CASE- the attestation clause

shall. . .
FACTS ISSUE RULING

ABANGAN v. ABANGAN

The will of Ana Abangan, here, consists of two pages.
The FIRST page contains all the disposition of the
testatrix, and the SECOND page contains only the
attestation clause.

DEFECTS accdg. to the Opponents:
1. Each and every page was not numbered
correlatively;
2. The attestation clause was not signed by the
testatrix


W/N the will is valid
where the AC has not
stated the number of
pages used and no
signature of the
testatrix

YES! Article 805 (3) provides for what should the Attestation Clause state:
1. The number of pages used upon which the will is written;
2. The fact that the testator signed the will every page thereof, or caused some other
person to write his name under his express direction;
3. The signing of the testator or by some person requested by him in the presence of the
instrumental witnesses;
4. The IW witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another.
In this case, the will consisted of 2 pages only, the testamentary disposition and the attestation
clause, and the fact that it was not numbered and was not signed by the testatrix in the AC will
not hold the will invalid because the signatures of the testatrix and of the three witnesses on the
margin and the numbering of the pages of the sheet are formalities not required by the statute.
Moreover, referring specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.

Attestation is the act of witnessing the execution of the will hence it certifies that the will is
executed before them and the manner of execution. It is a mental act.

VILLAFLOR v. TOBIAS


The will of Gregoria Villaflor here consists of 9 pages
including the attestation clause. The will was
opposed to probate for some defects, one of which
was that: the attestation clause was written on a separate
page when in fact the last page of the testamentary
disposition was one-half in blank.




W/N the attestation
clause may be written
on a separate sheet
when it could be
inserted on the last
page of the
testamentary
disposition

YES!

The Court ruled that the fact that the attestation clause of the will is written on a separate page
and not on the last page of the body of the document is a matter of minor importance and is
explained by the fact that if the clause had been written on the eight page of the will in direction
continuation of the body thereof, there would have been no sufficient space on that page for the
signatures of the witnesses to the clause.

It is also to be observed that all of the pages, including that upon which the attestation clause is
written, bear the signatures of all the witnesses and that there is no question whatever as to the
genuineness of said signatures.


IN RE WALTER NEUMARK

The will of Neumark here was written in a German
Language in a single legal-cap sheet. It was signed by
him and the attesting witnesses. However, the will
was not admitted to probate as there was no formal
attestation clause although it was authentic and has
complied the requirements of the law.

W/N absence of an
attestation clause, the
will can be valid

NO, as the amended provision requires that an attestation clause must be present.

It was held in this case that section 618 has been lenient as the absence of form of attestation will
not be held the will invalid, but in the advent of Act 2645 it was expressly stipulated that the
attestation clause must be present as it is the intention of the Legislature that the requirement of
the attestation clause and as to its contents should be mandatory. Thus, absence of which will
make the will invalid, as in this case.




TESTATE OF CAGRO

The will of Vicente Cagro was not admitted for
probate on the ground that the attestation clause was

W/N the will is valid
considering that the

NO!

not signed at the bottom by the attesting witnesses.

The contention of the proponents here that it should
be probated for the reason that it was still signed on
the left margin of the attestation clause, thus has
complied with the requirements of the law.

attestation clause was
not signed at the
bottom thereof, but
only signed on the
left margin
the attestation clause is 'a memorandum of the facts attending the execution of the will' required
by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of
their signatures at the bottom thereof negatives their participation.
As to the contention, the Court said that it is untenable for the reason that the signatures are in
compliance only with the legal mandate that the will be signed on the left margin each and
every page thereof. And if we allow that the AC not signed be admitted as sufficient then it
would be easy to add such clause to a will even if the testator and any or all of the witnesses are
not present.


TESTATE ESTATE OF PAULA
TORAY

The will of Paula Toray was not admitted for probate
on the ground that the attestation clause does not
state that the testatrix signed the will in the presence
of the instrumental witnesses.



