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FORMS OF WILLS

Art. 804. Every will must be in writing and executed in a language or dialect known
to the testator.

The provisions of Art. 804 are mandatory and applies to both notarial and
holographic will. Failure to comply with the requirements nullifies the will.
In Lopez vs. Liboro the court held: There is no statutory requirement that
such knowledge (of language used in the will) be expressly stated in the will
itself.
Extrinsic evidence can be used to prove the testator knew the language used
in the will. In order for presumptions to apply, the following must appear:
1. the will must be in a language or dialect generally spoken in the
place of execution;
and
2. the testator must be a native or resident of said locality

Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testators name written by some other
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
Special Formalities for attested/notarial wills:
(1) Subscribed by the testator or his agent in his presence and by his
express direction at the end thereof, in the presence of the witnesses;
To subscribe denotes writing, to sign denotes simply placing a mark.
Not every signature is necessarily a subscription.
Estate of Maria Salva (1927). When, therefore the law says that the
will shall be signed by the testator or testatrix, the law is fulfilled
not only by the customary written signature but by the testator or
testatrixs thumbmark.
Garcia vs. Lacuesta as cited in Matias vs. Salud. Court denied
probate holding that a will be signed with a cross written after the

testators name is not a sufficient signature. ... in that case no


showing was made that the cross mark was the testators habitual
signature nor was any explanation was given why he should use a
cross when he knew how to sign.
If a will signed by testators agent, it should be stated in the
attestation clause. The agent signing must sign in the testators
presence and by his express direction.
Barut vs. Cabacungan (1912). Where a testator is unable to write
and his name is signed by another at his request, in his presence
and in that of the subscribing witnesses thereto, it is unimportant
whether, so far as the validity of the will is concerned whether the
person who writes the name of the testator signs his own or not.
The signature should be placed at the foot or end of the will.
The physical end of a will is where the writing stops, found after the
attestation clause. While, the logical end, is where the last
testamentary disposition ends.
Presence of witnesses explained in Nera vs. Rimando. The position
of the parties with relation to each other at the moment of
subscription of each signature, must be that they may see each
other sign if they choose to do so. Xxx whether the testator and the
subscribing witnesses to an alleged will sign the instrument in
presence of each other does not depend upon proof of the fact that
their eyes were actually cast upon the paper at the moment of its
subscription by each of them, but at that moment existing
conditions and their position with relation to each other were such
that by merely casting the eyes in the proper direction they could
have seen each other sign.
(2) Attested and subscribed by at least three credible witnesses in the
presence of the testator and of one another;
Difference of Attesting from Subscribing. Attesting is the act of
witnessing while subscribing is the act of signing of witnesses
names in the proper places of the will.
Instrumental Witness. Is one who takes part in the execution of an
instrument or writing.
(3) The testator, or his agent, must sign every page , except the last, on
the left margin in the presence of the witnesses;
The last page need not be signed by the testator on the left margin.
If the entire document consists of only two sheets, the first
containing the will and the second, the attestation clause, there
need not be any marginal signatures at all. (Abangan vs. Abangan,
1919)
(4) The witnesses must sign every page, except the last, on the left margin
in the presence of the testator and of one another;

If the affixation of signatures is done in a single transaction, the


order of signing is immaterial.
If the affixation of signatures is done in several transactions, the
testator should affix his signature ahead of the witnesses.
(5) All pages numbered correlatively in letters on the upper part of each
page;
(6) Attestation clause, stating:
a) the number of pages of the will;
b) the fact that the testator or his agent under his express direction
signed the will and every page thereof, in the presence of the
witnesses;
c) the fact that the witnesses witnessed and signed the will and every
page thereof in the presence of the testator and one another;
Attestation Clause. It is the memorandum or records of facts
wherein the witnesses certify that the instrument has been
executed before them and it has been executed in accordance
with formalities prescribed by law.
The attestation clause is the affair of the witnesses, therefore, it
need not be signed by the testator.
If the defect of the attestation clause goes into the very essence
of the clause itself or consists in the omission of one, some or all
of the essential facts, which according to law, must be stated in
such clause... the defect is substantial in character, as a
consequence of which the will is invalidated.
7. Acknowledgement before a notary public.
Javellana vs. Ledesma (1955). Whether or not the notary signed the
certificatiobn of acknowledgement in the presence of the testatrix
and the witnesses, does not affect the validity of the codicil.
Cruz vs. Villasor. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having
signed the will.

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