G.R. No.

L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and
LUTGARDA SANTIAGO, respondents.
GUERRERO , J. :
FACTS:
On June 24, 1961, herein private respondent
Lutgarda Santiago filed a petition with the Court of First
Instance of Rizal docketed as Special Proceedings No.
3617, for the probate of a will alleged to have been
executed by the deceased Isabel Gabriel and designating
therein petitioner as the principal beneficiary and
executrix.
The will submitted for probate, Exhibit "F", which is
typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or
barely two (2) months prior to the death of Isabel
Gabriel.The will itself provides that the testatrix desired
to be buried in the Catholic Cemetery of Navotas, Rizal
in accordance with the rites of the Roman Catholic
Church, all expenses to be paid from her estate; that all
her obligations, if any, be paid; that legacies in specified
amounts be given to her sister, Praxides Gabriel Vda. de
Santiago, her brother Santiago Gabriel, and her nephews
and nieces, Benjamin, Salud, Rizalina (herein petitioner),
Victoria, Ester, Andres, all surnamed Gabriel, and
Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia,
Verena an surnamed Santiago.
To herein private respondent Lutgarda Santiago, who was
described in the will by the testatrix as
"akingmahalnapamangkinnaakingpinalaki, inalagaan at
minahalnakatulad ng isangtunaynaanak" and named as

universal heir and executor, were bequeathed all

properties and estate, real or personal already acquired, or
to be acquired, in her testatrix name, after satisfying the
expenses, debts and legacies as aforementioned.
ISSUE :
Did the respondent Court abuse its discretion and/or
acted without or in excess of its jurisdiction in reverssing
the findings of fact and conclusions of the trial court.

G.R. No. L-21151

February 25, 1924

In re will of Antonio Vergel de Dios, deceased.

RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA
JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponentsappellees.
ROMUALDEZ, J.:

HELD :
Facts:
NO .
We find that the Court of Appeals did not err in
reversing the decision of the trial court and admitting to
probate Exhibit "F", the last will and testament of the
deceased Isabel Gabriel.
In the case at bar, the finding that each and everyone of
the three instrumental witnesses, namely, MatildeOrobia,
CelsoGimpaya and Maria Gimpaya, are competent and
credible is satisfactorily supported by the evidence as
found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely
upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less
has it been shown that anyone of them is below 18 years
of age, of unsound mind, deaf or dumb, or cannot read or
write.
WHEREFORE, IN VIEW OF THE
FOREGOING, the judgment appealed from is hereby
AFFIRMED, with costs against the petitioner.

as a will was propounded by Ramon J.

Fernandez for probate. and contested by Fernando
Vergel de Dios and Francisco, Ricardo and Virgilio
Rustia, the court of First Instance of Manila having
denied its probate.
The applicant takes this appeal, assigning error to the
action of the lower court in holding the attestation fatally
defective and in not finding Act No. 2645 void.
The defects attributed to the will by the contestants are as
follows, to wit:
(a) It was not sufficiently proven that the
testator knew the contents of the will.
(b) The testator did not sign all the pages of the
will.
(c) He did not request anybody to attest the
document as his last will.

(d) He did not sign it in the presence of any

witness.
(e) The witnesses did not sign it in the presence
of the testator, or of each other, nor with
knowledge on the part of the testator that they
were signing his will.
(f ) The witnesses did not sign the attestation
clause before the death of the testator.
(g) This clause was written after the execution
of the dispositive part of the will and was
attached to the will after the death of the
testator.
(h) The signatures of the testator on page 3 of Exhibit A
are not authentic.
Issue: is the attestation clause made in accordance with
the formalities required by law?
Held: yes. In the case at bar the attestation clause in
question states that the requirements prescribed for the
will were complied with, and this is enough for it, as such
attestation clause, to be held as meeting the requirements
prescribed by the law for it.
The fact that in said clause the signature of the testator
does not appear does not affect its validity, for, as above
stated, the law does not require that it be signed by the
testator.
We find no merit in the assignment of error raising the
question as to the validity of Act No. 2645, which is
valid. For the purposes of this decision, it is not necessary

to reason out this conclusion, it being sufficient for the

adjudication of this case to hold the first error assigned
by the appellants to have been demonstrated.
1.

