Sources: Civil Code Volume 3 Succession by Paras, Comments & Jurisprudence on Succession by Jurado, Atty Gravador’s Discussion

& Slides, Personal case digests, EH405 2020 Case Digests, EH 402 2019 Case Digests

Solemnities make a will. So when an interpretation already

given assures such ends, any other interpretation
of will whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and
ARTICLE 804. Every will must be in writing and executed in a language frustrative of the testator's last will, must be
or dialect known to the testator. disregarded
ARTICLE 810. A person may execute a holographic will which must be
ARTICLE 804. Every will must be in writing and executed in a language
entirely written, dated, and signed by the hand of the testator himself.
or dialect known to the testator.
It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed. ARTICLE 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
KINDS OF WILLS testator’s name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
 ORDINARY OR NOTARIAL WILL (Art. 804)
credible witnesses in the presence of the testator and of one another.
 One which is executed in accordance with the The testator or the person requested by him to write his name
formalities prescribed by Arts. 804 to 808 of the and the instrumental witnesses of the will, shall also sign, as aforesaid,
Civil Code. One which requires, among other 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
things, an attestation clause, and acknowledgment
upper part of each page.
before a notary public. The attestation shall state the number of pages used upon
 See separate notes on Notarial Will below which the will is written, and the fact that the testator signed the will
 HOLOGRAPHIC WILL (Art. 810) and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental
 One entirely written, dated, and signed by the
witnesses, and that the latter witnessed and signed the will and all the
hand of the testator. Neither an attestation clause pages thereof in the presence of the testator and of one another.
nor an acknowledgment before a notary public is If the attestation clause is in a language not known to the
needed. witnesses, it shall be interpreted to them.
 See separate notes on Holographic Will below ARTICLE 806. Every will must be acknowledged before a notary public
 Note: by the testator and the witnesses. The notary public shall not be
 The classification of the will depends upon the
required to retain a copy of the will, or file another with the office of
the Clerk of Court.
formalities or solemnities which are observed by
the testator in its execution ARTICLE 807. If the testator be deaf, or a deaf-mute, he must
personally read the will, if able to do so; otherwise, he shall designate
 Under our laws we do not recognize the validity
two persons to read it and communicate to him, in some practicable
of nuncupative wills － wills orally made by the manner, the contents thereof.
testator in contemplation of death, and before
ARTICLE 808. If the testator is blind, the will shall be read to him twice;
competent witnesses once, by one of the subscribing witnesses, and again, by the notary
 Objective of the Formalities Required public before whom the will is acknowledged.
 The object of the solemnities surrounding the
ARTICLE 809. In the absence of bad faith, forgery, or fraud, or undue
execution of wills is to close the door against bad and improper pressure and influence, defects and imperfections in
faith and fraud, to avoid substitution of wills and the form of attestation or in the language used therein shall not
testaments and to guarantee their truth and 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
authenticity. Therefore the laws on this subject Article 805.
should be interpreted in such a way as to attain
ARTICLE 820. Any person of sound mind and of the age of eighteen
these primordial ends
years or more, and not blind, deaf or dumb, and able to read and
 The underlying and fundamental objective write, may be a witness to the execution of a will mentioned in Article
permeating the provisions on the law on wills in 805 of this Code.
this Project consists in the liberalization of the ARTICLE 821. The following are disqualified from being witnesses to a
manner of their execution with the end in view of will:
giving the testator more freedom in expressing his (1) Any person not domiciled in the Philippines;
last wishes but with sufficient safeguards and (2) Those who have been convicted of falsification of a
document, perjury or false testimony.
restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and ARTICLE 822. If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming subsequently
influence upon the testator.
incompetent shall not prevent the allowance of the will.
 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

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ARTICLE 823. If a person attests the execution of a will, to whom or to properly established that it is the testator’s usual
whose spouse, or parent, or child, a devise or legacy is given by such
signature
will, such devise or legacy shall, so far only as concerns such person,
 Who must subscribe or sign
or spouse, or parent, or child of such person, or any one claiming
under such person or spouse, or parent, or child, be void, unless there  The testator himself; or

are three other competent witnesses to such will. However, such  By the testator’s name by some other person in
person so attesting shall be admitted as a witness as if such devise or
the his presence and by his express direction
legacy had not been made or given.
 The person writing for the testator must not
ARTICLE 824. A mere charge on the estate of the testator for the be one of the 3 witnesses
payment of debts due at the time of the testator’s death does not
prevent his creditors from being competent witnesses to his will.
 It is the testator’s name that must be written
by the third person and not his own name. The
person signing need not even put his own name.
NOTARIAL WILLS
It must be written in the presence of the
I. GENERAL REQUIREMENTS (Arts. 804, 806)


testator and by his express direction

 (a) In Writing
 Note: This fact shall be stated in the attestation
 Every will must be in writing: both notarial and
clause
holographic wills
 Place of Signature
 Notarial wills may be typewritten
 It must be at the end of the instrument
 However, holographic wills must be entirely
The “end” means the logical end and not the
written in the handwriting of the testator


physical end
 The law does not recognize therefore oral wills
The logical end is where the last
 (b) In a Language or Dialect Known to the Testator


testamentary disposition ends

 It must be executed in a language or dialect
 If it is not signed at the end then it is not valid
known to the testator
 This is important since if after the signature
 Where a will is drawn up in the dialect of a
there are additional clauses or provisions, not only
certain locality and it is established that the
the clauses should be considered void but the
testator was living in or was a resident of that
whole will be be void and be denied probate.
locality, there arises a presumption that the will is
(b) The will must be attested and subscribed by three
drawn up in a language or dialect known to the
or more credible witnesses in the presence of the
testator, in the absence of evidence to the contrary
testator and of one another
 NOTE: These requirements are mandatory and is
 Attestation: Consists in the act of the witnesses of
applicable whether the will is notarial or holographic
witnessing the execution of the will in order to see
II. SPECIFIC REQUIREMENTS (Arts. 805, 806)
and take note mentally that such will has been
(a) The will must be subscribed at the end thereof by
executed in accordance with the requirements
the testator himself or by the testator’s name written
prescribed by law
by some other person in his presence and by his
 The will must be attested and subscribed by 3 or
express direction
more credible witnesses
 Subscription
 The attesting and subscribing of the witnesses must
 Refers to the manual act of affixing the signature
be in the presence of the testator and one another
to the instrument
 Rule on Non-interruption: Applies to
 What constitutes a signature would depend on
Signing of the testator in the presence of the
the habit of the individual, the customs of time and


witnesses
place, and the circumstances of each case.
Signing of the witnesses in the presence of
 What should be manifest is that whatever is


each other and the testator

used as a signature is actually intended as a
Note: Such is not the case when it comes to
signature


acknowledging the will before the notary public

 If the testator has been in the habit of using a
(see notes on acknowledgement)
rubber stamp or an engraved die or a affixes a cross
 “In the presence” does not necessarily require
against his name in making his signature, then he
actually seeing, but possibility of seeing without any
may properly use the same in signing the will so
physical obstruction
long as he intended that to be his signature
 The true test of presence of the testator and the
 However, if it is a mere cross without any
witnesses in the execution of a will is not whether
proof that it is his usual signature it does not
they actually saw each other sign, but whether they
have the same trustworthiness unless it can be

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might have seen each other sign, had they chosen (e) The will must contain an attestation clause
to do so, considering their mental and physical  Attestation Clause

condition and position with relation to each other  It is a memorandum or record of facts wherein

at the moment of inscription of each signature. the witnesses certify that the instrument has been
 It is sufficient that the attesting and signing is done executed before them, and that it has been
in the presence of one another or in a executed in accordance with the formalities
contemporaneous or in a single or continuous act or prescribed by law.
transaction. It does not matter whether the  Purpose

witnesses signed ahead of or after the testator  It is made for the purpose of preserving in a

(c) The testator or the person requested by him to permanent form a record of the facts that attended
write his name and the instrumental witnesses of the the execution of a particular will, so that in case of
will, shall also sign each and every page thereof, failure of the memory of the attesting witnesses, or
except the last, on the left margin other casualty, such facts may still be proved
 Pages to Sign  Who must sign

 All pages, on each and every page, except the  Since the attestation clause is a declaration of

last the instrumental witnesses and not of the testator,

 Every Page it is, therefore, clear that it must be signed by the
 The law says every “page” and not “sheet”. A witnesses, not by the testator
sheet has 2 pages, the front and the back. If both  What must be contained in the attestation clause

are used then both must be paged.  The number of pages used upon which the will is

 Place of Signature written

 The law provides that it must be signed on the  That the testator signed (or expressly caused

left margin another write his name) the will and every page
 However, the purpose is served if they are on thereof in the presence of the instrumental
the “right, top, or bottom margin,” for the only witnesses
purpose is to identify the pages used, and thus  That the instrumental witnesses witnessed and

prevent fraud. Thus, it may be subject to signed the will and all the pages thereof in the
substantial compliance presence of the testator and of one another
 Last Page  Effect of defects or imperfections

 Since the last page is already signed at the end, it  If the defect of the attestation clause goes into

need not be signed on the margin. the very essence of the clause itself or consists in
 Who must Sign the omission of one, some or all of the essential
 The testator or the person requested by him to facts which, according to law, must be stated in
sign his name; and such clause, and such omission cannot be cured by
 The instrumental witnesses of the will an examination of the will itself, the defect is
 Note: This fact shall be stated in the attestation substantial in character, as a consequence of which
clause the will is invalidated. This is true even where the
(d) All the pages of the will shall be numbered authenticity of the will which is offered for probate
correlatively in letters placed on the upper part of each is not assailed
page  Language of attestation

 Pages Numbered in Letters  The attestation may be in a language not known

 All the pages must be numbered in letters, to the witnesses

meaning “one”, “two”, “three” and so on.  If the attestation clause is in a language not

 However, “A”, “B”, “C” and so on, or “Page 1”, known to the witnesses, it shall be interpreted to
“Page 2”, “Page 3” and so on, or even just “1”, “2”, them
“3” and so on would amount to substantial  This is different from the language required of

compliance with the law. the will itself since it must be executed in a
 Place of the Numbers language known to the testator
 The law provides that it should be on the upper  Note: This may be subject to substantial
part of each page compliance. (See notes on Substantial Compliance)
 Note: The number of pages must be stated in the

attestation clause

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(f) The will must be acknowledged before a notary  Proof of Compliance

public by the testator and the witnesses  These facts need not be stated in the
 Acknowledgement attestation clause.
 An acknowledgment is the act of one who has  However, the fact of its compliance must be
executed a deed in going before some competent proved in the probate proceedings. Thus,
officer or court and declaring it to be his act or although it is not a requirement, it is wise to
deed. state these facts either in the notarial
 The law provides that the will must be acknowledgment or in the attestation clause
“acknowledged” and not merely subscribed and itself.
sworn to or a mere jurat  Rules if the Testator is Blind

 A jurat is that part of an affidavit whereby the  The will shall be read to him Twice

notary certifies that before him, the document  Once by one of the subscribing witnesses
was subscribed and sworn by the executor  Once again by the notary public who
 Notarial Acknowledgement acknowledged the will
 A notarial will must be acknowledge before a  Scope of the term “blind”

notary public by the testator and the witnesses  It is not limited to the medical definition of
 Note that it is the subscribing or attesting blindness but also extends to those
witnesses who should acknowledge together with incapacitated to read
the testator, not ordinary or other witnesses IV. SUBSTANTIAL COMPLIANCE (Art. 809)
 Note: Although the law say “every will”, it is  Effect of Substantial Compliance

understood to refer only to notarial or ordinary  It will not render the will invalid provided it

wills and not holographic wills. This is evident complies with the conditions
because the law says that the acknowledgment  Conditions

should be “by the testator and the witnesses,” and a  There must be absence of bad faith, forgery, or

holographic Will needs no witnesses. fraud, or undue and improper pressure and
 Not a Public Instrument: Thus, the notary public is influence
not required to  The defect and imperfections are only those:

 Retain a copy of the will; or  In the form of Attestation; or

 File another with the office of the clerk of court  Language used
 Execution of the Will and Acknowledgement  It must be proved that the will was in fact

 The execution of the will, the attesting and executed and attested in substantial compliance
signing of the testator and the witnesses, and the with all the requirements of Art. 805
acknowledgement need not be on the same  How Substantive Defect Can Be Cured

occasion  It is believed that defects of substance can be

 The notary public does not have to be present at cured only by evidence within the will itself — not
the execution of the will by evidence aliunde (extrinsic evidence).
 The testator and the instrumental witnesses do  The rule must be limited to disregarding those

not have to make the acknowledgment in the defects that can be supplied by an examination of
presence of one another. This is required only in the will itself
the attestation, not in the acknowledgment  Purpose: Doctrine of Liberal Interpretation

 The rule on non-interruption does not therefore  To attain the main objective of the new Civil

apply Code in the liberalization of the manner of

III. SPECIAL REQUIREMENTS (Arts. 807,808) executing wills. The Court’s policy is to require
 Rules in case Testator is Deaf, or Deaf-Mute satisfaction of the legal requirements in order to
 If he is able to read the will guard against fraud and bad faith, but without
 He must personally read the will undue or unnecessary curtailment of the
 If unable to read the will (Illiterate) testamentary privilege.
 He shall designate 2 persons to read it and  Solemnities in the execution of the will are

communicate its contents to him intended to protect the testator from all kinds of
 Designated Persons fraud and trickery but are never intended to be so
 The two persons designated need not be the rigid and inflexible as to destroy the testamentary
attesting witnesses privilege

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V. WITNESSES TO WILLS  His child

 Who are Competent (Arts. 820, 824)  Anyone claiming the right of said witness,
 At the time of attesting, the witness must: spouse, parent or child (Example: creditor of
 Be of sound mind said persons)
 Be at least 18 years old  Effect if Witness is in the Will
 Be able to read and write  There are only 3 witnesses: The Will will not
 Not be blind, deaf, or dumb be void in its entirety but only to the portion
 Be domiciled in the Philippines pertaining to said witness
 Not have been convicted by final judgement  Note: The law provides that he is
of falsification of a document, perjury, or false incapacitate to inherit but not incapacitated to
testimony be a witness. Thus, the Will will still be valid,
 Creditors as Witnesses but only void as to his portion since he cannot
 A creditor of the estate of the testator does inherit
not prevent him from being a competent witness  There are more than 3 witnesses: The
to his will witness would be entitled to inherit since there
 Although a creditor who acts as a witness is are 3 other competent witnesses to such will
disqualified to inherit, he is qualified to receive  Note: While the law says only devise or
his credit which cannot be considered a gift legacy, it should be understood to refer also to
 Notes: the institution of an heir (voluntary), and or even
 What is required is domicile and not of compulsory heirs also, but only insofar as he
citizenship has been given the free portion or an excess of
 When the will is executed in another country, his legitime.
it is not required that the witness must be  Effect if Witness is a Compulsory Heir
domiciled in the PH since the execution is not in  As to his Legitime: If the witness, spouse,
the PH parent or child (of the witness) is a compulsory
 It is not required that the language of the will heir, said heir is still entitled to the legitime,
is in the language known to the witnesses otherwise this would be an easy way to sort of
 Disqualifications (Art. 821) disinherit him without any justifiable cause
 Persons not domiciled in the Philippines  As to the Free portion: It shall be considered
 Note: If the will is not executed in the as void as to the free portion unless there are
Philippines, then this disqualification does not other 3 competent witnesses to the Will.
apply
 Those who have been convicted of falsification

of a document, perjury, or false testimony CASES

 Not of sound mind

 Less than 18 years old Notarial Wills: General Requirements

 Could not read and write

 Blind, deaf or dumb ABANGAN vs. ABANGAN

 Note:
G.R. No. 13431, November 12, 1919
 The notary public before whom the notarial
will is acknowledged is also disqualified to be a FACTS: In 1916, Ana executed a will. Said document
witness to the said will consists of two sheets: the first of which contains all of
 Supervening Incompetency (Art. 822)
the disposition of the testatrix, duly signed at the
 The attesting witness need only be competent at
bottom by Martin Montalban ( in the name and under
the time of attesting the direction of the testatrix) and by three witnesses.
 Thus, subsequent incompetence shall not The following sheet contains only the attestation clause
invalidate the will duly signed at the bottom by the three instrumental
 Competency of Interested Witnesses (Art. 823)
witnesses.
 Who could not Inherit
Neither of these sheets is signed on the left
 The witness margin by the testatrix and the three witnesses, nor
 His spouse numbered by letters, and these omissions, according to
 His parent appellants’ contention, are defects whereby the
probate of the will should have been denied.

