/02/garcia-v-vasquez-digest.htmlhttp://lawsandfound.blogspot.com/2013/02/garcia-v-vasquez-digest.htmlhttp://lawsandfound.blogspot.com/2013/02/javellana-v-ledesma-digest.html


10/15

bilinwherein he disinherited an illegitimate son, petitioner Cesar Alvarado, and expressly

revoked a previously executed holographic will at the time awaiting probate before the RTC of

Laguna.

According to Bayani Ma. Rino, private respondent, he was present when the said notarial will

was executed, together with three instrumental witnesses and the notary public, where the

testator did not read the will himself, suffering as he did from glaucoma. Rino, a lawyer, drafted

the eight-page document and read the same aloud before the testator, the three instrumental

witnesses and the notary public, the latter four following the reading with their own respective

copies previously furnished them.

Thereafter, a codicil entitled Kasulatan ng Pagbabago ng Ilang Pagpapasiya na Nasasaad sa

Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvaradowas executed changing

some dispositions in the notarial will to generate cash for the testators eye operation. Said

codicil was likewise not read by Brigido Alvarado and was read in the same manner as with the

previously executed will.

When the notarial will was submitted to the court for probate, Cesar Alvarado filed his opposition

as he said that the will was not executed and attested as required by law; that the testator was

insane or mentally incapacitated due to senility and old age; that the will was executed under

duress, or influence of fear or threats; that it was procured by undue pressure and influence on

the part of the beneficiary; and that the signature of the testator was procured by fraud or trick.

Whether or not notarial will of Brigido Alvarado should be admitted to probate despite

allegations of defects in the execution and attestation thereof as testator was allegedly blind at

the time of execution and the double-reading requirement under Art. 808 of the NCC was not

complied with.

YES. The spirit behind the law was served though the letter was not. Although there should be

strict compliance with the substantial requirements of law in order to insure the authenticity of

the will, the formal imperfections should be brushed aside when they do not affect its purpose

and which, when taken into account, may only defeat the testators will. Cesar Alvardo was

correct in asserting that his father was not totally blind (of counting fingers at 3 feet) when the

will and codicil were executed, but he can be so considered for purposes of Art. 808. That Art.

808 was not followed strictly is beyond cavil. However, in the case at bar, there was substantial

compliance where the purpose of the law has been satisfied: that of making the provisions

known to the testator who is blind or incapable of reading the will himself (as when he is illiterate)

and enabling him to object if they do not accord with his wishes.

Rino read the testators will and codicil aloud in the presence of the testator, his three


11/15

instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator

affirmed, upon being asked, that the contents read corresponded with his instructions. Only then

did the signing and acknowledgment take place.

There is no evidence that the contents of the will and the codicil were not sufficiently made

known and communicated to the testator. With four persons, mostly known to the testator,

following the reading word for word with their own copies, it can be safely concluded that the

testator was reasonably assured that what was read to him were the terms actually appearing

on the typewritten documents.

The rationale behind the requirement of reading the will to the testator if he is blind or incapable

of reading the will to himself (as when he is illiterate), is to make the provisions thereof known to

him, so that he may be able to object if they are not in accordance with his wishes. Although

there should be strict compliance with the substantial requirements of law in order to insure the

authenticity of the will, the formal imperfections should be brushed aside when they do not affect

its purpose and which, when taken into account, may only defeat the testators will.

Tedoro CANEDA, et al.petitioners vs. Hon. COURT OF APPEALS and William CABRERA, as

Special Administrator of the Estate of Mateo Caballero, respondents.

On December 5, 1978, Mateo Caballero, a widower without any children, already in the twilight

years of his life executed a last will and testament before three attesting witnesses and he was

duly assisted by his lawyer and a notary public. It was declared therein that, among other things

that the testator was leaving by way of legacies and devises his real and personal properties to

specific persons, all of whom do not appear to be related to Mateo. Not long after, he himself

filed a petition before the CFI seeking the probate of his last will and testament but the

scheduled hearings were postponed, until the testator passed away before his petition could

finally be heard by the probate court. Benoni Cabrera, one of the legatees named in the will,

sought his appointment as special administrator of the testators estate but due to his death,

he was succeeded by William Cabrera, who was appointed by RTC which is already the probate

court.

PETITIONERS: The petitioners assail to the allowance of the testators will on the ground that

it was not executed in accordance with all the requisites of law since the testator was already in

a poor state of health such that he could not have possibly executed the same. Petitioners

likewise contend that the will is null and void because its attestation clause is fatally defective

since it fails to specifically state that the instrumental witnesses to the will witnessed the testator

signing the will in their presence and that they also signed the will and all the pages thereof in


12/15

the presence of the testator and of one another.

RESPONDENTS: The respondent, on the other hand, argue that Mateo was of sound and

disposing mind and in good health when he executed his will. Further, they also contend that

the witnesses attested and signed the will in the presence of the testator and of each other.

Whether or not the attestation clause in the last will of Mateo Caballero is fatally defective suchthat whether or not it affects the validity of the will.

Whether or not the attestation clause complies with the substantial compliance pursuant to

Article 809 of the Civil Code.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses

certify that the instrument has been executed before them and to the manner of the execution of

the same. It is a separate memorandum or record of the facts surrounding the conduct of

execution and once signed by the witnesses; it gives affirmation to the fact that compliance with

the essential formalities required by law has been observed. Under the 3rd paragraph of Article805, such a clause, the complete lack of which would result in the invalidity of the will, should

state:

The number of pages used upon which the will is written;

That the testator signed, or expressly cause another to sign, the will and

every page thereof in the presence of the attesting witnesses; and

That the attesting witnesses witnessed the signing by the testator of the

will and all its pages, and that the said witnesses also signed the will and

every page thereof in the presence of the testator and of one another.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the

will in the presence of the testator and of one another. Attestationand subscriptiondiffer

in meaning. Attestation is the act of sense, while subscription is the act of the hand. The

attestation clause herein assailed is that while it recites that the testator indeed signed the will

and all its pages in the presence of the three attesting witnesses and states as well the number

of pages that were used, the same does not expressly state therein the circumstance that said

witnesses subscribed their respective signatures to the will in the presence of the testator and of

each other. What is then clearly lacking is the statement that the witnesses signed the will and

every page thereof in the presence of the testator and of one another.

