heiress and giving nothing at all to Agapito who was still alive.
Article 804
Suroza v. Honrado A.M. No. 2026-CFI, 19 December 1981, 110 SCRA 388
FACTS:
In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her house and lot to
a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as the executrix in
the said will and she petitioned before CFI Rizal that the will be admitted to probate. The
presiding judge, Honrado admitted the will to probate and assigned Paje as the administratrix.
Honrado also issued an ejectment order against the occupants of the house and lot subject of
the will.
Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was confined in the
Veteran’s Hospital), learned of the probate proceeding when she received the ejectment order
(as she was residing in said house and lot).
Nenita opposed the probate proceeding. She alleged that the said notarial will is void because
(a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a stranger to
Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still alive and is the compulsory heir,
(c) the notarial will is written in English a language not known to Marcelina because the latter
was illiterate so much so that she merely thumbmarked the will, (d) the notary public who
notarized will admitted that Marcelina never appeared before him and that he notarized the said
will merely to accommodate the request of a lawyer friend but with the understanding that
Marcelina should later appear before him but that never happened.
Honrado still continued with the probate despite the opposition until testamentary proceeding
closed and the property transferred to Marilyn Sy. Nenita then filed this administrative case
against Honrado on the ground of misconduct.
ISSUE:
Whether or not Honrado is guilty of misconduct for admitting into probate a void will.
RULING:
Yes. Despite the valid claim raised by Nenita, he still continued with the testamentary
proceeding, which showed his wrongful intent. He may even be criminally liable for knowingly
rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or
interlocutory order by reason of inexcusable negligence or ignorance.
The will is written in English and was thumb marked by an obviously illiterate Marcelina. This
could have readily been perceived by Honrado that that the will is void. In the opening paragraph
of the will, it was stated that English was a language “understood and known” to the testatrix.
But in its concluding paragraph, it was stated that the will was read to the testatrix “and
translated into Filipino language.” That could only mean that the will was written in a language
not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision
of Article 804 of the Civil Code that every will must be executed in a language or dialect known
to the testator.
Had Honrado been careful and observant, he could have noted not only the anomaly as to the
language of the will but also that there was something wrong in instituting to Marilyn Sy as sole
Honrado was fined by the Supreme Court.
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Abangan v. Abangan, 40 Phil 476, AVANCENA
On September 19, 1917, CFI of Cebu admitted to probate Ana Abangan’s will executed July,
1916. From this decision the opponents appealed.
The will consists of 2 sheets. The first contains all the disposition of the testatrix, duly signed at
the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by
three witnesses. The following sheet contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin
by the testatrix and the three witnesses, nor numbered by letters. These omissions, according to
appellants’ contention, are defects whereby the probate of the will should have been denied.
Whether or not the will was duly admitted to probate.
YES. In requiring that each and every sheet of the will be signed on the left margin by the
testator and three witnesses in the presence of each other, Act No. 2645 evidently has for its
object the avoidance of substitution of any of said sheets which may change the disposition of
the testatrix. But when these dispositions are wholly written on only one sheet (as in the instant
case) signed at the bottom by the testator and three witnesses, their signatures on the left
margin of said sheet are not anymore necessary as such will be purposeless.
In requiring that each and every page of a will must be numbered correlatively in letters placed
on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know
whether any sheet of the will has been removed. But, when all the dispositive parts of a will are
written on one sheet only, the object of the statute disappears because the removal of this single
sheet, although unnumbered, cannot be hidden.
In a will consisting of two sheets the first of which contains all the testamentary dispositions and
is signed at the bottom by the testator and three witnesses and the second contains only the
attestation clause and is signed also at the bottom by the three witnesses, it is not necessary
that both sheets be further signed on their margins by the testator and the witnesses, or be
paged.
The object of the 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 primordal 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 of the right to make a will. So when
an interpretation already given assures such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely unnecessary, useless and frustative of the
testator’s last will, must be disregarded.
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XXXXXX Topic: Notarial Wills

Doctrine/s:
TESTATOR'S SIGNATURE. — It was not necessary that the attestation clause in question should state that
the testatrix requested Attorney A to sign her name inasmuch as the testatrix signed the will in question
in accordance with law.
TESTATOR'S MARK. — "A statute requiring a will to be 'signed' is satisfied if the signature is made by the
testator's mark."
Facts:
VIctorio Payad and Aquilina Tolentino filed an appeal from the decision of the trial court to deny the
probate of the will of one Leoncia Tolentino.
That court found that the will in question was executed by the deceased on the date appearing thereon,
September 7, 1933, one day before the death of the testatrix, but the court, denied probate on the
ground that the attestation clause was not in conformity with the requirements of law in that it is not
stated therein that the testatrix caused Attorney Almario to write her name at her express direction.
The appeal of Tolentino is based upon the alleged failure of the trial court in not finding that the will in
question was executed after the death of Leoncia Tolentino, or that she was mentally and physically
incapable of executing said will one day before her death.
