Codoy v Calugay| G.R. No. 103554 | 05-23-1993 | Notarial Will | Alexis A.
Hiceta The fifth was an employee of the DENR who testified that she was familiar with the
Before us is a petition for review on certiorari of the decision of the Court of Appeal
and its resolution denying reconsideration
BRIEFER: Article 811 of the New Civil Code states that in the probate of holographic
will, it shall be necessary 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
handwriting of the testator. If the will is contested, at least three of such witnesess shall
be required.
In the absence of any competent witness referred to in the preceding paragraph, and if
the court deem it necessary, expert testimony may be resorted to.
DOCTRINE: The will must be acknowledged before a notary public by the testator
and the attesting witnesses. The attestation clause need not be written in a language
known to the testator or even to the attesting witnesses.
Facts: On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de
Ramonal, filed a petition for probate of the said will. They attested to the genuineness
and due execution of the will on 30 August 1978.
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that the
will was a forgery and that the same is even illegible. They raised doubts as regards
the repeated appearing on the will after every disposition, calling the same out of the
ordinary. If the will was in the handwriting of the deceased, it was improperly
procured.
Evangeline Calugay, etc. presented witnesses and various documentary evidence:
The first witness was the clerk of court of the probate court who produced and
identified the records of the case bearing the signature of the deceased.
The second witness was election registrar who was made to produce and identify the
voter’s affidavit, but failed to as the same was already destroyed and no
longer available.
The third, the deceased’s niece, claimed that she had acquired familiarity with the
deceased’s signature and handwriting as she used to accompany her in collecting
rentals from her various tenants of commercial buildings and the deceased always
issued receipts. The niece also testified that the deceased left a holographic will
entirely written, dated and signed by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate proceedings
of her late husband, who said that the signature on the will was similar to that of the
deceased but that he can not be sure.
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signature of the deceased which appeared in the latter’s application for pasture permit.
The fifth, respondent Evangeline Calugay, claimed that she had lived with the
deceased since birth where she had become familiar with her signature and that the
one appearing on the will was genuine.
Codoy and Ramonal’s demurrer to evidence was granted by the lower court. It was
reversed on appeal with the Court of Appeals which granted the probate.
ISSUE: Whether or not Article 811 of the Civil Code, providing that at least three
witnesses explicitly declare the signature in a contested will as the genuine signature
of the testator, is mandatory
Held: Yes. The word “shall” connotes a mandatory order, an imperative obligation and
is inconsistent with the idea of discretion and that the presumption is that the word
“shall”, when used in a statute, is mandatory.
In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of
the deceased and the evil to be prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to defeat the wishes of the
testator.
The paramount consideration in the present petition is to determine the true intent of
the deceased.
A visual examination of the holographic will convinces that the strokes are different
when compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in support of
their opposition.
The object of solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore, 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 not the object of the law to restrain and curtail the exercise
the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as
the will of the testator, which is why if the holographic will is contested, the law
requires three witnesses to declare that the will was in the handwriting of the deceased.
Article 811, paragraph 1. provides: “In the probate of a holographic will, it shall be
necessary 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 handwriting of the
testator. If the will is contested, at least three of such witnesses shall be required.”

The word “shall” connotes a mandatory order, an imperative obligation and is

inconsistent with the idea of discretion and that the presumption is that the word
“shall”, when used in a statute, is mandatory.