The absence of the statement required by law is a fatal defect or imperfection which must

necessarily result in the disallowance of the will that is here sought to be admitted to probate.

Petitioners are correct in pointing out that the defect in the attestation clause obviously cannot

be characterized as merely involving the form of the will or the language used therein which


13/15

would warrant the application of the substantial compliance rule, as contemplated in Article 809

of the Civil Code:

In the absence of bad faith, forgery, or fraud or undue and improper pressure and influence,

defects and imperfection in the form of attestation or in the language used therein shall not

render the will invalid if it is not proved that the will was in fact executed and attested in

substantial compliance with all the requirements of Article 805.

The defects and imperfection must only be with respect to the form of the attestation or the

language employed therein. Such defects or imperfection would not render a will invalid should

it be proved that the will was really executed and attested in compliance with Article 805. These

considerations do not apply where the attestation clause totally omits the fact that the attesting

witnesses signed each and every page of the will in the presence of the testator and of each

other. In such a situation, the defect is not only in the form or language of the attestation clause

but the total absence of a specific element required by Article 805 to be specifically stated in the

attestation clause of a will. That is precisely the defect complained of in the present case since

there is no plausible way by which it can be read into the questioned attestation clause

statement, or an implication thereof, that the attesting witness did actually bear witness to the

signing by the testator of the will and all of its pages and that said instrumental witnesses also

signed the will and every page thereof in the presence of the testator and of one another.

Source: UNIVERSITY OF THE CORDILLERAS COLLEGE OF LAW, WILLS AND

SUCCESSION, CASE DIGEST

Danilo ALUAD, et al., petitioners vs. Zenaido ALUAD, respondent

G.R. No. 176943, October 17, 2008

Petitioners mother, Maria Aluad and respondent Zenaido Aluad were raised by the childless

spouses Matilde and Crispin Aluad. Crispin was the owner of six lots of Pilar Cadastre, Capiz.

After his death, Matilde adjudicated the lots to herself and thereafter, she executed a Deed of

Donation of Real Property Inter Vivos in favor of Maria covering all the six lots. The Deed

provided that such will become effective upon the death of the Donor, but in the event that the D

onee should die before the Donor, the present donation shall be deemed rescinded. Provided,

however, that anytime during the lifetime of the Donor or anyone of them who should survive,

they could use, encumber or even dispose of any or even all of the parcels of the land.

Matilde sold one of the lots to Zenaido and subsequently, Matilde executed a last will and

testament devising four (4) of the lots to Maria and the remaining lot to Zenaido. Maria died a

few months after Matildes death. Thereafter, Marias heirs (herein petitioners) filed before the

RTC a complaint for declaration and recovery of ownership and possession of the two lots


14/15

conveyed and donated to Zenaido, alleging that no rights have been transmitted to the latter

because such lots have been previously alienated to them to Maria via the Deed of Donation.

The lower court decided in favor of the petitioners however, CA reversed said decision upon

appeal of Zenaido which held that the Deed of Donation was actually a donation mortis causa,

not inter vivos and as such it had to, but did not, comply with the formalities of a will. Due to the

denial of the petitioners Motion for Reconsideration, the present Petition for Review has been

filed.

Whether or not the Deed of Donation is donation inter vivos and whether or not such deed is

valid.

If so, whether or not Matilde Aluad has the right to convey the lots in question to Zenaido Aluad.

The Court finds the donation to Maria Aluad (petitioners mother) one of mortis causa, it having

the following characteristics:

It conveys no title or ownership to the transferee before the death of the transferor, orwhat amounts to the same thing, that the transferor should retain the ownership (full or

naked) and control of the property while alive;

That before the death of the transferor, the transfer should be revocable, by the

transferor at will, ad nutum, but revocability may be provided for indirectly by means of a

reserved power in the donor to dispose of the properties conveyed; and

That the transfer should be void of the transferor should survive the transferee.

The phrase in the earlier-qouted Deed of Donation to become effective upon the death of the

DONORadmits of no other interpretation than to mean that Matilde did not intend to transfer

the ownership of the six lots to petitioners mother during the formers lifetime. Further the

statement, anytime during the lifetime of the DONOR or anyone of them who should survive,

they could use, encumber or even dispose of any or even all the parcels of land herein donated,

means that Matilde retained ownership of the lots and reserved in her the right to dispose

them. For the right to dispose of a thing without other limitations than those established by law is

an attribute of ownership. The phrase, anyone of them who should surviveis out of sync.

For the Deed of Donation clearly stated that it would take effect upon the death of the donor,

hence, said phrase could only have referred to the donor.The donation being then mortis causa, the formalities of a will should have been observed but

they were not, as it was witnessed by only two, not three or more witnesses following Article 805

of the Civil Code. It is void and transmitted no right to petitioners mother. But even assuming a

rguendo that the formalities were observed, since it was not probated, no right to the two lots

was transmitted to Maria. Matilde thus validly disposed the lot to Zenaido by her last will and


15/15

testament, subject to the qualification that her will must be probated. With respect to the

conveyed lot, the same had been validly sold by Matilde to Zenaido.

wills random cases

Documents