W/N the will is valid
considering that the
attestation clause did
not state that the
testatrix signed the
will in the presence of
the witnesses



NO! the will is fatally defective which cannot be cured by proof aliunde

By the attestation clause is meant "that clause wherein the witnesses certify that the instrument
has been executed before them, and the manner of the execution of the same." (Black, Law
Dictionary.) It is signed not by the testator but by the witnesses, for it is a declaration made by
the witnesses and not by the testator. And the law is clear that it is the attestation clause that
must contain a statement, among others, that the testator signed the will in the presence of the
witnesses. Without that statement, the attestation clause is fatally defective.

An examination of section 618 of Act No. 190, prior to, and after its amendment by Act No. 2645,
shows clearly that the legislature intended to exclude evidencealiunde tending to establish that
the will has been executed and attested in conformity with the requirements of the law, where
such compliance does not appear on the face of the will itself.




LEYNEZ v. LEYNEZ

The will of Valerio Leynez was not admitted for
probate on the ground that the attestation clause does
not conform to the requirements of the law as it did
not state that the testator and the three witnesses
signed each and every page of the will in the manner
prescribed by law. It merely states that it was signed
in the presence of the testator and the witnesses

The opposition relied here with so many cases
wherein the will was not proven due to not
complying strictly the requirements of the law with
respect to the attestation clause.

W/N the will be
allowed to probate
considering that the
attestation clause
failed to state that the
will was signed by
the testator and the
witnesses each and
every page thereof


YES, the will was allowed by the Court to be probated.

If the surrounding circumstances point to a regular execution of the will, and the instrument
appears to have been executed substantially in accordance with the requirements of the law, the
inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards
its admission to probate, although the document may suffer from some imperfection of
language, or other non-essential defect. This, in our opinion, is the situation in the present case,
and we, therefore, hold that the requirement that the attestation clause, among other things,
shall state "that the testator signed the will and every page thereof in the presence of three
witnesses, and that the witnesses signed the will in the presence of the testator and of each
other," is sufficiently complied with, it appearing that the testator and the witnesses signed each
and every page of the will according to the stipulation of the parties. (Record on Appeal,
stipulation, pp. 10, 14, 15); and this fact being shown in the will itself, and there being,
furthermore, no question raised as to the authenticity of the signature of the testator and the
witnesses.

An attestation clause is made for the purpose of preserving, in permanent form, a record of the
facts attending the execution of the will, so that in case of failure of the memory of the
subscribing witnesses, or other casualty, they may still be proved.

CUEVAS v. ACHACOSO

The will of Jose Venzon was applied for probate by
his wife, Valentina. However, one Pilar Achacoso
filed another petition for probate a will executed by
the deceased, and prayed that the will applied for
probate by Valentina should be rejected.

Pilar assigned errors: lack of attestation clause in the
will under consideration, or to the fact that, if there is
such attestation clause, the same has not been signed
by the instrumental witnesses, but by the testator
himself, and it is claimed that this defect has the
effect of invalidating the will.

IN WITNESS WHEREOF, I sign this testament or last
will in the municipality of Iba, Zambales, Philippines,
this 10th day of October, 1945, in the presence of the
three witnesses, namely Dr. Nestorio Trinidad, Don
Baldomero Achacoso, and Mr. Proceso Cabal as
instrumental witnesses to my signing; this testament
is written in three (3) sheets marked by letter "A", "B"
and "C" consecutively on top of each sheet and upon
my request and in my presence and also in the
presence of each of the aforesaid instrumental
witnesses, they also signed this testament already
reffered to.
I hereby manifest that every sheet of the aforesaid
testament, on the left-hand margin as well as the
testament itself have been signed by me as also each
of the witnesses has also signed in my presence and
in the presence of each other.
(Sgd.) JOSE VENZON
Witnesses:
(Sgd.) NESTORIO TRINIDAD
(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.


W/N the attestation
clause which was
made by the testator
is invalid, thus the
will be held invalid

NO!