Unson vs. Abella

A will can be admitted to probate,

notwithstanding that one or more witnesses do not
remember having attested it, provided the court is
satisfied upon the evidence adduced that the will has
been executed and signed in the manner prescribed by
law. As a general rule, the attesting witnesses must be
produced when there is opposition to the probate. But
there are exceptions to this rule, for instance, when the
witness is dead, cannot be served with process of the
court, or his reputation for the truth has been questioned,
or he appears hostile to the proponent.
FACTS Pedro Unson, executor of Dona Josefa
Zalameas last will, filed a petition for the probate of the
will of the latter. Attached on the said will is an inventory
of all the properties of Dona Josefa. Opposition was
made thereto by Antonio, Ignacia and Avivencia Abella
and Santiago Vito on the ff. grounds: -will is not paged
correlatively in letters rather it is in Arabic numerals There is no attestation clause in the inventory attached to
the will -Will was not signed by the testatrix and the
witnesses in the presence of each other. Note: only as to
the presented oppositors the two witnesses namely
Gonzalo Avaya and Eugenio Zalamea testified
authenticity of the will. The third witness, Pedro de Jesus,
was not because he was hostile with Unson and has been
meeting with the since the filing of the petition for the
probate of the will of Josefa. But supposing that de Jesus,
when cited, had testified adversely to the application, this
would not by itself have change the result reached by the
court a quo, for section 632 of the Code of Civil
Procedure provides that a will can be admitted to probate,
notwithstanding that one or more witnesses do not
remember having attested it, provided the court is
satisfied upon the evidence adduced that the will has
been executed and signed in the manner prescribed by the

law. ISSUE: WON the will is valid? HELD: YES! 1. As

to the paging of the will, the SC cited the case of Aldaba
v. Roque. Thus: It was held that this way of numbering
the pages of a will is in compliance with the spirit of the
law, inasmuch as either one of these methods indicates
the correlation of the pages and serves to prevent the
abstraction of any of them. In the course of the decision,
we said: "It might be said that the object of the law in
requiring that the paging be made in letters is to make
falsification more difficult, but it should be noted that
since all the pages of the testament are signed at the
margin by the testatrix and the witnesses, the difficulty of
forging the signatures in either case remains the same. In
other words the more or less degree of facility to imitate
the writing of the letters A, B, C, etc., does not make for
the easiness to forge the signatures. 2. The inventory is
referred to in the will as an integral part of it so the
inventory need not have an additional attestation clause at
the end. The actuation of the proponents in NOT bringing
to court Pedro de Jesus does not render the will invalid.
As announced in Cabang vs. Delfinado, the general rule
is that, where opposition is made to the probate of a will,
the attesting witnesses must be produced. Exceptions: a.
when a witness is dead, or b. cannot be served with
process of the court, or c. his reputation for truth has been
questioned or d. He appears hostile to the cause of the
proponent. 3. In the aforementioned cases, the will may
be admitted to probate without the testimony of said
witness, if, upon the other proofs adduced in the case, the
court is satisfied that the will has been duly executed.
ALBERTO BATAC CO DELA ROSA GUERRERO
OLALIA REVOTE SALVADOR TAYAG
1.

Tabaoada v. Rosal (1982)

On the first page (which contained the entire

testamentary dispositions), the testatrix signed at the
bottom, while the witnesses signed at the left-hand
margin. On the second page which contained the
attestation clause, the testatrix signed at the left hand
margin, and the witnesses signed below the attestation

clause. The attestation clause also did not state the

number of pages.
Held: Valid. The signatures of the instrumental
witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of
the testatrix but also the due execution of the will as
embodied in the attestation clause.
The objects of attestation and of subscription
were fully met and satisfied when the witnesses signed at
the left margin of the sole page which contained all the
testamentary dispositions.
The failure to state the number of pages would
have been a fatal defect were it not for the fact that, in
this case, it is discernible from the entire will that it is
really composed of only 2 pages duly signed by the
testatrix and her instrumental witnesses.
2.