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ISSUE: WON the will was duly executed and should be Marcelina and the attesting witnesses did not appear
admitted to probate YES before the notary public

RULING: In a will consisting two sheets the first of which ISSUE: WON the will should be probated NO
contains all the testamentary dispositions and is signed
at the bottom by the testator and three witnesses and RULING: In the opening paragraph of the will, it was
the second contains only the attestation clause and is stated that English was a language "understood and
signed also at the bottom by the three witnesses,it is known" to the testatrix. But in its concluding paragraph,
not necessary that both sheets be further signed on it was stated that the will was read to the testatrix "and
their margins by the testator and the witnesses, or be translated into Filipino language". That could only mean
paged. that the will was written in a language not known to the
It is not necessary that the testarix sign the 2nd illiterate testatrix and, therefore, it is void because of
page containing the attestation because that part of the the mandatory provision of article 804 of the Civil Code
will is only for the instrumental witnesses to sign. As the that every will must be executed in a language or dialect
name implied it applies only to the witnesses not the known to the testator.
testatrix. It has also been proven that Marcelina did not
The signing on the left margin of each page only appear before the notary public.
applied to the body of the will not the attestation
clause. ACOP vs. PIRASO
It is not prejudicial that the number of pages was G.R. No. 28946, January 16, 1929
not lettered as it is a mere formal requirement
The circumstance appearing in the will itself that Note: Not assigned in the syllabus but discussed during
same was executed in the city of Cebu and in the dialect class
of this locality where the testatrix was a neighbor is
enough, in the absence of any proof to the contrary, to The decedent's alleged will, being written in
presume that she knew this dialect in which her will is English, a language unknown to said decedent, cannot
written. be probated, because it is prohibited by the law, which
The object of the solemnities surrounding the clearly and positively requires that the will be written in
execution of wills is to close the door against bad faith the language or dialect known by the testator.
and fraud, to avoid substitution of wills and testaments
and to guaranty their “truth and authenticity.” Therefore VDA. DE JAVELLANA v. JAVELLANA
G.R. No. L-13781, January 30, 1960
the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But on the other
hand, also one must not lose sight of the fact that it is Note: Not assigned in the syllabus but discussed during
not the object of the law to restrain and curtail the class
exercise of the right to make a will. Thus, when the
object of the solemnities of wills is met (meaning the Where there is want of expression in the body of
authenticity has been ensured) , the other requisites the will itself or in the attestation clause that the
that tend to frustrate the testators last will must be testator knew the language in which the will was
disregarded. written, proof thereof may be established by evidence
aliunde. Althoug lack of such evidence may be cured by
SUROZA vs. HONRADO presumption of knowledge of the language or dialect
A.M. No. 2026-CFI, December 19, 1981 used in the will, no such presumption can arise where,
as in the case at bar, the will was executed in Spanish,
FACTS: Marcelina executed a notarial will when she was while the testator was a Visayan residing in San Juan,
73 years old. The will was written in English and was Rizal at the time of his death.
thumbarked by her, bequeathing all her estate to her Notarial Wills: Specific Requirements
supposed granddaughter Marilyn.
Nenita assailed the execution of the will stating ABANGAN vs. ABANGAN
the will was written in English, a language not known to G.R. No. 13431, November 12, 1919
the illiterate testatrix. Nenita also alleged that
See previous digest

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SUROZA vs. HONRADO (3) to certify that the three witnesses signed the
A.M. No. 2026-CFI, December 19, 1981 will i n all the pages thereof i n the presence of the
testator and of each other.
See previous digest Petitioner argues that there is no need to state
that Antero Mercado caused Atty. Florentino Javier to
GALA vs. GONZALES write the testator's name under his express direction
G.R. No. 30289, March 26, 1929
because the cross written by the testator after his name
is a sufficient signature and the signature of Atty.
Note: Not assigned in the syllabus but discussed during Florentino Javier is a surplusage. Petitioner's theory is
class that the cross is as much a signature as a thumbmark,
the latter having been held sufficient by this Court in
In executing her last will and testament, the the cases of De Gala vs. Gonzales and Ona.
testatrix placed her thumb-mark between her given
name and surname, written by another person. It was ISSUE: WON the attestation clause is fatally defective
not mentioned in the attestation clause that the YES
testatrix signed by thumb-mark, but the form of the
signature was sufficiently described and explained in RULING: The attestation clause is fatally defective for
the last clause of the body of the will. Held, that the failing to state that Antero Mercado caused Atty.
signature was valid. Florentino Javier to write the testator’s name under his
express direction.
LEANO vs. LEANO When the testator expressly caused another to
G.R. No. 9150, March 31, 1915
sign the former's name, this fact must be recited in the
Note: Not assigned in the syllabus but discussed during attestation clause. Otherwise, the will is fatally
class defective
It is not here pretended that the cross appearing
The placing of a cross, by a testatrix, opposite on the will is the usual signature of Antero Mercado or
her name attached to an instrument purporting to be even one of the ways by which he signed his name.
her last will and testament is a sufficient compliance After mature reflection we are not prepared to liken the
with the requirements of section 618 of the Code of mere sign of a cross to a thumbmark, and the reason i s
Civil Procedure as to the form and manner in which obvious. The cross cannot and does not have the
such instruments should be signed. trustworthiness of a thumbmark.
Where the cross appearing on a will is not the
MERCADO vs. LACUESTA usual signature of the testator or even one of the ways
G.R. No. L-4067, November 29, 1951 by which he signed his name, that cross cannot be
considered a valid signature.
FACTS: The will appears to have been signed by Atty.
Florentino Javier who wrote the name of Antero CARTAGENA vs. LIJAUCO
G.R. No. 9677, December 15, 1914
Mercado, followed below by "A ruego del testador" and
the name of Florentino Javier. Antero Mercado is
alleged to have written a cross immediately after his Note: Not assigned in the syllabus but discussed during
name. class
The CA ruled that the attestation clause failed to:
(1) to certify that the will was signed on all the It is an essential requisite in the due execution of
left margins of the three pages and at the end of the will a will that the testator sign it in the presence of the
by Atty. Florentine Javier at the express request of the three attesting witnesses.
testator in the presence of the testator and each and While the first part of section 618 of the Code of
every one of the witnesses; Civil Procedure does not expressly require that the
(2) to certify that after the signing of the name of testator sign the will in the presence of the three
the testator by Atty. Javier at the former’s request said attesting witnesses, the second part thereof does
testator has written & cross at the end of his name and require that fact to appear in the attestation clause, and
on the left margin of the three pages of which the will such signing is an essential requisite to the due
consists and at the end thereof; execution of the will.

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TESTATE ESTATE OF ABADA vs. ABAJA itself and without the need for presentation of evidence
G.R. No. 147145, January 31, 2005 aliunde.
Finally, Caponong-Noble alleges that the
FACTS: Abada and Toray, spouses, died without leaving attestation clause does not expressly state the
legitimate children. They left two separate wills where circumstances that the witnesses witnessed and signed
Abada's will was challenged by the petitioners for its the will and all its pages in the presence of the testator
alleged defects: and of each other. Precision of language in the drafting
(1) It was written in Spanish, a language or of an attestation clause is desirable. However, it is not
dialect not know to the testator; imperative that a parrot-like copy of the words of the
(2) The attestation clause did not express the statute be made. It is sufficient if from the language
number of pages and witnesses and the statement that employed it can reasonably be deduced that the
the witnesses actually witnessed the signing of the will attestation clause fulfills what the law expects of it.
by the testator and other witnesses
AZUELA vs. CA
ISSUE: WON the will is defective for failing to state that G.R. No. 122880, April 12, 2006
the language used in the will is a language known to the
testator and for the failure of the attestation clause to FACTS: The core of this petition is a highly defective
state the number of witnesses NO notarial will, purportedly executed by Eugenia E. I gsolo
( decedent), who died on 16 December 1982 at the age
RULING: There is no statutory requirement to state in of 80.
the will itself that the testator knew the language or The will, consisted of two ( 2) pages and written
dialect used in the will. This is a matter that a party may in the vernacular Pilipino.
establish by proof aliunde. Alipio testified that Abada The three named witnesses to the will affixed
used to gather Spanish-speaking people in their place their signatures on the left-hand margin of both pages
and in these gatherings, Abada and his companions of the will,but not at the bottom of the attestation
would talk in the Spanish language. The SC considered clause.
this as sufficient to prove that Abada speaks the Spanish Oppositor Geralda Castillo argued that the will
language was not executed and attested to in accordance with
SC belied the allegation of Noble that the law. She pointed out that decedent's signature did not
attestation clause failed to state the number of pages appear on the second page of the will, and the will was
on which the will is written. There was a phrase written not properly acknowledged.
in Spanish which, if translated in English states: “in the
left margin of each and every one of the two pages ISSUE: WON the failure of the attestation clause to
consisting of the same." This shows that the will consists state the number of pages is fatally defective YES
of two pages.
The Court, applying the rule on substantial RULING: The purpose of requiring the number of sheets
compliance ruled that: while the attestation clause does to be stated in the attestation clause is obvious; the
not state the number of witnesses, a close inspection of document might easily be so prepared that the removal
the will shows that three witnesses signed it. of a sheet would completely change the testamentary
An attestation clause is made for the purpose of dispositions of the will and in the absence of a
preserving, in permanent form, a record of the facts statement of the total number of sheets such removal
attending the execution of the will, so that in case of might be effected by taking out the sheet and changing
failure of the memory of the subscribing witnesses, or the numbers at the top of the following sheets or pages.
other casualty, they may still be proved. A will, The petitioner couldn’t cloak under the rulings in
therefore, should not be rejected where its attestation Singson v Florentino and Taboada v Hon. Rosal, In
clause serves the purpose of the law. Singson, although the attestation in the subject Will did
We rule to apply the liberal construction in the not state the number of pages used in the will, however,
probate of Abada’s will. Abada’s will clearly shows four the same was found in the last part of the body of the
signatures, that of Abada and of three other persons. It Will. While In the case of Taboada, it is discernible from
is reasonable to conclude that there are three witnesses the entire will that it is really and actually composed of
to the will. The question on the number of the only two pages duly signed by the testatrix and her
witnesses is answered by an examination of the will instrumental witnesses. The other page which is marked

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as "Pagina dos" comprises the attestation clause and is highlighted by the fact that it was segregated from
the acknowledgment. the other requirements under Article 805 and
Furthermore petitioner couldn’t invoke liberality as embodied in a distinct and separate provision.
discussed in the Civil Code Commission, because the
rule must be limited to disregarding those defects that AVERA vs. GARCIA
can be supplied by an examination of the will itself. G.R.No. 15566, September 14, 1921
The failure of the attestation clause to state the number
of pages on which the will was written remains a fatal , Note: Not assigned in the syllabus but discussed during
despite Article 809. class
The will itself also revealed several other defects,
for one, the attestation clause was not signed by the A will otherwise properly executed in accordance
instrumental witnesses. Further the requirement under with the requirements of existing law is not rendered
Article 806 that "every will must be acknowledged invalid by the fact that the paginal signatures of the
before a notary public by the testator and the testator and attesting witnesses appear in the right
witnesses" has also not been complied with. margin instead of the left.

ALAUD vs. ALAUD NAYVE vs. MOJAL

G.R. No. 176943, October 17, 2008 G.R.No. 21755, December 29, 1924

Note: Not assigned in the syllabus but discussed during Note: Not assigned in the syllabus but discussed during
class class

The donation being then mortis causa, the Where each and every page upon which the will
formalities of a will should have been observed but they is written was signed by the testator and the witnesses,
were not, as it was witnessed by only two, not three or the fact that the signatures on each page do not all
more witnesses following Article 805 of the Civil Code. appear on the left margin thereof does not detract from
Further, the witnesses did not even sign the the validity of the will.
attestation clause the execution of which clause is a The attestation clause must state the fact that
requirement separate from the subscription of the will the testator and the witness reciprocally saw the signing
and the affixing of signatures on the left-hand margins of the will, for such an act cannot be proved by the
of the pages of the will. mere exhibition of the will, if it is not stated therein. But
the fact that the testator and the witnesses signed each
LEE vs. TAMBAGO and every page of the will can be proved also by the
A.C. No. 5281(Res), February 12, 2008 mere examination of the signatures appearing on the
document itself, and the omission to state such evident
Note: Not assigned in the syllabus but discussed during fact does not invalidate the will.
class
ASPE vs. PRIETO
A notarial will, as the contested will in this case, G.R. No. L-17761, April 28, 1922
is required by law to be subscribed at the end thereof
by the testator himself. In addition, it should be Note: Not assigned in the syllabus but discussed during
attested and subscribed by three or more credible class
witnesses in the presence of the testator and of one
another. The omission of the attesting witnesses to sign
The will in question was attested by only two with the testator at the left margin of each page is a
witnesses, Noynay and Grajo. On this circumstance fatal defect which prevents the probate of the will, for it
alone, the will must be considered void. This is in is a violation of section 2 of Act No. 2645, and it is not
consonance with the rule that acts executed against the enough that the testator alone should sign at the left
provisions of mandatory or prohibitory laws shall be margin of each page
void, except when the law itself authorizes their validity.
The Civil Code likewise requires that a will must
be acknowledged before a notary public by the testator
and the witnesses. The importance of this requirement

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ICASIANO vs. ICASIANO UNSON vs. ABELLA

G.R. No. L-18979, June 30, 1964 G.R. No. 17857, June 12, 1922

Note: Not assigned in the syllabus but discussed during Note: Not assigned in the syllabus but discussed during
class class

The inadvertent failure of an attesting witness to Paging in inventory with Arabic numerals is in
affix his signature to one page of a testament, due to compliance with the spirit of the law, requiring that the
the simultaneous lifting of two pages in the course of paging of a will be made letters, and is just as valid as
signing, is not per se sufficient to justify denial of paging with letters A, B, C, etc., under the circumstances
probate. stated in the case of Aldaba vs. Roque

LOPEZ vs. LIBORO BARUT vs. CABACUNGAN

G.R. No. L-1787, August 27, 1948 G.R. No.6285, February 15, 1912

Note: Not assigned in the syllabus but discussed during FACTS: Barut applied for the probate of the will of
class deceased, Maria Salomon.
The testatrix stated in the will that being unable
The omission to put a page number on a sheet, if to read or write, the will was read to her by Ciriaco
that be necessary, may be supplied by other forms of Concepcion and Timotea Inoselda and that she had
identification more trustworthy than the conventional instructed Severo Agayan to sign her name to it as
numeral words or characters. testatrix.
The probate was contested by a number of the
MARTIR vs. MARTIR relatives of the deceased on various grounds.
G.R. No. 46995, June 21, 1940 The probate court found that the will was not
entitled to probate because “the handwriting of the
Note: Not assigned in the syllabus but discussed during person who it is alleged signed the name of the testatrix
class to the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will
The first sheet of the will bears no number and than to the person whose handwriting it was alleged to
the oppositor claims that this circumstance is fatal to its be” (i.e. The probate court denied probate because the
validity. The authenticity of this unnumbered page, signature seemed to not have been by Severo Agayan
however, is not questioned, nor the genuineness of the but by another witness)
signatures of the testator and of the witnesses on this
sheet. There is no suggestion either that the deceased ISSUE: WON the dissimilarity in handwriting sufficient to
had executed another will either before or after the deny probate of the will NO
execution of the controverted will. The principal object
of the requirement with reference to the numeration of RULING: The SC do not believe that the mere
the pages of the will is to forestall any attempt to dissimilarity in writing is sufficient to overcome the
suppress or substitute any of the pages thereof. In the uncontradicted testimony of all the witnesses that the
absence of collusion or fraud and there being no signature of the testatrix was written by Severo Agayan.
question regarding the authenticity of the first page and It is also immaterial who writes the name of the
the genuineness of the signatures appearing thereon, testatrix provided it is written at her request and in her
we hold that the mere fact that the first sheet is presence and in the presence of all the witnesses to the
unnumbered is not sufficient to justify the invalidation execution of the will.
of the will. Based on Section 618 of the Code of Civil
Procedure, it is clear that 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 3 witnesses and that they

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attested and subscribed it in her presence and in the requirement in the law that the testator must himself
presence of each other. sign the will, or that his name be affixed thereto by
It may be wise that the one who signs the Some other person in his presence and by his express
testator’s name signs also his own; but that is not direction.
essential to the validity of the will. It appearing that the above provision of the law
The court also held that the 3 cases cited by the has not been complied with, we are constrained to
lower court was not applicable. In those cases, the declare that the said will of the deceased Anacleta
person who signed the will for the testator wrote his Abellana may not be admitted to probate.
own name instead of the testator’s, so that the
testator’s name nowhere appeared in the will, and were NERA vs. RIMANDO
thus wills not duly executed G.R. No. L-5971, February 27, 1911

EX PARTE SANTIAGO FACTS: The only question raised by the evidence in this
G.R. No. 2002, August 18, 1905 case as to the due execution of the instrument
propounded as a will in the court below, is whether one
Note: Not assigned in the syllabus but discussed during of the subscribing witnesses was present in the small
class room where it was executed at the time when the
testator and the other subscribing witnesses attached
Where a will is not signed by the testator but by their signatures; or whether at that time he was outside,
some other person in his presence and by his direction, some eight or ten feet away, in a large room connecting
such other person should affix the name of the testator with the smaller room by a doorway, across which was
thereto, and it is not sufficient that he sign his own hung a curtain which made it impossible for one in the
name for and instead of the name of the testator outside room to see the testator and the other
subscribing witnesses in the act of attaching their
BALONAN vs. ABELLANA signatures to the instrument.
G.R. No. L-1513, August 31, 1960
ISSUE: What does subscribing “in the presence”…
FACTS: The Will sought to be probated is written in the mean?
Spanish language and consists of two (2) typewritten
pages. RULING: The Court is of the opinion that this
The first page is signed by Juan Bello and under subscribing witness was in the small room with the
his name appears typewritten ‘Por l a testadora testator and the other subscribing witnesses at the time
Anacleta Abellana, xxxx , Ciudad de Zamboanga’, (for when they attached their signatures to the instrument.
the testatrix Anacleta Abellana) This finding therefore necessitates admitting the
On the second page appears the signature of the document to probate as the last will and testament of
three ( 3) instrumental witnesses. the deceased.
The trial judge erred in relying on the case of
ISSUE: WON the signature of Dr. Juan A. Abello above Jaboneta vs Gustilo where the Court ruled that the
the typewritten statement "Por la Testadora Anacleta alleged fact that one of the subscribing witnesses was in
Abellana . . ., Ciudad de Zamboanga," complies with the the outer room when the testator and the other
requirements of the law prescribing the manner in describing witnesses signed the instrument in the inner
which a will shall be executed NO room, had it been proven, would not be sufficient in
itself to invalidate the execution of the will.
RULING: In the case of Barut vs. Cabacungan, 21 Phil., However such is not the same in this case, because,
461, we held that the important thing is that it clearly assuming arguendo, that had this subscribing witness
appears that the name of the testatrix was signed at her been proven to have been in the outer room at the time
express direction; it is unimportant whether the person when the testator and the other subscribing witnesses
who writes the name of the testatrix signs his own or attached their signatures to the instrument in the inner
not. room, it would have been invalid as a will, the attaching
In the case at bar, the name of the testatrix, of those signatures under such circumstances not being
Anacleta Abellana, does not appear written under the done "in the presence" of the witness in the outer room.
will by said Abellana herself, or by Dr. Juan Abello. This because the line of vision from this witness to the
There is, therefore, a failure to comply with the express

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testator and the other subscribing witnesses would

necessarily have been impeded by the curtain TABOADA vs. ROSAL
separating the inner room from the outer one "at the G.R. No. L-36033, November 5, 1982
moment of inscription of each signature."
In the case of Joboneta, the SC ruled that: "The FACTS: The alleged last will and testament of the late
true test of presence of the testator and the witnesses Dorotea Perez was written in the Cebuano-Visayan
in the execution of a Will is not whether they actually dialect, the and consisted of two pages.
saw each other sign, but whether they might have seen The first page contains the entire testamentary
each other sign, had they chosen to do so, considering dispositions and is signed at the end or bottom of the
their mental and physical condition and position with page by the testatrix alone and at the left hand margin
relation to each other at the moment of inscription of by the three (3) instrumental witnesses. The second
each signature." page which contains the attestation clause and the
It is when at the moment the witness signed the acknowledgment is signed at the end of the attestation
document he was actually and physically present and in clause by the three (3) attesting witnesses and at the
such position that he could see everything that took left hand margin by the testatrix.
place by merely casting his eyes in the proper direction ISSUE: For the validity of a formal notarial will, does
and without any physical obstruction to prevent him Article 805 of the Civil Code require that the testatrix
from doing so. and all the three instrumental and attesting witnesses
The decision merely laid down the doctrine that sign at the end of the will and in the presence of the
the question whether the testator and the subscribing testatrix and of one another NO
witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of RULING: Undoubtedly, under Article 805 of the Civil
the fact that their eyes were actually cast upon the Code, the will must be subscribed or signed at its end by
paper at the moment of its subscription by each of the testator himself or by the testator's name written
them, but that at that moment existing conditions and by another person in his presence, and by his express
their position with relation to each other were such that direction, and attested and subscribed by three or more
by merely casting the eyes in the proper direction they credible witnesses in the presence of the testator and of
could have seen each other sign. one another.
NOTE: The difference between the two cases was in Nera there was a It must be noted that the law uses the terms
curtain separating the room which would impede the vision of the attested and subscribed. Attestation consists in
witness. The Court held in Jaboneta that the mere fact the one of the
witnessing the testator's execution of the will in order
subscribing witness is outside the room is not sufficient to invalidate
the will as long as he can see the signing if he chose to which is not the to see and take note mentally that those things are
case in Nera done which the statute requires for the execution of a
TN: This case was highlighted by Atty Gravador and there were will and that the signature of the testator exists as a fact.
conflicting views during the discussion
On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose
of identification of such paper as the will which was
JABONETA vs. GUSTILO executed by the testator.
G.R. No.1641, January 19, 1906
Insofar as the requirement of subscription is
Note: Not assigned in the syllabus but discussed during concerned, it is our considered view that the will in this
class case was subscribed in a manner which fully satisfies
the purpose of identification.
The true test of presence of the testator and the The signatures of the instrumental witnesses on
witnesses in the execution of a will is not whether they the left margin of the first page of the will attested not
actually saw each other sign, but whether they might only to the genuineness of the signature of the testatrix
have seen each other sign, had they chosen to do so, but also the due execution of the will as embodied in
considering their mental and physical condition and the attestation clause.
position with relation to each other at the moment of The objects of attestation and of subscription were
inscription of each signature. fully met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary
dispositions, especially so when the will was properly

