AZUELA VS CA (2006)

FACTS:

Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo. However, this was
opposed by Geralda Castillo, who was the attorney-in-fact of “the 12 legitimate heirs” of the decedent.
According to her, the will was forged, and imbued with several fatal defects. Particularly, the issue
relevant in this subject is that the will was not properly acknowledged. The notary public, Petronio Y.
Bautista, only wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
ng Maynila.”

ISSUE:

Whether or not the will is fatally defective as it was not properly acknowledged before a notary public by
the testator and the witnesses as required by Article 806 of the Civil Code.

RULING:

Yes, 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.41 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.42 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.43 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.
 GARCIA VS VASQUEZ (1970)

FACTS:

Gliceria Avelino del Rosario died unmarried, leaving no descendents, ascendants, brother or sister. At the
time of her death, her estate consists mostly of real properties. Gliceria, during her lifetime, executed two
wills: one in 1956 and another dated in 1960.

Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned for probate of the alleged last
will, and for her appointment as special administratrix. The petition was opposed separately by several
groups of alleged heirs, one of which was pet. Rev. Fr. Lucio V. Garcia, a legatee named in the 1956 will.
The oppositions invariably charged that the instrument executed in 1960 was not intended by the
deceased to be her true will. Subsequently, Consuelo’s petition was granted. Oppositors petitioned the
court for the immediate removal of the special administratrix claiming that Consuelo and her husband,
had caused Gliceria to execute a fraudulent deed of absolute sale conveying to them 3 parcels of land
and the improvements.

Called to testify, instrumental witnesses uniformly declared that the 1960 will was already prepared and
was first read “silently” by the testatrix herself before she signed it. The oppositions challenge the
correctness of the Court’s ruling as the eyesight of Gliceria was so poor and defective that she could not
have read the will’s provisions. Declaration in court of Dr. Jesus Tamesis, Gliceria’s ophthalmologist, he
found her left eye to have cataract and denoting a possible glaucoma, a disease that leads to blindness.
Notwithstanding an operation, her vision remained mainly for viewing distant objects and not for reading
print. Thus, Gliceria del Rosario was incapable of reading and could not have read the provisions of the
will supposedly signed.

ISSUE:

Whether the probate of the will should be allowed?

RULING:

No. Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as
appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have
required observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged." library

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of
reading the will 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. That the aim of the law is to insure
that the dispositions of the will are properly communicated to and understood by the handicapped
testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will
should be read to the latter, not only once but twice, by two different persons, and that the witnesses have
to act within the range of his (the testator’s) other senses.

In connection with the will here in question, there is nothing in the records to show that the above
requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers
from infirmity that affects its due execution.
 TANCHANCO VS SANTOS (2020)

FACTS:

The decedent Consuelo Santiago Garcia passed away on August 14, 1985. They had two daughters,
Remedios Garcia Tanchanco (Remedios) and Natividad Garcia Santos (Natividad), Remedios
predeceased Consuelo in 1985 and lef behind her children, which included Catalino and Ronaldo
Tanchanco (collectively the Tanchanco’s)

Consuelo left a notarial will. Natividad prayed that letters testamentary be issued in her favor.

The Tanchanco’s filed an opposition to Natividad’s petition for probate alleging that:

1. The will’s attestation clause did not state the number of pages.
2. The will was written in Tagalog and not the English language usually used by Consuelo in most of
her legal documents.
3. Consuelo could not have gone to Makati where the purported will was notarized considering her
failing health and the distance of her residence in Pasay City.
4. Consuelo’s signature was forged.

They prayed for the disallowance of probate and for the proceeding to be converted into an intestate one.

Natividad contended that there was substantial compliance with Article 805 of the Civil Code. Although
the attestation clause did not state the number of pages comprising the will, the same was clearly
indicated in the acknowledgment portion. The Tanchanco’s allegations are not supported with proof.

The Tanchanco’s rebutted that the number of pages be found in the body of the will and not just in the
acknowledgment portion.

ISSUE:

Whether or not the will faithfully complied with the formalities required by law or whether there was
substantial compliance in this case?

RULING:

Yes. An examination of Consuelo’s will show that it complied with the formalities required by law. The
notarial acknowledgement states unequivocally that the will consists of 5 pages including the attestation
clause to wit:

“Ang Huling Habiling ito ay binubuo ng lima na dahoon, kasama ang dahong kinaroroonan
pagpapatunay at pagpapatotoong ito”

Under Article 809, the defects or imperfections must only be with respect to the form of the attestation or
the language employed therein. Such defects or imperfections would not render a will invalid should it be
proved that the will was really executed and attested in the compliance with Article 805 . In the regard,
however, the manner of proving the due execution and attestation has been held to be limited to merely
an examination of the will itself without resorting to the evidence aliunde, whether oral or written.

In the case at bar, the attestation clause indisputably omitted to mention the number of pages comprising
the will. Nevertheless, the acknowledgement portion of the will supplied that the will has 5 pages.
Undoubtedly, such substantially complied with Article 809. The mere reading and observation of the will
without resorting to the extrinsic evidence, yields the conclusion that there are actually five pages even if
the said information was not provided in the attestation clause. Thus, there was substantial compliance.

Additional points of the Court in the Tanchanco Case:

 Lawyers are not disqualified from being witnesses to a will; the subscribing witnesses testified to
the due execution of the will.
 The burden of proof is upon the Tanchanco’s to show that Consuelo could not have executed the
will or that her signature was forged.
 Bare allegations without corroborating proof the Consuelo was under duress in executing the will
cannot be considered.
 The will should be allowed probate.