be acknowledged and not merely subscribed and sworn

to. A notarial will that is not acknowledged before a
notary public by the testator and the witnesses is fatally
defective, even if it is subscribed and sworn to before a
notary public.
FELIX AZUELA v. COURT OF APPEALS and
GERALDA AIDA CASTILLO, substituted
by ERNESTO G. CASTILLO
G.R. 122880, 12 April 2006, Tinga, J. (Third Division)

and it was not signed by the attesting witnesses at the

bottom thereof. The said witnesses affixed
their signatures on the left-hand margin of both pages of
the will though. Geralda Castillo opposed
the petition, claiming that the will was a forgery. She also
argued that the will was not executed and
attested to in accordance with law. She pointed out that
the decedents signature did not appear on

Facts:

Azuela v. CA (2006)

Will was two pages long. The number of pages

were also not stated in the attestation, only a blank was
there.
The will was not properly acknowledged.
(Nilagdaan ko at ninotario ko ngayong 10 Hunyo, dito
sa Manila.)
The witnesses also did not sign under the
attestation clause but on the left hand margin of the page.
Held: Invalid will.
Issue of number of pages: no substantial
compliance in this case because no statement in the
attestation clause or anywhere else in the will itself as to
the number of pages which comprise the will.
Issue of witnesses not signing under the
attestation clause: the signatures to the attestation clause
establish that the witnesses are referring to the statements
contained in the attestation clause itself. the attestation
clause is separate and apart from the disposition of the
will. They should sign below it.
Issue of not properly acknowledged: contrary
to Art 806. Acknowledgement is the act of one who has
executed a deed in going before some competent officer
and declaring it to be his act or deed. Moreover, will must

two (2) pages and was written in Filipino. The attestation

clause did not state the number of pages

the second page of the will, and the will was not properly
acknowledged.

A will whose attestation clause does not contain the

number of pages on which the will is written is fatally

The trial court held the will to be authentic and to have

been executed in accordance with

defective. A will whose attestation clause is not signed by

the instrumental witnesses is fatally defective. And
perhaps

law and, thus, admitted it to probate, calling to fore the

modern tendency in respect to the

most importantly, a will which does not contain an

acknowledgment, but a mere jurat, is fatally defective.
Any one of
these defects is sufficient to deny probate. A notarial will
with all three defects is just aching for judicial rejection.
Felix Azuela filed a petition with the trial court for the
probate of a notarial will purportedly
executed by Eugenia E. Igsolo on June 10, 1981 and
notarized on the same day. The will consisted of

formalities in the execution of a willwith the end in

view of giving the testator more freedom in
expressing his last wishes. According to the trial court,
the declaration at the end of the will under
the sub-title, Patunay Ng Mga Saksi, comprised the
attestation clause and the acknowledgement,
and was a substantial compliance with the requirements
of the law. It also held that the signing by the
subscribing witnesses on the left margin of the second
page of the will containing the attestation

clause and acknowledgment, instead of at the bottom

thereof, substantially satisfied the purpose of

written is fatally defective. A will whose attestation

clause is not signed by the instrumental witnesses

identification and attestation of the will. The Court of

Appeals, however, reversed the trial courts

is fatally defective. And perhaps most importantly, a will

which does not contain an acknowledgment,

decision and ordered the dismissal of the petition for

probate. It noted that the attestation clause

but a mere jurat, is fatally defective. Any one of these

defects is sufficient to deny probate. A notarial

failed to state the number of pages used in the will, thus

rendering the will void and undeserving of

will with all three defects is just aching for judicial

rejection. RECENT JURISPRUDENCE CIVIL LAW

probate.

Prior to the New Civil Code, the statutory provision

governing the formal requirements of

Azuela argues that the requirement under Article 805 of

the Civil Code that the number of
pages used in a notarial will be stated in the attestation
clause is merely directory, rather than
mandatory, and thus susceptible to what he termed as
the substantial compliance rule.

wills was Section 618 of the Code of Civil Procedure.

Extant therefrom is the requirement that the
attestation state the number of pages of the will. The
enactment of the New Civil Code put in force a
rule of interpretation of the requirements of wills, at least
insofar as the attestation clause is

ISSUE:

concerned, that may vary from the philosophy that

governed the said Section 618. Article 809 of the

Whether or not the subject will complied with the

requirements of the law and, hence,

Civil Code, the Code Commission opted to recommend a

more liberal construction through the

should be admitted to probate

substantial compliance rule. However, Justice J.B.L.