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identified by subscribing witness Vicente Timkang to be and improper pressure and influence, defects and
the same will executed by the testatrix. imperfections in the form of attestation or in the
language used therein shall not render the will invalid if
MITRA vs. SABLAN-GUEVARRA it is proved that the will was in fact executed and
G.R. No. 213994, April 18, 2018 attested in substantial compliance with all the
requirements of Article 805.
FACTS: Santos Mitra (petitioner) filed a petition for the An examination of the will in question reveals that
probate of the notarial will of Remedios Legaspi y Reyes the attestation clause indeed failed to state the number
(Legaspi) with prayer for issuance of letters of pages comprising the will. However, as was the
testamentary before the RTC. situation in Taboada, this omission was supplied in the
It was alleged that the petitioner is the de facto Acknowledgment. It was specified therein that the will
adopted daughter of Legaspi, and that the latter died is composed of four pages, the Acknowledgment
single. included.
Perpetua L. Sablan-Guevarra and Remegio L.
Sablan (respondents), who claim to be Legaspi's legal SINGSON vs. FLORENTINO
heirs, opposed the petition. G.R. No. L-4603, October 25, 1952
They aver that the will was not executed in
accordance with the formalities required by law; that Note: Not assigned in the syllabus but discussed during
since the last page of the will, which contained the class
Acknowledgement, was not signed by Legaspi and her
instrumental witnesses, the will should be declared If the last part of the body of the will contains a
invalid; that the attestation clause failed to state the statement that it is composed of eight pages, and the
number of pages upon which the will was written; and will itself shows that it is really and actually composed
that the will was executed under undue and improper of eight pages duly signed by the testator and his
pressure. instrumental witnesses, the will is valid even if its
attestation clause does not state the number of pages
ISSUE: WON the instrumental witnesses failed to sign or sheets upon which the will is written.
on each and every page on the left margin except the
last page NO CAGRO vs. CAGRO
WON the failure to state the number of pages G.R. No. 5826, April 29, 1953
comprising the will on the attestation clause render
such will defective NO FACTS: The main objection insisted upon by the
appellants is that the will is fatally defective, because its
RULING: There is no doubt that the requirement under attestation clause is not signed by the attesting
the Article 805 of the Civil Code, which calls for the witnesses. There is no question that the signatures of
signature of the testator and of the instrumental the three witnesses to the will do not appear at the
witnesses on each and every page of the will on the left bottom of the attestation clause, although the page
margin, except the last, was complied with. containing the same is signed by the witnesses on the
It should also be mentioned that the respondents left-hand margin.
take a skewed stance in insisting that the testator
Legaspi and the instrumental witnesses should have ISSUE: WON the will is fatally defective if the attestation
signed on the last page of the subject will. When Article clause is not signed by the attesting witnesses YES
805 of the Civil Code requires the testator to subscribe
at the end of the will, it necessarily refers to the logical RULING: The attestation clause is “a memorandum of
end thereof, which is where the last testamentary the facts attending the execution of the will, required by
disposition ends. As the probate court correctly law to be made by the attesting witnesses” and it must
appreciated, the last page of the will does not contain necessarily bear their signatures.
any testamentary disposition, it is but a mere An unsigned attestation clause cannot be
continuation of the Acknowledgment. considered as an act of the witnesses, since the
The substantial compliance rule is embodied in the omission of their signatures at the bottom thereof
Civil Code as Article 809 thereof, which provides that, negatives their participation.
In the absence of bad faith, forgery, or fraud, or undue The petitioner and appellee contends that
signatures of the three witnesses on the left-hand

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margin conform substantially to the law and may be influence; that the said instrument was executed
deemed as their signatures to the attestation clause. without the testator having been fully informed of the
This is untenable, because said signatures are in contents thereof, particularly as to what properties he
compliance with the legal mandate that the will be was disposing; and that the supposed last will and
signed on the left-hand margin of all its pages. If an testament was not executed in accordance with law.
attestation clause not signed by the three witnesses at One of the three instrumental witness is at the
the bottom thereof, be admitted as sufficient, it would same time the Notary Public to whom the will was
be easy to add such clause to a will on a subsequent supposed to have been acknowledged
occasion and in the absence of the testator and any or
all of the witnesses. ISSUE: WON the will was duly executed NO
Inasmuch as the signatures of the three witnesses
to the will do not appear at the bottom of the RULING: The notary public before whom the will was
attestation clause, although the page containing the acknowledged cannot be considered as the third
same is signed by the witnesses on the left-hand margin, instrumental witness since he cannot acknowledge
the will is fatally defective. The attestation clause is "a before himself his having signed the will. This cannot be
memorandum of the facts attending the execution of done because he cannot split his personality into two so
the will" required by law to be made by the attesting that one will appear before the other to acknowledge
witnesses, and it must necessarily bear their signatures. his participation in the making of the will.
Furthermore, the function of a notary public is,
CONSTANTINO vs. PEOPLE among others, to guard against any illegal or immoral
G.R. No. 225696, April 8, 2019 arrangements.That function would be defeated if the
notary public were one of the attesting or instrumental
Note: Not assigned in the syllabus but discussed during witnesses. For them he would be interested in
class sustaining the validity of the will as it directly involves
himself and the validity of his own act. It would place
Hence, an authentic attestation clause must not him in an inconsistent position and the very purpose of
only contain the names of the instrumental witnesses. the acknowledgment, which is to minimize fraud.
Mere mention of their names in the attestation clause To allow the notary public to act as third witness,
will not accurately represent the fact of their attestation or one of the attesting and acknowledging witnesses,
and subscription. Instead, the instrumental witnesses would have the effect of having only two attesting
must also sign the instrument before it is notarized by witnesses to the will.
the notary public.
JAVELLANA vs. LEDESMA
VENZON vs. ACHACOSO G.R. No. L-7179, June 30, 1955
G.R. No. L-3497, May 18, 1951
FACTS: CFI of Iloilo admitted to probate the documents
Note: Not assigned in the syllabus but discussed during in the Visayan dialect as the testament and codicil of
class deceased Ledesma Vda de Javellana.
Matea Ledesma, sister and nearest surviving
The fact that the three instrumental witnesses relative of said deceased, appealed from the decision,
signed the will immediately under the signature of the insisting that the said exhibits were not executed in
testator shows that they in fact attested, not only to the conformity with law.
genuineness of his signature, but also to the due
execution of the will as embodied in the attestation ISSUE: WON the will was executed by the testatrix in
clause. the presence of the instrumental witness YES
WON the acknowledgement clause was signed
CRUZ vs. VILLASOR and the notarial seal affixed by the notary public
G.R. No. L-32213, November 26, 1973
without the presence of the testatrix and the witness
NO
FACTS: Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said deceased, opposed the RULING: The testatrix executed the will in the presence
allowance of the will, alleging that the will was executed of the witnesses.
through fraud, deceit, misrepresentation and undue

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Whether or not the notary signed the certification An acknowledgment is the act of one who has
of acknowledgment in the presence of the testatrix and executed a deed in going before some competent
the witnesses, does not affect validity of the codicil. officer and declaring it to be his act or deed.
Unlike the Code of 1889 (Art. 699), the new Civil Code Acknowledgment can only be made before a
does not require that the signing of the testator, competent officer; a lawyer duly commissioned as a
witnesses and notary should be accomplished in one notary public.
single act. A notary public’s commission is the grant of
A comparison of Articles 805 and 806 of the new authority in his favor to perform notarial acts. It is
Civil Code reveals that while the testator and witnesses issued “within and for” a particular territorial jurisdiction
must sign in the presence of each other, all that is and the notary public’s authority is co-extensive with it.
thereafter required is that “every will must be In other words, a notary public is authorized to perform
acknowledged before a notary public by the testator notarial acts, including the taking of acknowledgments,
and the witnesses”. within that territorial jurisdiction only.
The subsequent signing and sealing by the notary Outside the place of his commission, he is bereft of
of his certification that the testament was duly power to perform any notarial act; he is not a notary
acknowledged by the participants therein is no part of public. Any notarial act outside the limits of his
the acknowledgment itself nor of the testamentary act. jurisdiction has no force and effect.
Hence their separate execution out of the presence of
the testatrix and her witnesses cannot be said to violate ECHAVEZ vs. DOZEN CONSTRUCTION
the rule that testaments should be completed without G.R. No. 192916 (Res), October 11, 2010
interruption
Note: Not assigned in the syllabus but discussed during
GUERRERO vs. BIHIS class
G.R. No. 174144, April 17, 2007
Even granting that the Acknowledgment
FACTS: Petitioner Bella A. Guerrero and respondent embodies what the attestation clause requires, we are
Resurreccion A. Bihis are children of deceased Tamio de not prepared to hold that an attestation clause and an
Buenaventura. acknowledgment can be merged in one statement. That
Guerrero filed a petition for the probate of the the requirements of attestation and acknowledgment
will of her mother. This was opposed by Bihis, alleging it are embodied in two separate provisions of the Civil
was not executed and attested as required by law, its Code (Articles 805 and 806, respectively) indicates that
attestation clause and acknowledgment did not comply the law contemplates two distinct acts that serve
with the requirements of the law, the signature of the different purposes. An acknowledgment is made by one
testatrix was procured by fraud and petitioner and her executing a deed, declaring before a competent officer
children procured the will through undue and improper or court that the deed or act is his own. On the other
pressure and influence. hand, the attestation of a will refers to the act of the
The will was acknowledged by the testatrix and instrumental witnesses themselves who certify to the
the witnesses at the testatrix’s residence in Quezon City execution of the instrument before them and to the
before Atty. Directo and that, at that time, Atty. Directo manner of its execution
was a commissioned notary public for and in Caloocan
City. ORTEGA vs. VALMONTE
G.R. No. 157451, December 16, 2005
ISSUE: WON the will “acknowledged” by the testatrix
and the instrumental witnesses before a notary public See also previous digest
acting outside the place of his commission satisfied the
requirement under Article 806 of the Civil Code NO Moreover, as correctly ruled by the appellate
court, the conflict between the dates appearing on the
RULING: In the execution of a notarial will, it is required will does not invalidate the document, "because the law
by law that it must be acknowledged before a notary does not even require that a [notarial] will ...be
public by the testator and the witnesses. This is one of executed and acknowledged on the same occasion."
the indispensable requisites for the validity of a will. More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses
who must also attest to it in the presence of the

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testator and of one another. Furthermore, the testator by 3 witnesses and acknowledged before notary public
and the witnesses must acknowledge the will before a and another, dated 29 December 1960, consisting of 1
notary public. In any event, we agree with the CA that page and written in Tagalog, witnessed by 4 witnesses
"the variance in the dates of the will as to its supposed and acknowledged before notary public
execution and attestation was satisfactorily and Testimony from an ophthalmologist revealed
persuasively explained by the notary public and the that Gliceria del Rosario was in capable of reading, and
instrumental witnesses. could not have read the provisions of the will
supposedly signed by her on 29 December 1960.
CRUZ vs. VILLASOR
G.R. No. L-32213, November 26, 1973 ISSUE: WON the 1960 will was duly executed NO

Note: Not assigned in the syllabus but discussed during RULING: With the condition of the eyesight of the
class deceased, there being no evidence that it had improved
in 1960, she was clearly incapable of reading and could
To allow the notary public to act as third witness, not have read the provisions of the will duly signed by
or one of the attesting and acknowledging witnesses, her. The execution of the will was characterized by
would have the effect of having only two attesting haste. Upon its face, the testamentary provisions, the
witnesses to the will which would be in contravention of attestation clause and acknowledgment were crammed
the provisions of Article 805 requiring at least three together into a single sheet of paper, and it contained
credible witnesses to act as such and of Article 806 several typographical errors. Plainly, the testament was
which requires that the testator and the required not prepared with any regard for the defective vision of
number of witnesses must appear before the notary the deceased.
public to acknowledge the will. The result would be, as The deceased Gliceria del Rosario was like a blind
has been said, that only two witnesses appeared before testator, and the due execution of her will would have
the notary public for that purpose. In the circumstances, required observance of the provisions of Article 808 of
the law would not be duly observed. the Civil Code which requires double reading
The rationale behind the requirement of reading
Notarial Wills: Special Requirements the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), is to
GARCIA vs. VASQUEZ make the provisions thereof known to him, so that he
G.R. Nos. L-26615, L-26884, L-27200, April 30, 1970
may be able to object if they are not in accordance with
his wishes. Since there is no proof that it was read to
FACTS: Gliceria Avelino del Rosario died unmarried, the deceased twice, the will, therefore, is not duly
leaving no ascendants, descendants nor siblings/ executed.
Consuelo S. Gonzales Vda. de Precilla, a niece of
the deceased, petitioned the CFI for probate of the ALVARADO vs. GAVIOLA
alleged last will and testament of del Rosario. G.R. No. 74695, September 14, 1993
The oppositions invariably charged that the
instrument executed in 1960 was not intended by the FACTS: Brigido Alvarado executed a notarial will
deceased to be her true will; that the signature of the wherein he disinherited an illegitimate son ( petitioner)
deceased appearing in the will was procured through and expressly revoked a previously executed
undue and improper pressure and influence on the part holographic will at the time awaiting probate.
of the beneficiaries and/or other persons; that the The notary public and by private respondent
testatrix did not know the object of her bounty; that the who were present at the execution, the testator did not
instrument itself reveals irregularities in its execution; read the final draft of the will himself. Instead, private
and that the formalities required by l aw for such respondent, as the lawyer who drafted the eight-paged
execution have not been complied with. document, read the same aloud in the presence of the
The CFI allowed probate of the 1960 will. testator, the three instrumental witnesses and the
The records of the probate proceeding fully notary public. The latter four followed the reading with
establish the fact that the testatrix, Gliceria A. del their own respective copies previously furnished them.
Rosario, during her lifetime, executed two wills, one on Brigido’s holographic will was subsequently
9 June 1956 consisting of 12 pages and written in admitted to probate.
Spanish, a language that she knew and spoke, witnessed

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A codicil was then executed changing some and to give him an opportunity to object if anything is
dispositions in the notarial will to generate cash for the contrary to his instructions.
testator’s eye operation. In the case at bar, private respondent read the
A petition for the probate of the notarial will and testator's will and codicil aloud in the presence of the
codicil was filed upon the testator’s death on 3 January testator, his three instrumental witnesses, and the
1979 by private respondent as executor. notary public. Prior and subsequent thereto, the
Petitioner opposed alleging that the will sought testator affirmed, upon being asked, that the contents
to be probated was not executed and attested as read corresponded with his instructions.
required by law; that the testator was insane or There is no evidence, and petitioner does not so
otherwise mentally incapacitated to make a will at the allege, that the contents of the will and codicil were not
time of i ts execution due to senility and old age; that sufficiently made known and communicated to the
the will was executed under duress, or influence of fear testator.
or threats; that i t was procured by undue and improper Although there should be strict compliance with
pressure and influence on the part of the beneficiary the substantial requirements of the law in order to
who stands to get the lion’s share of the testator’s insure the authenticity of the will, the formal
estate; and lastly, that the signature of the testator was imperfections should be brushed aside when they do
procured by fraud or trick. not affect its purpose and which, when taken into
account, may only defeat the testator's will.
ISSUE: WON Brigido was blind for purposes of Art. 808
at the time his “Huling Habilin” and its codicil were Notarial Wills: Substantial Compliance
executed YES
If so, was the double-reading requirement of VDA. DE GIL vs. VDA DE MURCIANO
said article complied with. NO G.R. No. L-3362, March 1, 1951

RULING: Brigido Alvarado was not totally blind at the FACTS: The CFI of Manila admitted to probate the
time the will and codicil were executed. However, his alleged will and testament of the deceased Carlos Gil.
vision on both eyes was only of "counting finger at three The oppositor Pilar Gil V da. de Murciano
(3) feet" by reason of the glaucoma which he had been appealed to the Supreme Court alleging that the lower
suffering from for several years. court erred in allowing the probate of said will on the
The rationale behind the requirement of reading ground that it was not executed according to the
the will to the testator if he is blind or incapable of requirements of the law.
reading the will himself (as when he is illiterate), is to The attestation clause of the Will in question
make the provisions thereof known to him, so that he does not state that the testator signed the will.
may be able to object if they are not in accordance with It declares only that it was signed by the
his wishes witnesses in the last paragraph of the body of the will
Clear from the foregoing is that Art. 808 applies itself.
not only to blind testators but also to those who, for ISSUE: WON failure to state in the attestation clause
one reason or another, are "incapable of reading their that the testator signed the will is fatal YES
will." Since Brigido Alvarado was incapable of reading
the final drafts of his will and codicil on the separate RULING: The will and testament is not valid. The
occasions of their execution due to his "poor," attestation clause does not state that the alleged
"defective," or "blurred" vision, there can be no other testator signed the will. It declares only that it was
course for us but to conclude that Brigido Alvarado signed by the witnesses. This is a fatal defect, for the
comes within the scope of the term "blind" as it is used precise purpose of the attestation is to certify that the
in Art. 808. testator signed the will, this being the most essential
Article 808 requires that in case of testators like element of the clause. Without it there is no attestation
Brigido Alvarado, the will shall be read twice; once, by at all.
one of the instrumental witnesses and, again, by the It is contended that the deficiency in the
notary public before whom the will was acknowledged. attestation clause is cured by the last paragraph of the
The purpose is to make known to the incapacitated body of the alleged will. At first glance, it is queer that
testator the contents of the document before signing the alleged testator should have made an attestation
clause, which is the function of the witnesses. But the

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important point is that he attests or certifies his own attesting witnesses, it certainly cannot be conclusively
signature, or, to be more accurate, his signature inferred therefrom that the said witnesses affixed their
certifies itself. It is evident that one cannot certify his respective signatures in the presence of the testator
own signature for it does not increase the evidence of and of each other since, as petitioners correctly
its authenticity. Consequently the last paragraph of the observed, the presence of said signatures only
will cannot cure in anyway the fatal defect of the establishes the fact that it was indeed signed, but it
attestation clause of the witnesses. does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and
CANEDA vs. CA of each other.
G.R. No. 103554, May 28, 1993 What is then clearly lacking, in the final logical
analysis, is the statement that the witnesses signed the
FACTS: Mateo Caballero, a widower without any will and every page thereof in the presence of the
children, executed a last will and testament and later testator and of one another. It is our considered view
sought for its probate. that the absence of that statement required by law is a
Petitioners, claiming to be nephews and nieces fatal defect or imperfection which must necessarily
of testator, filed a petition for intestate proceedings and result in the disallowance of the will that is here sought
opposed the probate. They alleged that the testator to be admitted to probate.
was already in a poor state of health such that he could Where the attestation clause totally omits the fact
not have possibly executed the same. that the attesting witnesses signed each and every page
RTC allowed the probate. of the will in the presence of the testator and of each
In the CA, they asserted therein that the will in other, the defect is not only in the form or the language
question is null and void for the reason that its of the attestation clause but the total absence of a
attestation clause is fatally defective since it fails to specific element required by Article 805 to be
specifically state that the instrumental witnesses to the specifically stated in the attestation clause of a will.
will witnessed the testator signing the will in their The rule on substantial compliance in Article 809
presence and that they also signed the will and all the cannot be invoked or relied on by respondents since it
pages thereof in the presence of the testator and of one presupposes that the defects in the attestation clause
another. can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which
ISSUE: WON the attestation clause was proper and would provide the data not expressed in the attestation
there was substantial compliance NO clause or from which it may necessarily be gleaned or
clearly inferred that the acts not stated in the omitted
RULING: Under Article 805, the complete lack of such textual requirements were actually complied with in the
attestation clause would result in the invalidity of the execution of the will. In other words, the defects must
will, as the attestation clause provides a strong legal be remedied by intrinsic evidence supplied by the will
guaranties for the due execution of a will and to insure itself.
the authenticity thereof.
It will be noted that Article 805 requires that the TESTATE ESTATE OF TENEFRANCIA vs. ABAJA
witnesses should both attest and subscribe to the will in G.R. No. L-2415, July 31, 1950
the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Note: Not assigned in the syllabus but discussed during
Attestation is that act of the senses, while subscription class
is the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was Among the formalities prescribed by law (section
published as such, and to certify the facts required to 618 of Act No. 190, as amended by Act No. 2645) to a
constitute an actual and legal publication; but to valid will is the requirement that the attestation clause
subscribe a paper published as a will is only to write on should state "the fact that the testator signed the will
the same paper the names of the witnesses, for the sole and every page thereof, or caused some other person to
purpose of identification write his name, under his express direction, in the
Further, SC ruled that While it may be true that the presence of three witnesses." This requirement was not
attestation clause is indeed subscribed at the end complied with in the present case, for the attestation
thereof and at the left margin of each page by the three, clause fails to state that fact.