The Court said that the attestation clause itself has complied substantially the requirements of
the law. The doubt arises when it was made by the testator himself and signed by him and the
instrumental witnesses.

The Court cited the case of Aldaba v. Roque, in that case the attestation clause formed part of the
body of the will and its recital was made by the testratrix himself and was signed by her and by
the three instrumental witnesses. In upholding the validity of the will, the court said:
In reality it appears that it is the testratrix who makes the declaration about the points
in the last paragraph of the will; however as the witnesses together with the testratrix,
have signed the said declaration, we are of the opinion and so hold that the words
above quoted of the testament constitute a sufficient compliance with the requirements
of Act No. 2645.
So, the will in the present case was admitted to probate in view of the liberal interpretation of
the will, citing Art. 788 and 791 of the NCC

PAYAD v. TOLENTINO

The will of Leoncia Tolentino was not admitted to
probate on the ground that the attestation clause was
not in conformity with the law as it did not state that
the testatrix caused Atty. Almario to write her name
at her express direction.


Leoncia Tolentino, assisted by Attorney Almario,
placed her thumb mark on each and every page of
time questioned will and the said attorney merely
wrote her name to indicate the place where she
placed said thumb mark. In other words Attorney
Almario did not sign for the testatrix. She signed for
placing her thumb mark on each and every page
thereof "A statute requiring a will to be 'signed' is
satisfied if the signature is made by the testator's
mark." (Quoted by this court from 28 R.C.L., p, 117;
De Gala vs. Gonzales and Ona, 53 Phil., 104, 108






W/N the attestation
is in conformity with
the law where it did
not state that the
testatrix caused some
other person to write
her name

As a general rule, such is not in conformity with the law it would be a fatal defect.

However, in this case, Atty. Almario technically did not sign for the testatrix, what he did was
that he assisted the testatrix to indicate the space where the latter will place her thumb mark;
and it was the testatrix who signed the will by means of putting her thumb mark in each and
every page thereof.

It is clear, therefore, that it was not necessary that the attestation clause in question should state
that the testatrix requested Attorney Almario to sign her name inasmuch as the testratrix signed
the will in question in accordance with law.





CANEDA v. CA

























ECHAVEZ v. DOZEN
CONSTRUCTION

A deed of donation mortis causa was executed by
Vicente Echavez in favor of Manuel Echavez, the
petitioner herein. However, the lot subject in the
deed was conveyed to Dozen Construction through a
Contract to Sell, and then subsequently a Deed of
Absolute Sale was executed.

Now, when Vicente died, Manuel Echavez filed a
petition to approve the deed of donation mortis causa

W/N
acknowledgment and
attestation clause has
the same purpose,
thus the will should
be valid in the
absence of an
attestation clause

NO!

Article 805 (3) and 806 should be applied in this case, as such it indicates that the law
contemplates two distinct acts that serve different purpose.

The Court defined and distinguished acknowledgment from attestation clause.

Acknowledgment is made by one executing a deed, declaring before a competent officer
or court that the deed or act is his own.
in his favor and an action to annul the contract of sale
in favor of Dozen. But such was dismissed on the
ground that the deed did not contain an attestation
clause thus VOID.

Manuel argued that the strict compliance with the
formalities of will should not be applied in his case
where there was an absence of fraud, or bad faith.
And that, the Court failed to recognize the
Acknowledgment portion of the deed which contains
the import and purpose as that of an Attestation
Clause.




Attestation of a will refers to the act of the instrumental witnesses themselves who
certify to the execution of the instrument before them and to the manner of its
execution.

Although the witnesses in the present case acknowledged the execution of the Deed of
Donation Mortis Causa before the notary public, this is not the avowal the law requires from the
instrumental witnesses to the execution of a decedents will. An attestation must state all the
details the third paragraph of Article 805 requires. In the absence of the required avowal by the
witnesses themselves, no attestation clause can be deemed embodied in the Acknowledgement
of the Deed of Donation Mortis Causa.