Reyes cautioned that the rule must be limited to

HELD:
The petition is DENIED.
A will whose attestation clause does not contain the
number of pages on which the will is

disregarding those defects that can be supplied by an

examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing
witnesses are

three or the will was notarized...But the total number of

pages, and whether all persons required to sign did so in
the
presence of each other must substantially appear in the
attestation clause, being the only check against perjury in
the
probate proceedings. The Court suggested in Caneda v.
Court of Appeals (G.R. No. 103554, May 28, 1993,
222 SCRA 781): the rule, as it now stands, is that
omission which can be supplied by an
examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal
and, correspondingly, would not obstruct the allowance to
probate of the will being assailed.
However, those omissions which cannot be supplied
except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the
will itself.
The failure of the attestation clause to state the number of
pages on which the will was
written remains a fatal flaw, despite Art. 809. This
requirement aims at safeguarding the will against
possible interpolation or omission of one or some of its
pages and thus preventing any increase or
decrease in the pages. Following Caneda, there is
substantial compliance with this requirement if the

will states elsewhere in it how many pages it is

comprised of, as was the situation in Singson and

statements contained in the attestation clause itself. An

unsigned attestation clause results in an

Taboada. In this case, however, there could have been no

substantial compliance with the

unattested will. Even if the instrumental witnesses signed

the left-hand margin of the page containing

requirements under Art. 805 of the Civil Code since there

is no statement in the attestation clause or

the unsigned attestation clause, such signatures cannot

demonstrate these witnesses undertakings in

anywhere in the will itself as to the number of pages

which comprise the will. There was an

the clause, since the signatures that do appear on the page

were directed towards a wholly different

incomplete attempt to comply with this requisite, a space

having been allotted for the insertion of the

avowal.

number of pages in the attestation clause. Yet the blank

was never filled in.
The subject will cannot be considered to have been
validly attested to by the instrumental

The notary public who notarized the subject will wrote,

Nilagdaan ko at ninotario ko ngayong
10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.
By no manner of contemplation can these words

public by the testator and the witnesses is fatally

defective, even if it is subscribed and sworn to RECENT
JURISPRUDENCE CIVIL LAW
before a notary public. The importance of the
requirement of acknowledgment is highlighted by the
fact that it had been segregated from the other
requirements under Art. 805 and entrusted into a
separate provision, Art. 806. The express requirement of
Art. 806 is that the will be acknowledged,
and not merely subscribed and sworn to. The
acknowledgment coerces the testator and the
instrumental witnesses to declare before an officer of the
law that they had executed and subscribed
to the will as their own free act or deed. Such declaration
is under oath and under pain of perjury,

witnesses. While the signatures of the instrumental

witnesses appear on the left-hand margin of the

be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a
deed

will, they do not appear at the bottom of the attestation

clause. Art. 805 particularly segregates the

in going before some competent officer or court and

declaring it to be his act or deed. It might be

requirement that the instrumental witnesses sign each

page of the will, from the requisite that the will

possible to construe the averment as a jurat, even though

it does not follow to the usual language

be attested and subscribed by them. The signatures on the

left-hand corner of every page signify,

thereof. A jurat is that part of an affidavit where the

notary certifies that before him/her, the

among others, that the witnesses are aware that the page
they are signing forms part of the will. On

document was subscribed and sworn to by the executor.

G.R. No. 103554 May 28, 1993

It may not have been said before, but a notarial will that
is not acknowledged before a notary

TEODORO CANEDA, LORENZA CANEDA,

TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO

the other hand, the signatures to the attestation clause

establish that the witnesses are referring to the

thus allowing for the criminal prosecution of persons who

participate in the execution of spurious
wills, or those executed without the free consent of the
testator. It also provides a further degree of
assurance that the testator is of certain mindset in making
the testamentary dispositions to those
persons he/she had designated in the will.

CABALLERO, VICTOR RAGA, MAURICIA

RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM
CABRERA, as Special Administrator of the Estate of
Mateo Caballero, respondents.