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CALDE vs. CA Pilar Achacoso object to the probate claiming

G.R. No. 123655, January 19, 2001 that Jose executed a first will that named her as one of
the heirss.
FACTS: Decedent left a Will and Codicil both contained Pilar argued that the second will was void as it
her thumbmarks. They were also signed by three ( 3) has no attestation clause by the witnsesses, as it was
attesting witnesses each, and acknowledged before Jose who attested the will and the witnesses just signed
Tomas A. Tolete, then the Municipal Judge and Notary below his signature.
Public Ex-Officio of Bauko Mt. Province.
Private respondents, relatives of decedent, ISSUE: Whether or not a will and testament complies
opposed the Petition filed by Calde, on the following with Article 805, if the attestation clause was signed by
grounds: that the will and codicil were written in the testator himself and the witnesses only signed
Ilocano, a dialect that decedent did not know; that below such attestation clause. YES
decedent was mentally incapacitated to execute the
two documents because of her advanced age, illness RULING: The anomaly of where the attestation was
and deafness; that decedent’s thumbmarks were made by the testator himself and not by the witnesses
procured through fraud and undue influence; and that is not serious nor substantial to affect the validity of the
the codicil was not executed in accordance with law. will, as it appears that the instrumental witnesses
2 of the 6 witnesses testified that only one signed right after the signature of the testator.
ballpen was used in signing the 2 testamentary The Court ruled before that an instrumental
documents and were subscribed and attested by the witness does not merely attest to the signature of the
instrumental witnesses during a single occasion. testator but also to the proper execution of the will.
However, on the face of the document, the It had a liberal view in deciding the case when it
signatures of some of the attesting witnesses in the ruled that the reason behind the solemnities of the will
decedent’s will and its codicil were written in blue ink is to avoid bad faith and fraud, to avoid substitution of
while the others were in black will and to guarantee its truth and authenticity, but one
must also not lose sight that the object of the law is not
ISSUE: WON both the decedent’s last will and testament to restrain or curtail the exercise of the right to make a
and its codicil were subscribed by the instrumental will.
witnesses on separate occasions YES The Court also added that, when an interpretation
already given assures such ends, any other
RULING: The fact that the assertions of the petitioner’s interpretation whatsoever, that adds nothing but
witnesses are rife with contradictions particularly with demands more requisites entirely unnecessary, useless
regards to the signatures written in ballpens of different and frustrative of the testator's will, must be
colors, the implication is that the subscribing witnesses disregarded.
and the testatrix did not simultaneously sign each of the
documents in one sitting but did it piecemeal--a LOPEZ vs. LOPEZ
violation of Art. 805 of the Code. G.R. No. 18994 (Res), November 12, 2012

CUEVAS vs. ACHACOSO FACTS: Enrique Lopez died leaving his wife, Wendy
G.R. No. L-3497, May 18, 1951 Lopez, and their four legitimate children, petitioner
Richard and the respondents Diana, Marybeth and
FACTS: On October 10, 1945 (second will), Jose Venzon Victoria as compulsory heirs. Before Enrique’s death, he
executed a last will and testament in the presence of 3 executed a Last Will and Testament and constituted
witnesses. Richard as his executor and administrator.
On the attestation clause instead of having the Richard filed a petition for the probate of his
witnesses attest that they signed each pages of the will father's Last Will and Testament. However, Marybeth
and that they signed in the presence of one another, it and Victoria opposed contending that the last will and
was Jose Venzon who signed the attestation clause. The testament was not executed and attested as required
witnesses signed immediately below the attestation by law, and that it was procured by undue and improper
clause. pressure and influence on Richard.
The will named Cuevas and Venzon as heirs. RTC disallowed the probate.

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CA affirmed noting that while the 2) that the same was not executed and attested
acknowledgment of the will made mention of “7 pages as required by law (no proof that the witnesses
including the page on which the ratification and were credible)
acknowledgment are written” the will had actually 8 3) that at the time of the alleged execution of
pages including the acknowledgment portion, thus, the purported will the decedent lacked
necessitating the presentation of evidence aliunde to testamentary capacity due to old age and
explain the discrepancy. sickness and in the second alternative
4) that the purported will was procured through
ISSUE: WON the failure to state the number of pages of undue and improper pressure and influence on
the will in the attestation clause renders the the part of the principal beneficiary, and/or of
disallowance of the will YES some other person for her benefit.

RULING: The law is clear that the attestation must state ISSUE: WON proof of credibility of witness is required
the number of pages used upon which the will is written. and is material to the validity of the will NO
The purpose of the law is to safeguard against possible
interpolation or omission of one or some of its pages RULING: The Supreme Court rejected Gonzales’
and prevent any increase or decrease in the pages. contention that it must first be established in the record
While Article 809 allows substantial compliance for the good standing of the witness in the community, his
defects in the form of the attestation clause, Richard reputation for trustworthiness and reliableness, his
likewise failed in this respect. The statement in the honesty and uprightness, because such attributes are
Acknowledgement portion of the subject last will and presumed of the witness unless the contrary is proved
testament that it "consists of 7 pages including the page otherwise by the opposing party.
on which the ratification and acknowledgment are The term “credible” in the civil code is not the same
written" cannot be deemed substantial compliance. The as with the Naturalization Law where the law is
will actually consists of 8 pages including its mandatory that the petition for naturalization must be
acknowledgment which discrepancy cannot be supported by two character witnesses who must prove
explained by mere examination of the will itself but their good standing in the community, reputation for
through the presentation of evidence aliunde. trustworthiness and reliableness, their honesty and
uprightness. In probate proceedings, the instrumental
Notarial Wills: Witnesses to Wills: Who are Competent witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm
GONZALES vs. CA the formalities attendant to said execution.
G.R. No. 37453, May 25, 1979 The instrumental witnesses in Order to be
competent must be shown to have the qualifications
FACTS: Private respondent Lutgarda Santiago filed a under Article 820 of the Civil Code and none of the
petition for the probate of a will alleged to have been disqualifications under Article 821 and for their
executed by the deceased Isabel Gabriel testimony to be credible, that is worthy of belief and
The will submitted for probate which is entitled to credence, it is not mandatory that evidence
typewritten and in Tagalog, appears to have been be first established on record that the witnesses have a
executed barely two ( 2) months prior to the death of good standing in the community or that they are honest
Isabel Gabriel. It consists of five ( 5) pages, including the and upright or reputed to be trustworthy and reliable,
pages whereon the attestation clause and the for a person is presumed to be such unless the contrary
acknowledgment of the notary public were written. The is established otherwise.
signatures of the deceased Isabel Gabriel appear at the Celso Gimpaya was the driver of the testatrix and
end of the will on page four and at the left margin of all his wife Maria Gimpaya, merely a housekeeper, and
the pages that Matilde Orobia was a piano teacher to a grandchild
The petition was opposed by Rizalina Gabriel of the testatrix. But the relation of employer and
Gonzales, herein petitioner, assailing the document employee much less the humble or financial position of
purporting to be the will of the deceased on the a person do not disqualify him to be a competent
following grounds: testamentary witness.
1) that the same is not genuine and in the
alternative

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ARTICLE 804. Every will must be in writing and executed in a language  (c) Must be signed by the testator himself
or dialect known to the testator.
 The full or customary signature is needed,
ARTICLE 810. A person may execute a holographic will which must be hence, the full name is not required.
entirely written, dated, and signed by the hand of the testator himself.  OTHER REQUIREMENTS (Arts. 812, 813, 814)
It is subject to no other form, and may be made in or out of the
 Dispositions Written Below the Signature
Philippines, and need not be witnessed.
 Disposition below the signature must be
ARTICLE 811. In the probate of a holographic will, it shall be necessary
dated and signed by the testator, otherwise it is
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 void
handwriting of the testator. If the will is contested, at least three of  Note that it must be both dated and signed
such witnesses shall be required. for it be a valid testamentary dispositions
In the absence of any competent witness referred to in the
 Rules if Last Disposition is Signed and Dated
preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to.  The preceding dispositions which are signed
but not dated are validated
ARTICLE 812. In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by him in order
 Preceding dispositions which are not signed
to make them valid as testamentary dispositions. but dated are void
 Preceding dispositions which are not signed
ARTICLE 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last and not dated are void, unless written on the
disposition has a signature and date, such date validates the same date and occasion as the latter disposition
dispositions preceding it, whatever be the time of prior dispositions.  Note: These rules shall only apply if the latter
ARTICLE 814. In case of any insertion, cancellation, erasure or dispositions are both signed and date by the
alteration in a holographic will, the testator must authenticate the testator himself
same by his full signature.  If signed only, or dated only, then it shall
not affect the preceding dispositions
HOLOGRAPHIC WILLS  If done by another with or without the
 GENERAL REQUIREMENTS (Art. 804) testator’s consent, it will also not affect the
 (a) In writing preceding dispositions. Thus, those that void in
 (b) In a language or dialect known to the themselves, remain void and those that are
testator valid in themselves remain valid
 Note: See notes on General Requirements of  Authentication of Correction by Full Signature

Notarial Wills. Same requirement since Art. 804  Any insertion, cancellation, erasure, or
applies to both Notarial and Holographic Wills. alteration in a holographic will must be
 SPECIFIC REQUIREMENTS (Art. 810) authenticated by the testator by his signature
 (a) Must be entirely written in the hand of the  Full signature here means the full or usual or
testator himself customary signature (not necessarily the full
 If it is typewritten, printed, in a computer name)
print-out, or mimeographed, it is void.  Alteration without the full signature does not
 (b) Must be dated render the whole will void but only the
 In case of a revision of the Will, that of later alteration
date should be preferred  However, if what was altered was the date or
 If there is no date, the Will is null and void, the signature, the alteration without the full
since the date in the holographic Will is a signature makes the whole will void
mandatory requisite  REQUIREMENTS FOR PROBATE (Art. 811)
 Note: The same is not true for notarial Wills.  Probate means the allowance of a will by the

There is no requirement that notarial Wills court after its due execution has been proved
must be dated  Proof of identity of the signature and
 The date must also be written like the entire handwriting of the testator is important, otherwise,
will the will cannot be valid.
 Date consists of the year, month, and day as a  Even if the will is uncontested, probate of will is

general rule. However, this may be subject to required

substantial compliance  Probate is Uncontested

 At least one identifying (not necessarily a

subscribing) witness is required

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 Probate is Contested Respondent Luz R. Henson, another compulsory

 At least three such identifying witnesses heir filed an opposition to probate assailing the
should be required. purported holographic Will of Bibiana.
 No Competent Witness Available

 In either case, when no competent witness ISSUE: Whether or not the date "FEB./61" appearing on
are available, experts my be called upon by the the holographic Will of the deceased Bibiana Roxas de
court, if it deem it necessary Jesus is a valid compliance with the Article 810 of the
 Note: Even if there are ordinary witnesses Civil Code. YES
available, if they are unconvincing, the court may
still resort to experts RULING: The court mentioned that it will not be the first
 OTHER FEATURES OF A HOLOGRAPHIC WILL time that they will depart from a strict and literal
 No witnesses required application of the statutory requirements regarding the
 No marginal signatures on the page are required due execution of Wills. The prevailing policy is to
 No acknowledgement is required require satisfaction of the legal requirements in order to
 HOLOGRAPHIC WILL IS LOST OR DESTROYED guard against fraud and bad faith but without undue or
 If a holographic will has been lost or destroyed unnecessary curtailment of testamentary privilege.
without intent to revoke, and no other copy is If a Will has been executed in substantial
available, it can never be probated because the compliance with the formalities of the law, and the
best and only evidence therefor is the handwriting possibility of bad faith and fraud in the exercise thereof
of the testator in said will. is obviated, said Will should be admitted to probate.
 Evidence of sample handwritten statements of As a general rule, the "date" in a holographic Will
the testator cannot be admitted because there should include the day, month, and year of its execution.
would be no handwritten will with which to make a However, when as in the case at bar, there is no
comparison. appearance of fraud, bad faith, undue influence and
 However, a photostatic copy of the holographic pressure and the authenticity of the Will is established
will may be allowed because here, there can be a and the only issue is whether or not the date "FEB./61"
comparison. Evidently, the probate of a lost or appearing on the holographic Will is a valid compliance
destroyed will referred to in the last paragraph of with Article 810 of the Civil Code, probate of the
Art. 830 can only refer to a notarial, not a holographic Will should be allowed under the principle
holographic will. of substantial compliance. Hence, the petition was
granted.

CASES KALAW vs. RELOVA

G.R. No. L-40207, September 28, 1984
Holographic Wills: Specific Requirements
FACTS: Gregorio Kalaw (private respondent), filed a
ROXAS vs. DE JESUS petition for probate of the holographic will of his
G.R. No. 38338, January 28, 1985 deceased sister, Natividad Kalaw, claiming to be the
sole heir.
FACTS: After the death of spouses Andres G. de Jesus Such will, as first written, named Rosa Kalaw
and Bibiana Roxas de Jesus, intestate proceeding was (petitioner), a sister of the testatrix, as the sole heir.
filed by petitioner Simeon R. Roxas, the brother of the Petitioner Rosa opposed the probate alleging
deceased Bibiana. that the holographic Will contained alterations,
After Letters of Administration had been granted corrections and insertions without the proper
to the petitioner, he delivered to the lower court a authentication by the full signature of the testatrix as
document purporting to be the holographic Will of the required by Art. 814 of the Civil Code.
deceased Bibiana Rosa argued that the holographic Will, as first
He found a notebook belonging to the deceased written, should be given effect and probated so that she
Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 could be the sole heir.
thereof, a letter-will addressed to her children and
entirely written and signed in the handwriting of the ISSUE: Whether the original unaltered text, after
deceased Bibiana. The will is dated "FEB./61" subsequent alterations and insertions were voided by

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the trial court for lack of authentication by the (3) whether the decedent had the necessary
testatrix’s full signature, should be probated with Rosa testamentary capacity at the time the will was
as the sole heir NO executed; and
(4) whether the execution of the will and i ts
RULING: Ordinarily, when a number of erasures, signing were the voluntary acts of the decedent
corrections, and interlineations made by the testator in For purposes of probating non-holographic wills
a holographic Will have not been noted under his these formal solemnities include the subscription,
signature, the Will is not thereby invalidated as a whole, attestation, and acknowledgment requirements under
but at most only as respects the particular words erased, Articles 805 and 806 of the New Civil Code
corrected or interlined. In the case of holographic wills, what assures
In this case, the holographic will in dispute had authenticity is the requirement that they be totally
only one substantial provision, which was altered by autographic or handwritten by the testator himself, as
substituting the original heir with another; however, provided under Article 810 of NCC. Failure to strictly
such alteration did not carry the requisite of full observe other formalities will not result in the
authentication by the full signature of the testator. disallowance of a holographic will that is
Hence, the entire Will is voided or revoked for the unquestionably handwritten by the testator.
simple reason that nothing remains in the Will. A reading of Article 813 shows that its
To state that the Will as first written should be requirement affects the validity of the dispositions
given efficacy is to disregard the seeming change of contained in the holographic will, but not its probate.
mind of the testatrix˰ However, such change of mind If the testator fails to sign and date some of the
can neither be given effect because she failed to dispositions, the result is that these dispositions cannot
authenticate it in the manner required by law by affixing be effectuated. Such failure, however, does not render
her full signature˰ the whole testament void.
Likewise, a holographic will can still be admitted
SPS. AJERO vs. CA to probate notwithstanding non-compliance with the
G.R. No. 106720, September 15, 1994 provisions of Article 814.
Thus, unless the unauthenticated alterations,
FACTS: Petitioners instituted Special Proceedings for cancellations or insertions were made on the date of
allowance of decedent, Annie Sand’s holographic will the holographic will or on the testator’s signature, their
Private respondent opposed the petition on the presence does not invalidate the will itself. The lack of
grounds that: neither the testament’s body nor the authentication will only result in the disallowance of
signature therein was in decedent’s handwriting, it such changes.
contained alterations and corrections which were not It is also proper to note that the requirements of
duly signed by decedent, and the will was procured by authentication of changes and signing and dating of
petitioners through improper pressure and undue dispositions appear in provisions (Article 813 and 814)
influence separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
ISSUE: WON non-compliance with Articles 813 and 814 810).
will cause the denial of probate of a holographic will NO This separation and distinction adds support to
the interpretation that only the requirements of Article
RULING: The requirements under Art 813 and 814 on 810 of the NCC – and not those found in Articles 813
the authentication of changes and signing and dating of and 814 – are essential to the probate of a holographic
dispositions refer only to the validity of the dispositions, will.
but not its probate.
In a petition to admit a holographic will to LABRADOR vs. CA
probate, the only issues to be resolved are: G.R. Nos. 83843-44, April 5, 1990
(1) whether the instrument submitted is,
indeed, the decedent’s last will and testament FACTS: On 1973, Melecio Labrador died leaving behind
(2) whether said will was executed in a parcel of land and a holographic will. Sagrado
accordance with the formalities prescribed by Labrador, one of the heirs, filed a quo petition for
law probate of the said holographic will left by his father.
Another heir Jesus Labrador, brother of Sagrado, filed

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an opposition to the petition on the ground that the RULING: In this case, the expert cannot testify because
holographic will has been extinguished by implication of there is no way to compare the alleged testament with
law, alleging that before the death of their father a other documents admittedly, or proven to be, in the
deed of absolute sale was executed in his favor and the testator’s hand.
other oppositor. He then sold the lot transferred to him The court ruled that the execution and the
to Navat. contents of a lost or destroyed holographic will not be
Sagrado moved for the annulment of the Deed of proved by the bare testimony of witnesses who have
Sale arguing that he had already acquired by devise the seen and/or read such will.The will itself must be
said parcel of land under the holographic will and that presented; otherwise, it shall produce no effect. The law
the said Deed of Absolute Sale was fictitious. regards the document itself as material proof of
Sagrado argued to the validity of the holographic authenticity.
will despite the fact that the location of the date in
holographic will is not in its usual place. RODELAS vs. ARANZA
G.R. No. L-58509, December 7, 1982
ISSUE: WON the holographic will is valid YES
FACTS: A petition for probate of the holographic will of
RULING: The law does not specify a particular location Bonilla was filed by petitioner.
where the date should be placed in the will. The only Respondent opposed the probate alleging that
requirements are that the date be in the will itself and alleged hollographic will itself,and not an alleged copy
executed in the hand of the testator. These thereof, must be produced, otherwise it would produce
requirements are present in the subject will. Moreover, no effect
the testator plainly knew that what he was executing
was a will. There being no defect in the holographic will, ISSUE: WON a holographic will which was lost or cannot
there is no reason why the holographic will should not be found can be proved by means of a photostatic copy
be probated. YES

Holographic Wills: Requirements for Probate RULING: Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will
GAN vs. YAP by the court after its due execution has been proved.
G.R. No. L-12190, August 30, 1958 The probate may be uncontested or not. If uncontested,
at least one Identifying witness is required and, if no
FACTS: Gan initiated proceedings to probate the witness is available, experts may be resorted to. If
holographic will allegedly executed by the deceased. contested, at least three Identifying witnesses are
Yap (Felicidad’s husband) opposed and asserted required.
that the deceased had not left any will, and had not However, if the holographic will has been lost or
executed any testament during the lifetime. destroyed and no other copy is available, the will cannot
Gan offered to the court alleged witnesses to the be probated because the best and only evidence is the
said holographic will, and state that Felicidad handwriting of the testator in said will.
mentioned to Vincent her desire to make a will. She It is necessary that there be a comparison
confided that it would be useless if Yap knew about it. between sample handwritten statements of the
Allegedly, Felicidad executed a holographic will in the testator and the handwritten will. But, a photostatic
presence of her niece, Felina. But for some reason, Gan copy or xerox copy of the holographic will may be
could not present the holographic will to the court to allowed because comparison can be made with the
have the will probated. standard writings of the testator.
Yap who was constantly at her side swore that
Felicidad made no will, and could have made no will on AZAOLA vs. SINGSON
the day when she died. G.R. No. L-14003, August 5, 1960

NOTE: The ruling in this case is in conflict with the ruling in the case of
ISSUE: WON a holographic will be probated upon the
Codoy v Calugay. However, I am of the opinion that the Codoy case is
testimony of witnessed who have allegedly seen it and prevailing since it is of a later ruling. Furthermore, it is the case cited in
who declare that it was in the handwriting of the the texbooks.
testator NO

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FACTS: Petitioner filed for probate of a holographic to attest the authenticity of the handwriting of the
will. testator. It becomes mandatory when the law used
The probate was denied on the ground that it did “shall'' connoting an imperative obligation.
not prove sufficiently under Art 811 that the body of the However, SC also ruled that the witnesses
will was written in the handwriting of the testatrix. presented did not fully establish the certainty that the
Under Art 811, the proponent must present 3 holographic will was in the handwriting of the deceased.
witnesses. Hence, the three-witness requirement was not
Petitioner argued that he was not bound to complied with.
produce more than one witness because the will was NOTE: The ruling in this case is in conflict with the ruling in the case of
Azaola v. Singson. However, I am of the opinion that the Codoy case is
uncontested and that Art 811 does not mandatorily
prevailing since it is of a later ruling. Furthermore, it is the case cited in
require production of 3 witnesses the texbooks.
ISSUE: WON Art 811 is mandatory or merely permissive
PERMISSIVE
Incorporation
RULING: The provision is merely permissive. The rule
that requires 3 witnesses if the will is contested was
of document
derived from the rule established for notarial wills. by reference
But if the will is holographic, no witness need be
presented (Art. 810), and the rule (ART. 811) requiring
production of three witnesses must be deemed merely ARTICLE 827. If a will, executed as required by this Code, incorporates
permissive. into itself by reference any document or paper, such document or
Since the will is uncontested, petitioner was not paper shall not be considered a part of the will unless the following
required to present more than one witness. But even if requisites are present:
(1) The document or paper referred to in the will must be in
the genuineness of the holographic will were contested, existence at the time of the execution of the will;
Article 811 of our present Civil Code cannot be (2) The will must clearly describe and identify the same, stating
interpreted as to require the compulsory presentation among other things the number of pages thereof;
of three witnesses to identify the handwriting of the (3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
testator, under penalty of having the probate denied. (4) It must be signed by the testator and the witnesses on each
Since no witness may have been present at the and every page, except in case of voluminous books of account or
execution of a holographic will, none being required by inventories.
law, it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter INCORPORATION OF DOCUMENT BY REFERENCE
beyond the control of the proponent.  PURPOSE
 To provide for those cases when a testator
CODOY vs. CALUGAY wishes to incorporate to his will only by reference
G.R. No. 123486, August 12, 1999
(i.e., without copying the whole thing) certain
documents or papers, especially inventories and
FACTS: Respondent filed a probate for the holographic
book of accounts. Thereby, the testator is able to
will.
save time and energy.
Petitioner opposed alleging that the will was a
 Said documents or inventories, when referred to
forgery.
in a notarial will, do not need any attestation clause,
Respondent present 6 witnesses which attested
because the attestation clause of the will itself is
to the genuiness of the signature of the deceased.
sufficient
Petitioner instead of presenting their evidence,
 REQUISITES
filed a demurrer to evidence which was granted by the
 The document or paper referred to in the will
court. Respondent's petition for probate was therefore
must be in existence at the time of the execution
denied
of the will
 Reference to future papers will render the
ISSUE: WON Art 811 is mandatory or merely permissive
incorporation void. However, the will itself
MANDATORY
remains valid
RULING: It becomes a mandatory requirement if the
holographic will is contested for at least three witnesses

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 The will must refer to the papers as having ISSUE: WON the will should be admitted to probate
been already made; it is not enough that in truth YES
it was already in existence
 The will must clearly describe and identify the RULING: In view of the fact that the inventory is
same, stating among other things the number of referred to in the will as an integral part of it, we find
pages thereof that the foregoing attestation clause is in compliance
 It must describe the locations and general with section 1 of Act No. 2645, which requires this
appearance of the document solemnity for the validity of a will, and makes
 It must be identified by clear and satisfactory unnecessary any other attestation clause at the end of
proof as the document or paper referred to the inventory.
therein As to the paging of the will in Arabic numerals,
 Parol evidence or evidence aliunde is needed instead of in letters, this way of numbering the pages of
 Number of pages must be stated even in the a will is in compliance with the spirit of the law,
case of voluminous books of accounts or inasmuch as either one of these methods indicates the
inventories correlation of the pages and serves to prevent the
 It must be signed by the testator and the abstraction of any of them.
witnesses on each and every page, except in case
of voluminous books of account or inventories codicils
 While not every page has to be signed, still it
is believed that there must be a signature on at
least several pages thereof for the purpose of ARTICLE 825. A codicil is a supplement or addition to a will, made
identifying same as the documents really after the execution of a will and annexed to be taken as a part thereof,
by which any disposition made in the original will is explained, added
referred to
to, or altered.
 INCORPORATION IN NOTARIAL WILLS
ARTICLE 826. In order that a codicil may be effective, it shall be
 General Rule: Only notarial wills can have
executed as in the case of a will.
incorporation by reference
 Exceptions:
CODICLS
 If a holographic will happen to have at least
 DEFINITION
three credible and qualified witnesses, there can
 Derived from the latin “codex” and literally
be a proper incorporation by reference.
means a little code or a little will (although, of
 If a holographic will with no witnesses refers
course, physically it may be larger or longer than a
to a document entirely written, dated, and
will).
signed in the handwriting of the testator, there
 It imports a reference to some prior paper as a
can also be a proper incorporation by reference.
will
 After execution of a will, the testator may either

CASES make a codicil or a new will

 A chief characteristic of a codicil is it is a

Incorporation of document by reference: Purpose supplement or additional to will to explain, add to

or alter the disposition made in the original will
UNSON vs. ABELLA  WHEN MADE
G.R. No. 17857, June 12, 1922  A codicil, since it refers to a will, cannot be made

before a will; it is always made after.

FACTS: Doña Josefa Zalamea y Abella, single, executed  However, a codicil may also be later on revoked

her last will and testament with an attached inventory by another will or codicil
of her properties in the presence of 3 witnesses, who  CONFLICT BETWEEN WILL AND CODICIL
signed with her all the pages of said documents.  In case of conflict between a will and a codicil, it

The the executor applied for its probate after she is understood that the codicil should prevail, it
died. being the later expression of the testator’s wishes.
The probate of the inventory was opposed on the  FORMALITIES REQUIRED
ground that it has no attestation clause in it, and it  A codicil shall be executed in the same manner

paging is made in arabic numerals and not in letters and with the same formalities as a will otherwise it
will be void

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 A valid will can never be revoked by an invalid  WHEN REVOCATION MAY BE EFFECTED (Art. 828)
codicil  A will may be revoked by the testator at any
 A notarial will may be revoked by either a time before his death
notarial or holographic codicil  Until the death of the testator, a will is
 A holographic will may be revoked by a ambulatory and revocable, since after all, the will
holographic or notarial codicil concerns a disposition of properties and rights
effective after death.
 GOVERNING LAWS (Art. 829)
 Revocation Outside the Philippines
Revocation of wills  Not Domiciled in the Philippines
and testamentary  Law of the place where the will was made;
disposition or
 Law of the place of the testator’s domicile
at that time
ARTICLE 828. A will may be revoked by the testator at any time before
his death. Any waiver or restriction of this right is void.
 Domiciled in the Philippines
 Law of the Philippines since he is domiciled
ARTICLE 829. A revocation done outside the Philippines, by a person here
who does not have his domicile in this country, is valid when it is done
according to the law of the place where the will was made, or  General rule of lex loci celebrationis of the
according to the law of the place in which the testator had his revocation (where the revocation was
domicile at the time; and if the revocation takes place in this country, executed)
when it is in accordance with the provisions of this Code.  Revocation in the Philippines

ARTICLE 830. No will shall be revoked except in the following cases:  Law of the Philippines, whether or not the
(1) By implication of law; or domicile is in the Philippines
(2) By some will, codicil, or other writing executed as provided
in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with MODES OF REVOCATION (Art. 830)
the intention of revoking it, by the testator himself, or by some other 1. By Implication of Law
person in his presence, and by his express direction. If burned, torn,
 This revocation is produced by operation of law
cancelled, or obliterated by some other person, without the express
direction of the testator, the will may still be established, and the when certain acts or events take place after a will has
estate distributed in accordance therewith, if its contents, and due been made, rendering void or useless either the
execution, and the fact of its unauthorized destruction, cancellation, whole will or certain testamentary dispositions
or obliteration are established according to the Rules of Court.
therein.
ARTICLE 831. Subsequent wills which do not revoke the previous ones  Reason
in an express manner, annul only such dispositions in the prior wills as  There may be certain changes in the family or
are inconsistent with or contrary to those contained in the later wills.
domestic relations or in the status of his property,
ARTICLE 832. A revocation made in a subsequent will shall take effect, such that the law presumes a change of mind on
even if the new will should become inoperative by reason of the
the part of the testator.
incapacity of the heirs, devisees or legatees designated therein, or by
 Instances of Revocation by Implication of Law
their renunciation.
 When after the testator has made a will, he
ARTICLE 833. A revocation of a will based on a false cause or an illegal
cause is null and void. sells, or donates the legacy or devise (Art. 957[2])
 When the testator donates or sells the
ARTICLE 834. The recognition of an illegitimate child does not lose its
property bequeathed, the legacy or devise shall
legal effect, even though the will wherein it was made should be
revoked. be without effect. There is implied revocation of
the disposition. The presumption under the law
REVOCATION OF WILLS is that there has been a change of intention.
 DEFINITION  Example: T gave A a legacy of T’s Volvo car in
 Revocation as applied to wills is an act of the his will. A year later, T sold the car to B for P2M.
mind, terminating the potential capacity of the will  Upon T’s death, A will get nothing because
to operate at the death of the testator, manifested T’s alienation of the car revoked the legacy
by some outward or visible act or sign, symbolic automatically and by operation of law
thereof
 It is an act to annul a will in whole or in part

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 Provisions in a will in favor of a spouse who has T gave his P1M credit to L. After the execution of
given cause for legal separation (Art. 106[4]) the will, T brought an action against D for the
 The offending spouse shall be disqualified recovery of the debt.
from inheriting from the innocent spouse by  The bringing of the action revokes T’s legacy.
intestate succession. Moreover, provisions in This is true, whether or not by the time T dies,
favor of the offending spouse made in the will of D shall have paid the debt. (For it is the
the innocent one shall be revoked by operation bringing of the action that revokes, not the
of law the moment a decree of legal separation payment itself).
is granted  Example 2 (Remission of debt of a legatee): T
 When an heir, legatee, or devisee commits an is L’s creditor to the amount of P1 million. In his
act of unworthiness (see Art. 1032) will the debt was remitted (waived or condoned)
 (1)Parents who have abandoned their  If T brings an action against L for the
children or induced their daughters to lead a recovery of the debt, then the legacy is
corrupt or immoral life, or attempted against revoked
their virtue;  When one, some or all of the compulsory heirs

 (2) Any person who has been convicted of an have been preterited or omitted (Art. 854)
attempt against the life of the testator, his or her  The institution of heir shall be void. This
spouse, descendants, or ascendants; would therefore result to intestate succession as
 (3) Any person who has accused the testator if a will has never been made
of a crime for which the law prescribes  Example: T has three sons A, B, and C. T
imprisonment for six years or more, if the made a will instituting A, B, and a friend F. C
accusation has been found groundless; was omitted. T died leaving P90,000
 (4) Any heir of full age who, having  Since the institution is annulled, it is as
knowledge of the violent death of the testator, if there was no institution, hence, intestate
should fail to report it to an officer of the law succession takes place. A, B, and C will each
within a month, unless the authorities have get P30,000. F, the friend, gets nothing.
already taken action; this prohibition shall not  However, the devises and legacies shall be
apply to cases wherein, according to law, there is valid insofar as they are not inofficious which
no obligation to make an accusation; means they shall be valid but reduced if the
 (5) Any person convicted of adultery or legitime is impaired
concubinage with the spouse of the testator;  Example 1: T has two sons, A and B. In T’s
 (6) Any person who by fraud, violence, will, he gave F, a friend, P10,000 as a legacy out
intimidation, or undue influence should cause of an estate of P100,000. A and B were
the testator to make a will or to change one omitted.
already made;  Since the estate is worth P100,000, the
 (7) Any person who by the same means free portion is P50,000. Therefore, the
prevents another from making a will, or from legacy of P10,000 is not inofficious, and
revoking one already made, or who supplants, should remain effective. The remaining
conceals, or alters the latter’s will; P90,000 will be divided equally between
 (8) Any person who falsifies or forges a the two children.
supposed will of the decedent.  Example 2: T has two sons, A and B. In T’s
 When a credit that had been given as a legacy is will, he gave F, a friend, P60,000 as a legacy out
judicially demanded by the testator (Art. 936) of an estate of P100,000. A and B were
 The legacy of credit against a third person or omitted.
remission of a debt of the legatee shall be  The estate being P100,000, the free
revoked if the testator, after having made it, portion is only P50,000, hence, the legacy
should bring an action against the debtor for the of P60,000 should be reduced by P10,000.
payment of his debt, even if such payment Leaving F with P50,000 and the other
should not have been effected at the time of his P50,000 distributed to A and B as
death compulsory heirs.
 Example 1 (Legacy of credit against third  NOTE: Revocation by implication of law exists

person): T has a receivable from D for P1 million. because we presume a change of mind on the part of

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& Slides, Personal case digests, EH405 2020 Case Digests, EH 402 2019 Case Digests

the testator. If the testator never intended to change writing itself be left untouched as long as there was
his mind the will shall still be revoked by implication an intention to revoke
of law. However, as a remedy, to prevent this, the  However, it was held that even if there was an

testator can manifest his unchanged mind by intention to revoke but the physical act of burning
executing a new will or codicil. was not completed (subjective phase) as when
2. By Subsequent Will, Codicil, or Other Writing another person removed the will from the fire,
 Revocation in this manner may be express or there was no revocation although there was intent
implied to revoke since there never was an overt act of
 Implied Revocation burning
 Total Revocation: When there exists a  However, the person who prevented the
complete inconsistency between the two wills. revocation if he be an heir, legatee, or devisee,
The previous will is impliedly revoked and the will not inherit by reason of unworthiness
subsequent ones prevail (Art. 830)  Tearing
 Partial Revocation: When there exists  Tearing includes cutting

inconsistency only in certain provisions (Art.  Even a slight tear is sufficient

831)  However, the greater the degree of tearing the

 In this case when, when there is no express greater is the evidence of animo revocandi.
revocation, then the subsequent wills will only  Note: The mere act of “crumpling” or the removal

annul or revoke such dispositions in the prior of the “fastener” binding the pages of a will, does
wills that are inconsistent with or contrary to NOT constitute a revocation, even though there be
those contained in the later wills animo revocandi. (However, in Roxas vs. Roxas case,
 The law does not favor revocation by the court allowed crumpling as long as there is
implication, and therefore efforts to reconcile animo revocandi)
must be made.  Canceling
 Express Revocation  Drawing of a line across a text, but the words

 When the new will or codicil contains a remain legible

revocatory clause revoking the previous one  Cancellation or obliteration of non-vital part

which must be unmistakably manifested leaves the other parts in force.