REGALADO, J.:

Facts:
On December 5, 1978, Mateo Caballero, a
widower without any children, already in the twilight
years of his life executed a last will and testament before
three attesting witnesses and he was duly assisted by his
lawyer and a notary public. It was declared therein that,
among other things that the testator was leaving by way
of legacies and devises his real and personal properties to
specific persons, all of whom do not appear to be related
to Mateo. Not long after, he himself filed a petition
before the CFI seeking the probate of his last will and
testament but the scheduled hearings were postponed,
until the testator passed away before his petition could
finally be heard by the probate court. Benoni Cabrera,
one of the legatees named in the will, sought his
appointment as special administrator of the testators
estate but due to his death, he was succeeded by William

Cabrera, who was appointed by RTC which is already the

probate court.
PETITIONERS: The petitioners assail to the allowance
of the testators will on the ground that it was not
executed in accordance with all the requisites of law
since the testator was already in a poor state of health
such that he could not have possibly executed the same.
Petitioners likewise contend that the will is null and void
because its attestation clause is fatally defective since it
fails to specifically state that the instrumental witnesses
to the will witnessed the testator signing the will in their
presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one
another.
RESPONDENTS: The respondent, on the other hand,
argue that Mateo was of sound and disposing mind and in
good health when he executed his will. Further, they also
contend that the witnesses attested and signed the will in
the presence of the testator and of each other.

certify that the instrument has been executed

before them and to the manner of the execution
of the same. It is a separate memorandum or
record of the facts surrounding the conduct of
execution and once signed by the witnesses; it
gives affirmation to the fact that compliance
with the essential formalities required by law
has been observed. Under the 3rd paragraph of
Article 805, such a clause, the complete lack of
which would result in the invalidity of the will,
should state:
1.

The number of pages used

upon which the will is
written;

2.

That the testator signed, or

expressly cause another to
sign, the will and every
page thereof in the
presence of the attesting
witnesses; and

3.

That the attesting witnesses

witnessed the signing by
the testator of the will and
all its pages, and that the
said witnesses also signed
the will and every page
thereof in the presence of
the testator and of one
another.

Issues:
1.

Whether or not the attestation clause in the last will

of Mateo Caballero is fatally defective such that
whether or not it affects the validity of the will.

2.

Whether or not the attestation clause complies with

the substantial compliance pursuant to Article 809
of the Civil Code.

Held:
1.

An attestation clause refers to that part of an

ordinary will whereby the attesting witnesses

It will be noted that Article 805 requires that the witness

should both attest and subscribe to the will in the
presence of the testator and of one another. Attestation
and subscription differ in meaning. Attestation is the

act of sense, while subscription is the act of the hand. The

attestation clause herein assailed is that while it recites
that the testator indeed signed the will and all its pages in
the presence of the three attesting witnesses and states as
well the number of pages that were used, the same does
not expressly state therein the circumstance that said
witnesses subscribed their respective signatures to the
will in the presence of the testator and of each other.
What is then clearly lacking is the statement that the
witnesses signed the will and every page thereof in the
presence of the testator and of one another.
2.

The absence of the statement required by law is

a fatal defect or imperfection which must
necessarily result in the disallowance of the
will that is here sought to be admitted to
probate. Petitioners are correct in pointing out
that the defect in the attestation clause
obviously cannot be characterized as merely
involving the form of the will or the language
used therein which would warrant the
application of the substantial compliance rule,

as contemplated in Article 809 of the Civil

Code:
In the absence of bad faith, forgery, or fraud or undue and
improper pressure and influence, defects and
imperfection in the form of attestation or in the language
used therein shall not render the will invalid if it is not
proved that the will was in fact executed and attested in
substantial compliance with all the requirements of
Article 805.
The defects and imperfection must only be with respect
to the form of the attestation or the language employed
therein. Such defects or imperfection would not render a
will invalid should it be proved that the will was really
executed and attested in compliance with Article 805.
These considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses
signed each and every page of the will in the presence of
the testator and of each other. In such a situation, the
defect is not only in the form or language of the
attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated

in the attestation clause of a will. That is precisely the

defect complained of in the present case since there is no
plausible way by which it can be read into the questioned
attestation clause statement, or an implication thereof,
that the attesting witness did actually bear witness to the
signing by the testator of the will and all of its pages and
that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of
one another.
WHEREFORE, the petition is hereby GRANTED and
the impugned decision of respondent court is hereby
REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the
Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the matter
of the Intestate Estate of Mateo Caballero) as an active
case and thereafter duly proceed with the settlement of
the estate of the said decedent.