 A will may be revoked by a subsequent will or  Obliteration
codicil, either notarial or holographic.  Renders the word illegible

 The subsequent will or codicil (revoking will) must  Cancellation or obliteration of non-vital part

be valid in itself and must comply with all the leaves the other parts in force.
requisites of a valid will otherwise there is no
revocation EFFECT OF REVOCATION
3. By Virtue of an Overt Act or Physical Destruction  EFFECT ON REVOCATION IF NEW WILL IS
 Requisites for Revocation by an Overt Act INOPERATIVE (Art. 832)
 There must be an overt act specified by the law.  The subsequent will (revoking will) shall
 There must be a completion at least of the nonetheless take effect, even if such will shall
subjective phase of the overt act. become inoperative by reason of either
 There must be animus revocandi or intent to  By the incapacity of the heirs, devisees, or
revoke. legatees
 The testator at the time of revoking must have  By their renunciation
capacity to make a will.  Thus, the previous will shall still be revoked

 The revocation must be done by the testator despite the revoking will being ineffective
himself, or by some other person in his presence  Note: An inoperative or ineffective will is
and by his express direction. different from an invalid will
 Note: Ratification of an unauthorized  An invalid revoking will cannot revoke. But a
destruction is however permissible provided valid though ineffective will can revoke.
sufficient proof of this is presented  Example: T made a will making X his heir. Later, T

 Burning expressly revoked his first will by executing a

 It is sufficient even if a small part of the second will containing a revocatory clause. T made
instrument itself be burned even though the entire

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Y his heir. The second will was validly made, but on that the second will had been validly executed).
T’s death, Y refused to accept the inheritance. (De Molo vs. Molo)
 The previous will is still revoked. T will be  This is under the doctrine of dependent
considered to have died intestate. relative revocation
 REVOCATION BASED ON FALSE OR ILLEGAL CAUSE  The revocation by destruction or overt act
(Art 833) was good only if this condition is fulfilled,
 If the revocation by mistake or when it is based namely, that the revoking will was valid. The
on a false or illegal cause is null and void. The condition was not fulfilled; therefore, the
revocation does not there take effect and the revocation by overt act did not really
previous will prevails. materialize.
 Doctrine of Dependent Relative Revocation:  Note: This is what was discussed by Atty
Under this doctrine, the established rule is that if a Gravador. He did not mention the principle in
testator revokes a will with a present intention of Diaz vs. De Leon
making a new one immediately and as a substitute,  EFFECT OF REVOCATION ON THE RECOGNITION
and the new will is not made, or, if made, fails of OF AN ILLEGITIMATE CHILD (Art 834)
effect for any reason, it will be presumed that the  Voluntary recognition of an illegitimate child may

testator preferred the old will to intestacy, and the be done

old one will be admitted to probate in the absence  In a record of birth
of evidence overcoming the presumption, provided  In a will
its contents can be ascertained.  In a statement before a court of record
 Example 1: T made a will making A his heir. T  In any authentic writing
then learned that A was dead, so he made another  If recognition of an illegitimate child is made in a

will instituting B as heir. If A turns out to be still will, and such will where the recognition was made
alive, who inherits? was subsequently revoked, it shall not affect the
 A inherits, because the revocation was recognition and it sill remains valid
based on a false cause  Reason: While a will is essentially revocable,

 Example 2: T made will no. 1. Subsequently he recognition is irrevocable

wanted to revoke the same, so he executed will no.  Recognition is not a testamentary disposition
2 expressly revoking will no. 1. In the belief that he  Recognition does not also wait for the
had already accomplished what he wanted, he tore testator’s death to be effective
into piece will no. 1. On his death. It was discovered  A revocation that takes place only if the
that will no. 2 (revoking will no. 1) has not been condition is fulfilled
validly executed. (TN: This case then involves will
no. 1 who had been revoked by a subsequent will
and by physical destruction. Will no. 2 was however CASES
invalid. And we all know that a revoking will must
be valid otherwise there is no revocation; Question: Mode of Revocation: Revocation by Physical
Is the testator considered to have died intestate Destruction
considering that will no. 1 was already destroyed
and will no. 2 was invalid?) MALOTO vs. CA
 If was held that while it is true that G.R. No. 76464, February 29, 1988
revocation was not produced by the execution of
an invalid will, revocation was made thru an FACTS: Adriana Maloto died leaving her nieces and
overt act — the act of tearing or destruction — nephews as heirs, including herein petitioner (Aldina
with animo revocandi. Hence, the court Maloto). Believing that the deceased did not leave
concluded that will No. (1) had indeed been behind a last will and testament, the four heirs
revoked. (Diaz vs. De Leon) commenced an intestate proceeding for the settlement
 However, in a subsequent case, it was ruled of their aunt’s estate.
that there was no revocation either by However, while the case was still in progress, the
subsequent will (for same was invalid) or an parties (Aldina, Constancio, Panfilo, and Felino)
overt act (since the act of destruction or tearing executed an agreement of extrajudicial settlement of
the first will was prompted by the false belief Adriana’s estate.

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Three years later, Atty. Sulpicio Palma, a former kitchen) was located in which the papers proffered as a
associate of Adriana’s counsel discovered a document will were burned.
entitled “Katapusal Nga Pagbubulatn-an (Testamento.”
and purporting to be the last will and testament of KALAW vs. RELOVA
Adriana. Atty. Palma claimed to have found the “original” G.R. No. L-40207, September 28, 1984
testament
Incidentally. While Panfilo and Felino are still FACTS: Natividad named her sister Rosa as her sole heir
named as heirs in the said will, Aldina and Constancio in her holographic will. Later on Natividad altered her
are bequeathed much bigger and more vulnerable will and named her brother Gregorio as sole heir
shares in the estate of Adriana than what they received instead.
by the virtue of the agreement of extrajudicial It was alleged that the holographic will contained
settlement they had earlier signed. The will likewise alterations, corrections, and insertions without the
gives devises and legacies to other parties. proper authentication by the full signature of the
The heirs, devisees and legatees filed a motion for testatrix as required by Article 814 of the Civil Code.
reconsideration and annulment of the proceedings in
the intestate proceeding of Adriana and for the ISSUE: WON the original unaltered text after
allowance of the will. subsequent alterations and insertions were voided by
During the investigation, the appellate court found the Trial Court for lack of authentication by the full
that the will was allegedly burned by the househelper of signature of the testatrix, should be probated or not,
the deceased upon instructions of the testatrix, and with her as sole heir. (To put simply: WON the first
found that the will had been revoked unaltered will should be given effect) NO

ISSUE: WON Adriana Maloto validly revoked the will? RULING: The will is invalid in its entirety
NO Ordinarily, when a number of erasures, corrections,
and interlineations made by the testator in a
RULING: The physical act of destruction of a will, like holographic Will have not been noted under his
burning in this case, does not per se constitute an signature, the Will is not thereby invalidated as a whole,
effective revocation, unless the destruction is coupled but at most only as respects the particular words erased,
with animus revocandi on the part of the testator. It is corrected or interlined.
not imperative that the physical destruction be done by However, when as in this case, the holographic
the testator himself. It may be performed by another Will in dispute had only one substantial provision, which
person but under the express direction and in the was altered by substituting the original heir with
presence of the testator. Of course, it goes without another, but which alteration did not carry the requisite
saying that the document destroyed must be the will of full authentication by the full signature of the
itself. testator, the effect must be that the entire Will is
“Animus revocandi” is only one of the necessary voided or revoked for the simple reason that nothing
elements for the effective revocation of a last will and remains in the Will after that which could remain valid.
testament. The intention to revoke must be To state that the Will as first written should be
accompanied by the overt physical act of burning, given efficacy is to disregard the seeming change of
tearing, obliterating, or cancelling the will carried out by mind of the testatrix. But that change of mind can
the testator or by another person in his presence and neither be given effect because she failed to
under his express direction. authenticate it in the manner required by law by affixing
There is paucity of evidence to show compliance her full signature.
with these requirements. For one, the document or
papers burned by Adriana’s maid, Guadalupe, was not TLDR: Generally, when there are alterations that are not
satisfactorily established to be a will at all, much less authenticated, the whole will will not be rendered
the will of Adriana Maloto. For another, the burning was invalid but only those unauthenticated alterations. An
not proven to have been done under the express exception would be when there is only one substantial
direction of Adriana. And then, the burning was not in provision in the will, which was altered. The court said,
her presence. Both witnesses, Guadalupe and Eladio, the entire will is voided since nothing remains to be
were one in stating that they were the only ones valid
present at the place where the stove (presumably in the

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Mode of Revocation: Implied Revocation Respondents oppositions, alleging (a) that the said
will is a copy of the second will and testament executed
LIPANA vs. LIPANA by the said Miguel Mamuyac; (b) that the same had
G.R. No. 76464, June 28, 1940 been cancelled and revoked during the lifetime of
Miguel Mamuyac and (c) that the said will was not the
FACTS: This is a petition for certiorari. Petitioner last will.
Eliodora Lipana (Eliodora) filed in the CFI an application Court denied the probation upon the ground that
for the probate of a will executed by Manuela Lipana the same had been cancelled and revoked in the year
(Manuela). She attached a carbon copy of the will to the 1920.
application for probate. “ Exhibit A is a mere carbon copy of its original
It was opposed by Natividad Lipana--claiming that which remained in the possession of the deceased
the carbon copy was unneccessary evidence because it testator Miguel Mamuyac, who revoked it before his
could clearly be seen therefrom that the will was not death as per testimony of witnesses Jose Fenoy, who
executed in accordance with the requirements of the typed the will of the testator on April 16, 1919, and
law. Carlos Bejar, who saw on December 30, 1920, the
CFI dismissed Eliodora's application for probate on original of Exhibit A ( will of 1919) actually cancelled by
the ground that the carbon copy was not signed by the testator Miguel Mamuyac, who assured Carlos Bejar
Manuela nor by the instrumental witnesses. that inasmuch as he had sold him a house and the l and
where the house was built, he had to cancel it ( the will
ISSUE: WON the probate petition should be dismissed of 1919), executing thereby a new testament.
due to the carbon copy. NO
ISSUE: WON the will of Miguel Mamuyac has been
RULING: It is apparent from the application that what is effectively cancelled YES
sought to be admitted to probate is the original of the
will. Such copy was attached to the application merely RULING: The law does not require any evidence of the
to corroborate the allegation as to the existence of its revocation or cancellation of a will to be preserved. It
original and not to establish a full compliance with the therefore becomes difficult at times to prove the
requirements of the law as to the execution of the will. revocation or cancellation of wills. The fact that such
Such requirements are alleged in the application to cancellation or revocation has taken place must either
have been complied with and may be proved at the remain unproved or be inferred from evidence showing
hearing. that after due search the original will cannot be found.
Under section 623 of Act No. 190, if a will is shown Where a will which cannot be found is shown to
to have been torn by some other person without the have been in the possession of the testator, when last
express direction of the testator, it may be admitted to seen, the presumption is, in the absence of other
probate, if its contents, due execution and its competent evidence, that the same was cancelled or
unauthorized destruction are established by satisfactory destroyed. The same presumption arises where it is
evidence. shown that the testator had ready access to the will and
The applicant, therefore, was entitled to hearing to it cannot be found after his death. It will not be
prove the due execution of the original will and its loss presumed that such will has been destroyed by any
or destruction, and the respondent court had no other person without the knowledge or authority of the
statutory authority to dismiss the application without testator. The force of the presumption of cancellation
such hearing. or revocation by the testator, while varying greatly,
being weak or strong according to the circumstances, is
GAGO vs. MAMUYAC never conclusive, but may be overcome by proof that
G.R. No. 23317, January 29, 1927
the will was not destroyed by the testator with intent to
revoke it.
FACTS: Petition for Probate was filed by Gago for last In view of the fact that the original will of 1919
will and testament of Miguel Mamuyac could not be found after the death of the testator
Court denied probation upon the ground that the Miguel Mamuyac and in view of the positive proof that
deceased had on the 16th day of April, 1919, executed a the same had been cancelled, we are forced to the
new will and testament. conclusion that the conclusions of the lower court are in
The present action was commenced for the accordance with the weight of the evidence.
probate of said new will.

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In a proceeding to probate a will the burden of This doctrine is known as that of dependent
proof is upon the proponent clearly to establish not relative revocation, and is usually applied where the
only its execution but its existence. Having proved its testator cancels or destroys a will or executes an
execution by the proponents, the burden is on the instrument intended to revoke a will with a present
contestant to show that it has been revoked. In a great intention to make a new testamentary disposition as a
majority of instances in which wills are destroyed for substitute for the old, and the new disposition is not
the purpose of revoking them there is no witness to the made or, if made, fails of effect for same reason. The
act of cancellation or destruction and all evidence of its doctrine is limited to the existence of some other
cancellation perishes with the testator. Copies of wills document, however, and has been applied where a will
should be admitted by the courts with great caution. was destroyed as a consequence of a mistake of law.
When it is proven, however, by proper testimony that a The rule is established that where the act of
will was executed in duplicate and each copy was destruction is connected with the making of another
executed with all the formalities and requirements of will so as fairly to raise the inference that the testator
the law, the duplicate may be admitted in evidence meant the revocation of the old to depend upon the
when it is made to appear that the original has been efficacy of a new disposition intended to be substituted,
lost and was not cancelled or destroyed by the testator. the revocation will be conditional and dependent upon
the efficacy of the new disposition; and if, for any
Doctrine of Dependent Relative Revocation reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the
VDA. DE MOLO vs. MOLO original will remains in full force.
G.R. No. L-2538, September 21, 1951 The failure of a new testamentary disposition upon
whose validity the revocation depends, is equivalent to
FACTS: Mariano Molo y Legaspi was survived, however, the non-fulfillment of the suspensive conditions, and
by his wife, the herein petitioner Juana Juan Vda. de hence prevents the revocation of the original will. But a
Molo, and by his nieces and nephew, the mere intent to make at some time a will in the place of
oppositors-appellants. that destroyed will not render the destruction
He left two wills, one executed on August 17, 1918, conditional. It must appear that the revocation is
and another executed on June 20, 1939. The latter will dependent upon the valid execution of a new will.
contains a clause which expressly revokes the will Even in the supposition that the destruction of the
executed in 1918. original will by the testator could be presumed from the
His surviving spouse sought probate for the 1939 failure of the petitioner to produce it in court, such
will. Court rendered decision denying the probate of destruction cannot have the effect of defeating the
said will on the ground that the petitioner failed to prior will where it is founded on the mistaken belief that
prove that the same was executed in accordance with the later will has been validly executed and would be
law. given due effect. The earlier will can still be admitted to
Due to said denial, Vda de Molo sought probate for probate under the principle of "dependent relative
the 1918 will. Again, the same oppositors filed an revocation". The theory on which this principle is
opposition to the petition, based on three grounds: (1) predicated is that the testator did not intend to die
that petitioner is now estopped from seeking the intestate. And this intention is clearly manifest where
probate of the will of 1918; (2) that said will has not he executed two wills on two different occasions and
been executed in the manner required by law and(3) instituted his wife as his universal heir.
that the will has been subsequently revoked.
CANIZA vs. CA
ISSUE: What is the effect of the alleged destruction of G.R. No. 110427, February 24, 1997
the first will considering that the 2nd will which
contained a revocatory clause was denied probate Note: Not assigned in the syllabus but discussed during
class
RULING: The prior 1918 will cannot be defeated
because it is founded on the mistaken belief that the A will is essentially ambulatory; at any time prior
will of 1939 has been validly executed and would be to the testator's death, it may be changed or revoked;
given effect. and until admitted to probate, it has no effect whatever
and no right can be claimed thereunder, the law being
quite explicit: "No will shall pass either real or personal

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property unless it is proved and allowed in accordance previous will which is void as to its form or executes
with the Rules of Court" (ART. 838, CIVIL CODE). An a codicil to his will
owner's intention to confer title on the future to  HOW MADE

persons possessing property by his tolerance, is not  Re-execution of the original will

inconsistent with the former's taking back possession in  The original provisions are copied
the meantime for any reason deemed sufficient. And  Execution of a codicil

that in this case there was sufficient cause for the  Also known as implied republication
owner's resumption of possession is apparent: she  REQUISITES AND LIMITATIONS OF REPUBLICATION

needed to generate income from the house on account  Void Will as to its Form

of the physical infirmities afflicting her, arising from her  To republish a will void as to its FORM, all the
extreme age. dispositions must be reproduced or copied in the
new or subsequent will.
SAMSON vs. NAVAL  Example: T made a notarial will in 2002 with
G.R. No. 11823, February 11, 1918 only 2 attesting witnesses. This will is void as to
its form and is therefore useless.
Note: Not assigned in the syllabus but discussed during  If T desires to give life to his will. He can
class republish it, say in 2004, by copying all the
provisions in the old will, but this time, he must
In order that a former will may be revoked by use three attesting witnesses.
operation of law by a subsequent will, it is necessary  The effect is as if he made the will not in
that the latter should be-valid and executed with the 2002 but in 2004. In other words, the will is a
formalities required for the making of wills. re-established act
A subsequent will containing a clause revoking a  Application: If in 2002, he gave “all his
previous will, should possess all the requisites of a will, automobiles” to X, and at that time, T had 5
should be signed and attested in the manner provided automobiles, but in 2004, he republished the will,
by law, and should be allowed, in order that the and by that time he already had eight
revocatory clause thereof may produce the effect of automobiles
revoking the previous will.  X the gets all the 8 automobiles
A subsequent will, containing a clause revoking a  Valid Will as to its Form But Already Revoked
previous will, having been disallowed, for the reason  To republish a will valid as to its form but
that it was not executed in conformity with the already revoked, the execution of a codicil which
provisions of section 618 of the Code of Civil Procedure makes reference to the revoked will is sufficient.
as to the making of wills, cannot produce the effect of  Thus, mere reference is enough and there is
annulling the previous will, inasmuch as said revocatory no need of reproducing the previous will.
clause is void However, the testator may also re-execute
 Example: T made a will in Feb. 1921, which
Republication & he revoked later in August 1921. In June 1925,
revival of wills he made a codicil to the will of Feb. 1921 (not
August), describing the will, giving its date, with
a formal statement that he was declaring it to be
ARTICLE 835. The testator cannot republish, without reproducing in a his last will and testament. The codicil merely
subsequent will, the dispositions contained in a previous one which is
referred to the will, without reproducing same.
void as to its form.
 The republication is sufficient. Therefore,
ARTICLE 836. The execution of a codicil referring to a previous will has the will of Feb. 1921 should be given effect.
the effect of republishing the will as modified by the codicil.
There was no necessity here of reproducing.
 EFFECTS OF REPUBLICATION BY VIRTUE OF A
REPUBLICATION OF WILLS CODICIL
 DEFINITION  The codicil revives the previous will.
 It is the process of re-establishing a will, which  The old will is republished as of the date of the
has become useless because it was void, or had codicil — makes it speak, as it were, from the new
been revoked and later date.
 An act of the testator whereby he reproduces in

a subsequent will the dispositions contained in a

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 A will republished by a codicil is governed by a  This is the principle of INSTANTER — thus, we

statute enacted subsequent to the execution of the say, the clause revoked the first will that
will, but which was operative when the codicil was contains said clause.)
executed  In other words, the theory is that death does
ARTICLE 837. If after making a will, the testator makes a second will
not have to come before giving effect to a
expressly revoking the first, the revocation of the second will does not revocatory clause. Stated otherwise, while a will
revive the first will, which can be revived only by another will or is a disposition mortis causa, a revocation takes
codicil. effect, inter vivos.
 Example 2: T made 3 wills. Will No. 2 is

REVIVAL OF WILLS completely inconsistent with, and therefore,

 GIVE LIFE TO A VOID OR REVOKED WILL impliedly repeals Will No. 1. Later Will No. 3
A void will or revoked will is a nullity and devoid revokes Will No. 2.
of any effect. The only way to give effect to it are:  Will 1 is revived. This is a clear inference from
 Republication (which may either be Art. 837.
re-execution or reference by a codicil)  Since the Article uses the word “expressly,” it
 Revival follows that in case of an “implied” revocation by
 Note: Aside from republication and revival, there the second will, an automatic revival of the first
is no other way of restoring effectiveness. occurs.
 REVIVAL  The reason is the fact that an “implied
 The restoration or reestablishment of revoked revocation” is ambulatory, the inconsistency
will or revoked provisions thereof, to effectiveness, being truly and actually apparent only mortis
by virtue of legal provisions causa, when the properties are distributed.
 REPUBLICATION vs. REVIVAL  Example 3: A made Will No. 1, then Will No. 2

 Republication is an act of the testator expressly revoking the first. Then he destroyed Will
 Revival is one that takes place by operation of No. 2, and orally expressed his desire that his first
law will be followed.
 EFFECT OF REVOKING THE SUBSEQUENT WILL  The first will is not revived.
THAT REVOKED THE PRIOR WILL  The oral expression of the desire to revive
 Subsequent will expressly revokes the prior will cannot be given effect. He should have made a
 The revocation of the subsequent will does new will or codicil.
not revive the first will
Example: Will No. 2 expressly revoked Will


No. 1. If you also revoke Will No. 2, it will not

Allowance &
revive Will No. 1 DISALLOWANCE
 It can only be revived by another will or of wills
codicil
 Subsequent will impliedly revokes the prior will

 The revocation of the subsequent will revives ARTICLE 838. No will shall pass either real or personal property unless
the first will it is proved and allowed in accordance with the Rules of Court.
 Example: Will No. 2 impliedly revoked Will No. The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the
1. If you also revoke Will No. 2, it will revive Will pertinent provisions of the Rules of Court for the allowance of wills
No. 1 after the testator’s death shall govern.
 PROBLEMS ON REVIVAL The Supreme Court shall formulate such additional Rules of
 Example 1: I made 3 wills. Will No. 2 expressly
Court as may be necessary for the allowance of wills on petition of the
testator.
revoked Will No. 1. Will No. 3 revoked Will No. 2. Subject to the right of appeal, the allowance of the will, either
 Will No. 1 is not revived, by express provision during the lifetime of the testator or after his death, shall be
of Art. 837. The rule is based on the principle conclusive as to its due execution.
that the revocatory clause of the second will Rules of Court, Rule 75, Section 1. Allowances necessary; Conclusive
took effect immediately or at the instant the as to execution. － No will shall pass either real or personal estate
revoking will was made unless it is proved and allowed in the proper court. Subject to the
right of appeal, such allowance of the will shall be conclusive as to its
due execution.

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ALLOWANCE OF WILLS  Absent legatees, and devisees, or such of them

 PROBATE as may have no knowledge of the will could be
 Probate is the act of proving before a competent cheated of their inheritance thru the collusion of
court the due execution of a will by a person some of the heirs who might agree to the partition
possessed of testamentary capacity, as well as of the estate among themselves to the exclusion of
approval thereof by said court. others.
 May also be known as “probation”, “legalization”,  MODES OF PROBATE
“protocolization”, or “authentication”  Ante-Mortem Probate

 LIMITATION OF PROBATE  Probate by the testator during the testator’s

 Probate of a will is different from ascertaining lifetime
the validity of the testamentary disposition.  He then follows the procedure for the post
 Probate is limited to the determination of mortem of ordinary probate, except insofar as
the due execution of the document and the the Supreme Court may impose additional rules
testamentary capacity of the testator for ante mortem probates (no additional rules
 The validity of testamentary disposition deals formulated yet)
with descent and distribution  Note: The procedure of the ante-morte
 The authentication of a will decides no other probate and post-mortem probate is the same
question than such as touch the capacity of the since there is no additional rules for
testator and the compliance with those requisites ante-mortem probate
or solemnities which the law prescribes for the  Post-Mortem Probate

validity of wills. It does not determine nor even by  Probate after the testator’s death by executor,
implication prejudge the validity or efficiency of devisee, or legetee named in a will or any other
the provisions, these may be impugned as being person interested in the estate
vicious or null, notwithstanding its authentication.  EFFECT OF ALLOWANCE OF WILLS
 Opposition to the intrinsic validity or legality of  As long as there has been final judgment by a

the provisions of the Will cannot be entertained in court of competent jurisdiction, and the period for
probate proceeding because its only purpose is filing a petition for relief has expired without such
merely to determine if the will has been executed petition having been submitted, the probate proper
in accordance with the requirements of the law (or allowance) of the will is binding upon the whole
 NECESSITY OF PROBATE world (being a proceeding in rem) insofar as
 It is essential because under the law “no will shall testamentary capacity (at least 18; sound mind) and
pass either real or personal property unless it is due execution (including all formalities and absence
proved and allowed in accordance with the Rules of of any ground for disallowance) are concerned.
Court.”  After the finality of the allowance of a will, the

 Any provision in the will to the effect that the issue as to the voluntariness of its execution cannot
will shall not be present before the court is void be raised anymore
 No distribution of the property in accordance  The probate renders the due execution or formal

with the will shall take effect without probate. If validity of the will conclusive and these cannot
not probated, then intestate succession shall again be questioned in a subsequent proceeding,
result. not even in a criminal action for forgery of the will
 Probate is a proceeding in rem (requiring  Effect Upon Joint Will of Spouses

publication, among other things) and, therefore,  An error of law committed in admitting a joint
cannot be dispensed with or substituted by any will to probate does not affect the jurisdiction of
other proceeding, judicial or extrajudicial without the probate court nor the conclusive effect of its
offending public policy final decision.
 No judicial approval can be given to an  However, a final probate decree of a joint will
extrajudicial partition based on a will unless the of husband and wife affects only the share of the
will is first probated. Neither may an unprobated deceased spouse and cannot include the
will be presented as evidence of an act of disposition of the share of the surviving spouse.
partition among the co-heirs.
 The right of a person to dispose of his property

by virtue of a will may be rendered nugatory

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 PARTS OF PROBATE (PROCEDURE IN PROBATE third persons are not prejudiced. (Subject to
PROCEEDING) res judicata)
 Probate Proper (Extrinsic Validity)  PROCEDURE IN PROBATE PROCEEDING: The Court

 Pertains to the determination of the due shall

execution of the will and testamentary capacity  Orders the probate proper of the will

of the testator  Grants letters testamentary or letters with a will

 An order allowing probate of the will is not annexed

interlocutory and is, therefore, immediately  Hears and approves claims against the estate

appealable. (Record on Appeal)  Orders the payment of the lawful debts

 Inquiry into Intrinsic Validity and the  Authorizes the sale, mortgage, or any other

Distribution itself of the property encumbrance of real estate

 MATTERS NOT INQUIRED INTO IN PROBATE  and directs the delivery of the estate or
PROCEEDINGS properties to those who are entitled thereto.
 General Rule: Probate is only limited to the

determination of the due execution of the

document and the testamentary capacity of the CASES
testator. Thus, only the extrinsic validity is inquired
into and decided on by the court Allowance of Wills: Necessity to Probate
 Exceptions: (When intrinsic validity may be

inquired into) HEIRS OF LASAM vs. UMENGAN

 The invalidity of the intrinsic requisites is G.R. No. 168156, December 6, 2006
clear on its face
 The determination of the intrinsic validity is FACTS: The heirs of Rosendo Lasam, son of the
so intertwined with the extrinsic validity deceased Isabel Cuntapay by her second husband, filed
 As a general rule, questions as to title to with the MTCC a complaint for unlawful detainer
property cannot be passed upon in testate or against Vicenta Umengan, granddaughter deceased by
intestate proceedings, except where one of the her first husband.
parties prays merely for the inclusion or They based their claim of right to possession on
exclusion from the inventory of the property, the theory that their father was the sole owner of the
in which case the probate court may pass subject lot by virtue of the newly discovered last will
provisionally upon the question without and testament of Isabel Cuntapay bequeathing the
prejudice to its final determination in a same to him, but such will was not probated. Vicenta is
separate action. allegedly holding the subject lot by mere tolerance of
 The probate court can decide only their father and, upon their formal demand on her to
provisionally questions of title for the purpose vacate the same, Vicenta's right to possess it has
of inclusion into, or exclusion from, the expired.
inventory, without prejudice to a final On the other hand, Vicenta countered that when
determination of the question in a separate Isabel Cuntapay passed away, the subject lot was
action. (Not subject to res judicata) inherited by her six children by her first and second
 The parties stipulate that the issues of marriages through intestate succession. Each of the six
ownership be settled in the probate court children allegedly had a pro indiviso share of 1/6 of the
 However, when the parties interested are subject lot. She hinges her claim of possession on the
all heirs of the deceased, it is optional to them legal conveyances made to her by the children of Isabel
to submit to the probate court any question as Cuntapay by her first husband, namely, Maria, Rufo,
to title to property, and when so submitted, Sado and Abdon. These conveyances were made
said probate court may definitely pass through the sale and donation by the said siblings of
judgment thereon; and that with the consent their respective portions in the subject lot to
of the parties, matters affecting property respondent as evidenced by the pertinent deeds.
under judicial administration may be taken
cognizance of by the court in the course of the ISSUE: WON the newly discovered last will and
intestate proceedings, provided interests of testament of Isabel Cuntapay could be properly relied
upon to establish Heirs of Rosenda Lasam’s right to

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possess the subject lot without having been probated ISSUE: WON the document executed by Segundo can be
NO considered a holographic will thus, subject to probate
YES
RULING: Without having been probated, the said last
will and testament could not be the source of any right. RULING: Segundo's document, although it may initially
In Cañiza v. Court of Appeals, the Court ruled come across as a mere disinheritance instrument,
that: "[a] will is essentially ambulatory; at any time prior conforms to the formalities of a holographic will
to the testator's death, it may be changed or revoked; prescribed by law. It is written, dated and signed by the
and until admitted to probate, it has no effect whatever hand of Segundo himself.
and no right can be claimed thereunder. The law, Article An intent to dispose mortis causa can be clearly
838, being quite explicit: 'No will shall pass either real or deduced from the terms of the instrument, and while it
personal property unless it is proved and allowed in does not make an affirmative disposition of the latter's
accordance with the Rules of Court.'" property, the disinheritance of Alfredo, nonetheless, is
Dr. Tolentino, an eminent authority on civil law, an act of disposition in itself. In other words, the
also explained that "[b]efore any will can have force or disinheritance results in the disposition of the property
validity it must be probated. To probate a will means to of the testator Segundo in favor of those who would
prove before some officer or tribunal, vested by law succeed in the absence of Alfredo.
with authority for that purpose, that the instrument Considering that the questioned document is
offered to be proved is the last will and testament of Segundo's holographic will, and that the law favors
the deceased person whose testamentary act it is testacy over intestacy, the probate of the will cannot be
alleged to be, and that it has been executed, attested dispensed with.
and published as required by law, and that the testator Article 838 of the Civil Code provides that no will
was of sound and disposing mind. It is a proceeding to shall pass either real or personal property unless it is
establish the validity of the will." Moreover, the proved and allowed in accordance with the Rules of
presentation of the will for probate is mandatory and is Court. Thus, unless the will is probated, the right of a
a matter of public policy. person to dispose of his property may be rendered
Isabel Cuntapay's last will and testament, which nugatory.
has not been probated, has no effect whatever and
petitioners cannot claim any right thereunder. UNION BANK OF THE PH vs. SANTIBANEZ
Respondent has shown a better right of possession over G.R. No. 149926, February 23, 2005
the subject lot as evidenced by the deeds of
conveyances executed in her favor by the children of FACTS: FCCC and Efraim entered into 2 loan agreements.
Isabel Cuntapay by her first marriage. Efraim and Edmund (his son), executed a promissory
note in favor of the FCCC.
SEANGIO vs. REYES Efraim died, leaving a holographic will.
G.R. Nos. 140371-71, November 27, 2006 Subsequently, testate proceedings commenced.
During the pendency of the testate proceedings,
FACTS: Private respondents filed a petition for the the surviving heirs, Edmund and his sister Florence,
settlement of the intestate estate of the late Segundo executed a Joint Agreement, wherein they agreed to
Seangio. divide between themselves and take possession of the 3
Petitioners opposed the petition contending that Ford Tractor. Each of them was to assume the
Segundo left a holographic will disinheriting one of the indebtedness of their late father to FCCC, corresponding
private respondent, which is his eldest son. to the tractor respectively taken by them.
Private respondents moved for the dismissal of Consequently, a Deed of Assignment with
the probate proceedings primarily on the ground that Assumption of Liabilities was executed by and between
the document purporting to be the holographic will of FCCC and UBP (petitioner) wherein the FCCC assigned
Segundo does not contain any disposition of the estate all its assets and liabilities to UBP.
of the deceased. According to them, the will only shows Demand letters were sent by UBP to Edmund,
an alleged act of disinheritance by the decedent of his but the latter refused to pay. UBP filed a Complaint for a
eldest son, Alfredo, and that there was preterition. sum of money against Edmund and Florence.

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& Slides, Personal case digests, EH405 2020 Case Digests, EH 402 2019 Case Digests

ISSUE: WON the partition in the Joint Agreement of the testator and the compliance with those
executed by the heirs is valid NO requirements or solemnities which the law prescribes
for the validity of a will.
RULING: The deceased left a holographic will which
contained: “All other properties, real or personal, which Allowance of Wills: Effect of Allowance of Wills
I own and may be discovered later after my demise,
shall be distributed in the proportion indicated in the GALLANOSA vs. ARCANGEL
G.R. No. L-29300, June 21, 1978
immediately preceding paragraph in favor of Edmund
and Florence, my children.”
The above-quoted is an all-encompassing FACTS: Decedent Florentino Hitosis executed a will in
provision embracing all the properties left by the Bicolano and in May 1939 died survived only by his
decedent which might have escaped his mind at that brother Leon. On June 1939 a petition for the probate
time he was making his will, and other properties he of his will was filed in CFI Sorsogon.
may acquire thereafter. The decedent bequeathed his one half share to
Included therein are the three subject tractors. Gallanosa (Petitioner), the son of his second wife which
This being so, any partition involving the said tractors he treated as his foster child and his separate properties
among the heirs is not valid. The joint agreement to Fortajada, then a minor. Opposition to the probate of
executed by Edmund and Florence, partitioning the the will was registered by Leon, and nephews and
tractors among themselves, is invalid, specially so since nieces of the decendent.
at the time of its execution, there was already a pending CFI Sorsogon admitted the will to probate and
proceeding for the probate of their late father's appointed Gallanosa as executor. In 1941, a project
holographic will covering the said tractors. partition was submitted by the testamentary heirs and
It must be stressed that the probate proceeding was approved on March 1943. The legal heirs of the
had already acquired jurisdiction over all the properties testator did not appeal from the decree of probate and
of the deceased, including the three (3) tractors. To the order of partition and distribution.
dispose of them in any way without the probate court's In Feb. 1952, Leon and the heirs of the other
approval is tantamount to divesting it with jurisdiction siblings of the Testator filed an action for recovery of
which the Court cannot allow. Thus, in executing any properties against Gallanosa alleging that they had been
joint agreement which appears to be in the nature of an in continuous possession of parcels of land now being
extra-judicial partition, as in the case at bar, court claimed by Gallanosa.
approval is imperative, and the heirs cannot just divest The action was dismissed by the CFI on the
the court of its jurisdiction over that part of the estate. ground of res judicata since the now plaintiffs did not
Moreover, it is within the jurisdiction of the timely file an appeal on the probate, and the
probate court to determine the identity of the heirs of subsequent partition and distribution. Plaintiffs herein
the decedent. In the instant case, there is no showing did not appeal this order.
that the signatories in the joint agreement were the On Sept. 1967, same plaintiffs now filed an
only heirs of the decedent. When it was executed, the action for the annulment of the will of the Testator, and
probate of the will was still pending before the court the recovery for the same parcels of land and prayed for
and the latter had yet to determine who the heirs of the the appointment of a receiver.
decedent were. Thus, for Edmund and Florence to
adjudicate unto themselves the three (3) tractors was a ISSUE: WON private respondents have a cause of action
premature act, and prejudicial to the other possible for the annulment of the will of Florentino Hitosis and
heirs and creditors who may have a valid claim against for the recovery of the sixty-one parcels of land
the estate of the deceased. adjudicated under that will to the petitioners. NO
In testate succession, there can be no valid
partition among the heirs until after the will has been RULING: The 1939 decree of probate is conclusive as
probated. The law enjoins the probate of a will and the to the due execution or formal validity of the will.
public requires it, because unless a will is probated and That means that the testator was of sound and
notice thereof given to the whole world, the right of a disposing mind at the time when he executed the will
person to dispose of his property by will may be and was not acting under duress, menace, fraud, or
rendered nugatory. The authentication of a will decides undue influence; that the will was signed by him in the
no other question than such as touch upon the capacity presence of the required number of witnesses, and that
the will is genuine and is not a forgery. Accordingly,

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these facts cannot again be questioned in a subsequent A final judgement rendered on a petition for
proceeding, not even in a criminal action for the forgery the probate of a will is binding upon the whole world
of the will. and public policy and sound practice demand that at the
The 1967 suit is barred by Res Judicata and by risk of occasional errors, judgement of courts should
prescription. Our procedural law does not sanction an become final at some definite date fixed by law
action for the “annulment” of a will. In order that a ill Nevertheless, the probate in 1939 only affected
may take effect, it has to be probated, legalized or the share of Bernabe and could not include the
allowed in the proper testamentary proceeding. The disposition of the share of his wife which was still alive
testamentary proceeding is a special proceeding and is then, her properties were still not within the jurisdiction
distinct and different from an ordinary action. of the court.
After the finality of the allowance of a will, the Hence, joint will being prohibited by law, the
issue as to the voluntariness of its execution cannot be validity of the will with respect to her, must be on her
raised anymore. The probate of a will is conclusive as to death, be re-examined and adjudicated de novo —
its due execution and as to the testamentary capacity of since a joint will is considered a separate will of each
the testator. testator. The undivided interest of the wife should pass
upon her death to her intestate heirs and not to the
DE LA CERNA vs. POTOT testamentary heir.Thus, as to the disposition of the wife,
G.R. No. L-20234, December 23, 1964 the will cannot be given effect.

FACTS: Sps. Bernabe de la Cerna and Gervasia Rebaca, MANINANG vs. CA

executed a joint last will and testament on the two G.R. No. L-57848, June 19, 1982
parcels of land acquired during their marriage together
with all improvements thereon, to be given to Manuela FACTS: Clemencia Aseneta, who died single, left a
Rebaca, their niece, whom they have nurtured since holographic will where she bequeathed all her
childhood. properties to Dra. Soledad L. Maninang with whose
Bernabe died on Aug 30, 1939, and the aforesaid family she has lived continuously for around the last 30
will was submitted to probate by Gervasia and Manuela years.
before CFI Cebu which was admitted but only for the Petitioner Soledad Maninang filed a Petition for
part of Bernabe. probate of the Will of the decedent.
When Gervasia died, another petition for Herein respondent Bernardo Aseneta, who, as
probate of the same will was instituted by Manuela but the adopted son, claims to be the sole heir of decedent,
the same was denied , CFI ruling that the testament was instituted intestate proceedings.
null and void for being contrary to the probation of joint Bernardo then filed a Motion to Dismiss the
wills. Testate Case on the ground that the holographic will
CA reversed, on the ground that the decree of was null and void because he, as the only compulsory
probate in 1939 was issued by a court of probate heir, was preterited and, therefore, intestacy should
jurisdiction and conclusive on the due execution of the ensue.
testament. Soledad averred that it is still the rule that in a
case for probate of a Will, the Court’s area of inquiry is
ISSUE: WON the joint will may be probated YES limited to an examination of and resolution on the
extrinsic validity of the will; and that respondent
RULING: The final decree of probate in 1939 by CFI Bernardo was effectively disinherited by the decedent.
Cebu has conclusive effect as to his last will and
testament, despite the fact that even then the Civil ISSUE: WON the probate proceeding should be
Code already decreed the invalidity of joint wills, dismissed NO
whether in favor of the joint testators, reciprocally, or in RULING: Generally, the probate of a Will is mandatory
favor of a third party because unless the Will is probated and notice thereof
The error committed by the probate should have given to the whole world, the right of a person to
been corrected by appeal, but which did not affect the dispose of his property by Will may be rendered
jurisdiction of the probate court, nor the conclusive nugatory. Normally, the probate of a Will does not
effect of its final decision, however erroneous. look into its intrinsic validity.

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The Nuguid and Balanay cases that the nephew prematurely passing upon the intrinsic validity of the
relied on constitute an exception to the general rule. will
However, his reliance on them is misplaced.
In said case, the "meat of the controversy" was ISSUE: WON the Probate Order of December 5 1972
the intrinsic validity of the Will; in fact, the parties in resolved with finality the questions of ownership and
that case "shunted aside the question of whether or not intrinsic validity NO
the Will should be allowed probate." Not so in the case
before us now where the probate of the Will is insisted RULING: In a special proceeding for the probate of a will
on by petitioners and a resolution on the extrinsic the issue by and large is restricted to the extrinsic
validity of the Will demanded. validity of the will, i.e. whether the testator being of
Moreover, in this case, a crucial issue that calls sound mind freely executed the will in accordance with
for resolution is whether under the terms of the the formalities prescribed by law.
Aseneta's Will, the nephew had been preterited or As a rule the question of ownership is an
disinherited, and if the latter, whether it was a valid extraneous matter which the Probate Court cannot
disinheritance. Preterition and disinheritance are two resolve with finality. Thus for the purpose of
diverse concepts. determining whether a certain property should or
By granting the nephew’s MTD, the should not be included in the inventory of estate
determination of that controversial issue has not been properties, the Probate Court may pass upon the title
thoroughly considered. While the trial judge concluded thereto but such determination is provisional not
that the nephew has been preterited, the SC said that conclusive and is subject to the final decision in a
from the face of the Will, that conclusion is not separate action to resolve title.
indubitable. That the Probate Order did not resolve the
question of ownership of the properties listed in the
PASTOR vs. CA estate inventory was appropriate, considering that the
G.R. No. L-56340, June 24, 1983 issue of ownership was the very subject of controversy
in the reconveyance suit that was still pending in
FACTS: Alvaro Pastor, Sr. died in Cebu City survived by another court.
his two legitimate children Pastor, Jr. and Sofia Pastor It was, therefore, error for the assailed
de Midgely and an illegitimate child, Lewellyn Barlito implementing Orders to conclude that the Probate
Quemada. Order adjudged with finality the question of ownership.
Quemada filed a petition for the probate and
allowance of an alleged holographic will of Pastor, SR. JARDELEZA vs. SPS. JARDELEZA
with the CFI of Cebu. The will contained only one G.R. No. 167975, June 17, 2015
testamentary disposition: a legacy in favor of Quemada
Quemada after being appointed as special Note: Not assigned in the syllabus but discussed during
administrator of the entire estate of PASTOR, SR., class
whether or not covered or affected by the holographic
will, instituted against Pastor, JR. and his wife an action The jurisdiction of the RTC as a probate court
for reconveyance of alleged properties of the estate, relates only to matters having to do with the settlement
which included the properties subject of the legacy and of the estate and probate of a will of a deceased person,
which were in the names of the spouses Pastor, JR. and and does not extend to the determination of a question
his wife, who claimed to be the owners thereof in their of ownership that arises during the proceedings. This is
own rights, and not by inheritance. Petitioners filed true whether or not the property is alleged to belong to
their opposition to the petition for probate and the the estate, unless the claimants to the property are all
order appointing Quemada as special administrator. heirs of the deceased and they agree to submit the
The Probate Court issued an order allowing the question for determination by the probate or
will to probate. administration court and the interests of third parties
The oppositors sought reconsideration thereof are not prejudiced; or unless the purpose is to
on the same date primarily on the ground that the determine whether or not certain properties should be
Probate Court gravely abused its discretion when it included in the inventory, in which case the probate or
resolved the question of ownership of the royalties and administration court may decide prima facie the
ordered the payment of Quemada’s legacy after ownership of the property, but such determination is

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not final and is without prejudice to the right of the probate of a will, the court does not ordinarily look
interested parties to ventilate the question of into the intrinsic validity of its provisions
ownership in a proper action. Otherwise put, the
determination is provisional, not conclusive, and is DOROTHEO vs. CA
subject to the final decision in a separate action to G.R. No. 108581, December 8, 1999
resolve title by a court of competent jurisdiction.
FACTS: Private respondents were the legitimate
NEPOMUCENO vs. CA children of Alejandro and Aniceta. Aniceta died in 1969
G.R. No. L-62962, October 9, 1985 without her estate being settled. Alejandro died
thereafter.
FACTS: Martin Jugo died leaving a last Will and Lourdes, who claims to have taken care of
Testament Alejandro before he died, filed a special proceeding for
Although married and having 2 legitimate the probate of the latter’s last will and testament.
children, Martin named Sofia as his sole aheir, having Lourdes was a paramour of Alejandro.
lived with her as husband and wife. The court issued an order admitting Alejandro’s
He devised his entire estate to his forced heirs, will to probate. The legitimate children did not appeal
while the free portion, to Sofia. Rufina and her children from said order.
filed an opposition. The legitimate children filed a “Motion To
The probate court denied probate on the ground Declare The Will Intrinsically Void.” The court granted
that the Will’s admission to probate will be an idle the motion and declared the will intrinsically invalid.
exercise because on the face of the Will, the invalidity if
its intrinsic provision is evident. ISSUE: Can the will be extrinsically valid but intrinsically
invalid?
ISSUE: WON the CA acted in excess of its jurisdiction
when after declaring the last Will and Testament of the RULING: In this case, the court had ruled that the will of
deceased Martin Jugo validly drawn, it went on to pass Alejandro was extrinsically valid but the intrinsic
upon the intrinsic validity of the testamentary provision provisions thereof were void. Thus, the rules of
NO intestacy apply as correctly held by the trial court.
The intrinsic validity is another matter and
RULING: The general rule is that in probate proceedings, questions regarding the same may still be raised even
the court’s area of inquiry is limited to an examination after the will has been extrinsically authenticated . Thus,
and resolution of the extrinsic validity of the Will. The it does not necessarily follow that an extrinsically valid
rule, however, is not inflexible and absolute. Given last will and testament is always intrinsically valid. Even
exceptional circumstances, the probate court is not if the will was validly executed, if the testator provides
powerless to do what the situation constrains it to do for dispositions that deprives or impairs the lawful heirs
and pass upon certain provisions of the Will. of their legitime or rightful inheritance according to the
The probate of a will might become an idle laws on succession, the unlawful provisions/dispositions
ceremony if on its face it appears to be intrinsically void. thereof cannot be given effect.
Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before
ARTICLE 839. The will shall be disallowed in any of the following cases:
it is probated, the court should meet the issue (1) If the formalities required by law have not been complied
There is no question from the records about the with;
fact of a prior existing marriage when Martin Jugo (2) If the testator was insane, or otherwise mentally incapable
of making a will, at the time of its execution;
executed his Will. The very wordings of the Will
(3) If it was executed through force or under duress, or the
invalidate the legacy because the testator admitted he influence of fear, or threats;
was disposing the properties to a person with whom he (4) If it was procured by undue and improper pressure and
had been living in concubinage which is void under the influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
law.
(6) If the testator acted by mistake or did not intend that the
We see no useful purpose that would be served instrument he signed should be his will at the time of affixing his
if we remand the nullified provision to the proper court signature thereto.
in a separate action for that purpose simply because, in

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Sources: Civil Code Volume 3 Succession by Paras, Comments & Jurisprudence on Succession by Jurado, Atty Gravador’s Discussion
& Slides, Personal case digests, EH405 2020 Case Digests, EH 402 2019 Case Digests

ARTICLE 1335. There is violence when in order to wrest consent,  These connote the idea of coercion, mental or
serious or irresistible force is employed.
physical
There is intimidation when one of the contracting parties is
 While their presence in a contract renders it
compelled by a reasonable and well-grounded fear of an imminent
and grave evil upon his person or property, or upon the person or voidable, their presence in a will, however, renders
property of his spouse, descendants or ascendants, to give his the will void
consent.
 SIGNATURE PROCURED BY UNDUE AND
To determine the degree of intimidation, the age, sex and
condition of the person shall be borne in mind. IMPROPER PRESSURE AND INFLUENCE
A threat to enforce one’s claim through competent authority, if  If the will was procured by undue and improper
the claim is just or legal, does not vitiate consent. pressure and influence, on the part of the
ARTICLE 1337. There is undue influence when a person takes beneficiary or of some other person the it shall be
improper advantage of his power over the will of another, depriving disallowed
the latter of a reasonable freedom of choice. The following  Undue influence is when a person takes
circumstances shall be considered: the confidential, family, spiritual
and other relations between the parties, or the fact that the person
improper advantage of his power over the will of
alleged to have been unduly influenced was suffering from mental another, depriving the latter of a reasonable
weakness, or was ignorant or in financial distress. freedom of choice
ARTICLE 1338. There is fraud when, through insidious words or  It connotes the idea of coercion by virtue of
machinations of one of the contracting parties, the other is induced to which the judgment of the testator is displaced,
enter into a contract which, without them, he would not have agreed and he is induced to do that which he otherwise
to.
would not have done.
ARTICLE 1331. In order that mistake may invalidate consent, it should  It is that which substitutes the wishes of
refer to the substance of the thing which is the object of the contract, another for those of the testator.
or to those conditions which have principally moved one or both
 If undue influence has vitiated only some of the
parties to enter into the contract.
Mistake as to the identity or qualifications of one of the parties dispositions, the rest should be considered valid.
will vitiate consent only when such identity or qualifications have  Undue influence in a contract renders it voidable;
been the principal cause of the contract. in a will, same is cause for disallowance because
A simple mistake of account shall give rise to its correction.
the will is void.
 Instances Where the Court Ruled that there
GROUDNS FOR DISALLOWANCE OF WILLS were No Undue Influence
NON-COMPLIANCE WITH FORMALITIES REQUIRED
Mere affection, even if illegitimate, is not


BY LAW
undue influence, as long as the giving was
 If the formalities required by law have not been
voluntary.
complied with then the will shall be disallowed
 Mere inequality, no matter how great, in
 See notes on Solemnities of Wills
distributing the estate is not evidence of undue
 TESTATOR’S INSANITY OR INCAPACITY
influence.
 If the testator was insane, or otherwise mentally
 Mere presence of favored relatives at the
incapable of making a will at the time of its
time of the execution of the will does not
execution
necessarily mean undue influence.
 See notes on Testamentary Capacity
 The fact that some heirs are more favored
 EXECUTED THROUGH FORCE, UNDER DURESS,
than others is proof of neither fraud or undue
INFLUENCE OF FEAR OR THREATS
influence. Diversity of apportionment is the
If the will was executed through force or under
usual reason for making a testament; otherwise,


duress, or the influence of fear, or threats the will

the decedent might as well die intestate.
shall be disallowed
 Neither is undue influence present just
 This involves the execution of the will through
because blood relatives, other than compulsory
violence or intimidation
heirs, have been omitted, for while blood ties
 Violence is when in order to wrest consent,
are strong in the Philippines, it is the testator’s
serious or irresistible force is employed.
right to disregard non-compulsory heirs.
 Intimidation is when one of the contracting
 Neither is undue influence present when a
parties is compelled by a reasonable and
daughter tries by earnest persuasion and
well-grounded fear of an imminent and grave evil
entreaty to make her mother make a new will.
upon his person or property, or upon the person or
 Testamentary disposition that the heirs
property of his spouse, descendants or ascendants,
should not inquire into other property, and that
to give his consent.

jandiyang SUCCESSION LAW | 68

Sources: Civil Code Volume 3 Succession by Paras, Comments & Jurisprudence on Succession by Jurado, Atty Gravador’s Discussion
& Slides, Personal case digests, EH405 2020 Case Digests, EH 402 2019 Case Digests

they should respect the distribution made in the

will, under penalty of forfeiture of their shares in CASES
the free disposal, do not suffice to prove undue
influence or fraud. Disallowance of Wills
 But if there are other facts which explain the
disparity of a distribution, a prima facie case of PASCUAL vs. DE LA CRUZ
undue influence may be shown, in which event, G.R. No. L-24819, May 30, 1969
the proponent of the will has to prove the
non-existence of the undue influence. FACTS: Catalina De La Cruz, single and without any
 SIGNATURE PROCURED BY FRAUD surviving descendant or ascendant, died purporting to
 If the signature of the testator was procured by have left a will naming Andres Pascual as the sole heir
fraud then the will shall be disallowed Andres Pascual sought probate of said will.
 Fraud is when, through insidious words or
Opposing the petition, Pedro De La Cruz and 26
machinations of one of the contracting parties, the other nephews and nieces of the late Catalina De La
other is induced to enter into a contract which, Cruz contested the validity of the will on the grounds
without them, he would not have agreed to. that the formalities required by law were not complied
 Fraud in a contract renders it voidable; in a will,
with; that the testatrix was mentally incapable of
same is cause for disallowance because the will is disposing of her properties by will at the time of its
void. execution; that the will was procured by undue and
 It should be noted that when a beneficiary is the
improper pressure and influence on the part of the
person who prepared or drafted the will, a petitioner Pascual; and that the signature of the
suspicion is created that fraud or undue influence testatrix was obtained through fraud.
was exercised. Probate court admitted the will for probate.
 If fraud has vitiated only some of the dispositions,
The probate court rendered the judgment
the rest should be considered valid. upholding the due execution of the will. The lower court
 MISTAKE OR LACK OF TESTAMENTARY INTENT held that the inconsistencies and contradictions in the
 If the testator acted by mistake or did not intend
testimonies were not substantial to discredit the entire
that the instrument he signed should be his will at testimony.
the time of affixing his signature thereto then the The oppositors further argued that the
will may be disallowed presumption of undue influence must apply in this case
 NOTE: since Pascual, the beneficiary, was the one who
 These grounds are exclusive. Thus, no other
prepared the will.
ground can serve to disallow a will
ISSUE: WON the presumption of undue influence is
REVOCATION DISALLOWANCE applicable in this case NO
Voluntary act of the Given by judicial order
testator RULING: Appellants invoke a presumption of undue
With or without cause Must always be for a legal influence held to exist by American authorities where
cause the beneficiary participates in the drafting or execution
May be partial or total Always total (except when of the will favoring him; but since the will was prepared
the ground of fraud or by Atty. Pascual, although a nephew of the proponent,
undue influence for we do not think the presumption applies; for in the
example affects only normal course of events, said attorney would follow the
certain portions of the instructions of the testatrix; and a member of the bar in
will) good standing may not be convicted of unprofessional
conduct, or of having conspired to falsify a testament,
except upon clear proof
Contestants assail the admission to probate on
the ground that the execution of the will was tainted by
fraud and undue influence exerted by proponent on the
testatrix, and affirm that it was error for the lower court
to have rejected their claim.

jandiyang SUCCESSION LAW | 69

Sources: Civil Code Volume 3 Succession by Paras, Comments & Jurisprudence on Succession by Jurado, Atty Gravador’s Discussion
& Slides, Personal case digests, EH405 2020 Case Digests, EH 402 2019 Case Digests

The basic principles on undue pressure and question (first partition when Bibiano died) is void ab
influence as laid down by the jurisprudence of this initio and Salud Barretto did not acquire any valid title
Court: that to be sufficient to avoid a will, the influence thereto as she is a spurious heir.
exerted must be of a kind that so overpowers and
subjugates the mind of the testator as to destroy his ISSUE: WON the partition should be void because Salud
free agency and make him express the will of another was found out to be not a daughter if Maria and Bibiano
rather than his own; that the contention that a will was NO
obtained by undue influence or improper pressure can
not be sustained on mere conjecture or suspicion , as it RULING: The fact that Salud happened not to be a
is not enough that there was opportunity to exercise daughter of the testator does not preclude her being
undue influence, or a possibility that it may have been one of the heirs expressly named in his testament; for
exercised; that the exercise of improper pressure and Bibiano Barretto was at liberty to assign the free portion
undue influence must be supported by substantial of his estate to whomsoever he chose and the condition
evidence that it was actually exercised; that the burden of Salud as daughter of the testator Bibiano Barretto,
is on the person challenging the will to show that such while untrue, was at no time disputed during the
influence was exerted at the time of its execution; that settlement of the estate of the testator.
mere general or reasonable influence is not sufficient to The proceeding for probate is one in rem and the
invalidate a will; nor is moderate and reasonable court acquires jurisdiction over all persons interested,
solicitation and entreaty addressed to the testator, or through the publication of the notice and any order that
omission of relatives, not forced heirs, evidence of may be entered therein is binding against all of them. A
undue influence. final order of distribution of the estate of a deceased
Tested against these rulings, the circumstances person vests the title to the land of the estate in the
marshalled by the contestants certainly fail to establish distributees.
actual undue influence or improper pressure exercised The only instance in which a party interested in a
on the testatrix by the proponent. probate proceedings may have a final liquidation set
aside is when he is left out by reason of circumstances
REYES vs. BARRETO-DATU beyond his control or through mistake or inadvertence
G.R. No. L-17818, January 20, 1967 not imputable to negligence. Even then, the better
practice to secure relief is reopening of the same case
FACTS: Bibiano Baretto was married Maria Gerardo. by proper motion within the reglementary period,
When Bibiano died he left his shares of properties to his instead of an independent action the effect of which, if
children Salud Baretto, Lucia Milagros Barretto and the successful, would be, as in the instant case, for another
usufruct of the fishpond reserved for his widow, Maria court or judge to throw out a decision or order already
Gerardo. final and executed and reshuffle properties long ago
Maria Gerardo was appointed administratrix. distributed and disposed of."
She prepared a project of partition, which was signed by A project of partition is merely a proposal for
her in her own behalf and as guardian of the minor distribution of the estate that the court may accept or
Milagros Barretto. reject, it is the court alone that makes the distribution
Upon Maria’s death, it was discovered that she of the estate and determines the persons entitled
had executed two wills. In the first, she instituted Salud thereto and the parts to which each is entitled, and it is
and Milagros as her heirs. However in the second will that judicial decree of distribution, once final, that vests
she revoked the first will and left all her properties in title in the distributees. If the decree was erroneous or
favor of Milagros Barretto alone. The lower court held not in conformity with law or the testament, the same
that Salud was not the daughter of the decedent Maria should have been corrected by opportune appeal; but
Gerardo by her husband Bibiano Barretto. once it had become final, its binding effect is like that of
This ruling was appealed to the Supreme Court, any other judgment in rem, unless properly set aside for
which affirmed the same. Having lost the fight for a lack of jurisdiction or fraud. It is thus apparent that
share in the estate of Maria Gerardo as a legitimate heir where a court has validly issued a decree of distribution
of Maria Gerardo, plaintiff now falls back upon the of the estate, and the same has become final, the
remnant of the estate of the deceased Bibiano Barretto. validity or invalidity of the project of partition becomes
However, Milagros contends that the Project of irrelevant.
Partition from which Salud acquired the fishpond in

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