The contention of VIctorio Payad on the otherhand was that the trial court denied probate of the will on
the sole ground that the attestation clause does not state that the testatrix requested Attorney Almario
to write her name.
Issue: W/N the attestation clause was in conformity with the requirements of law
Held: Yes.
The evidence of record establishes the fact the Leoncia Tolentino, assisted by Attorney Almario, placed
her thumb mark on each and every page of the questioned will and that 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 by placing her thumb mark on 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 testatrix signed the will in
question in accordance with law.
Dispositive: The appealed order of the trial court is reversed and the questioned will of Leoncia
Tolentino, deceased, is hereby admitted to probate with the costs of this appeal against the oppositor-
appellant.
Notes: (facts from the sept. 1936 case, baka kasi magulo yung instant case kasi wala masyado details)
Leoncia Tolentino, notwithstanding her advanced age of 92 years, was in good health until September 1,
1933. She had a slight cold on said date for which reason she was visited by her physician, Dr. Florencio
Manuel. Said physician again visited her three or four days later and found her still suffering from said
illness but there was no indication that she had but a few days to live. She ate comparatively well and
conserved her mind and memory at least long after noon of September 7, 1933.
On September 7, 1933, she made a will prepared by Attorney Marciano Almario between 11 and 12
o'clock noon in her house bequeathing her property to the petitioner Victorio Payad in compensation
according to her, for his diligent and faithful services rendered to her.
The 3 page will was:
written by Attorney Almario in his own handwriting, and was written in Spanish because he had been
instructed to do so by the testatrix
read to her in the presence of: Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who
were then present.
approved all the contents of the document by the testatrix and
sign by means of testatrix’s thumbmark because she was too weak to hold a pen.
attorney later signed the three pages of the will in the presence of the testatrix and also of Pedro L. Cruz,
Jose Ferrer Cruz and Perfecto L. Ona, who all then signed as well.
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CASE DIGEST: MATIAS V. SALUD (L-10751, 23 JUNE 1958)
Matias v.Salud
L-10751, 23 June 1958
FACTS:
The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina Raquel was
suffering from herpes zoster that afflicted the right arm and shoulder of the testatrix, which
made writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina
attempted to sign, but since it was so painful she just managed to thumbmarked the  foot of
the document and the left margin at each page. The parties opposing the probate of the will
contended that the will was void due to the irregularities in the execution thereof.
One of the points raised by the oppositors was that the finger mark can not be regarded as the
decedent’s valid signature as it does not show distinct identifying ridgelines. And since the finger
mark was an invalidsignature, there must appear in the attestation clause that another person
wrote the testator’s name at his request.
ISSUE:
W/N the will was valid.
HELD:
YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as to
require dexterity that can be expected of very few persons; testators should not be required to
possess the skill of trained officers.
And as to the validity of the thumbprints as signature, the SC held that it has been held in a long
line of cases that a thumbprint is always a valid and sufficient signature for the purpose of
complying with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. A
thumbprint is considered as a valid and sufficient signature in complying with
the requirements of the article.
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CASE DIGEST: GARCIA V. LACUESTA (90 P 489)
Garcia v. Lacuesta
90 P 489
FACTS:
This case involves the will of Antero Mercado, which among other defectswas signed by the
testator through a cross mark (an “X”). The will was signed by Atty. Javier who wrote the name
of Mercado as testator and the latter allegedly wrote a cross mark after his name. The CFI
allowed the will but the CA disallowed it because its attestation clause was defective for failing to
certify 1) that the will was signed by Atty. Javier at the express direction of the testator, 2) that
the testator wrote a cross at the end of his name after Atty. Javier signed for him, and 3) that the
3 witnesses signed the will in the presence of the testator and of each other.
ISSUE:
Whether the will should be allowed despite the defect of the attestationclause since the testator
had placed a cross mark himself as his signature.
HELD:
The attestation clause is fatally defective for failing to state that Mercadodirected Javier to write
the testator’s name under his express direction. Petitioner’s argument that such recital is
unnecessary because the testator signed the will himself using a cross mark which should be
considered the same as a thumb-mark (which has been held sufficient in past cases) is not
acceptable. A cross mark is not the same as a thumb mark, because the cross mark does not have
the same trustworthiness of a thumb mark.
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CASE DIGEST: BARUT V. CABACUNGAN (21 P 461)
Barut v. Cabacungan
21 P 461
FACTS:
Barut applied for the probate of the will of deceased, Maria Salomon. The testatrix stated in the
will that being unable to read or write, the will was read to her by Ciriaco Concepcion and
Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix.
The probate was contested by a number of the relatives of the deceased on various grounds.
The probate court found that the will was not entitled to probate because “the handwriting of the
person who it is alleged signed the name of the testatrix to the will for and on her behalf looked
more like the handwriting of one of the other witnesses to the will than to the person whose
handwriting it was alleged to be” (i.e. The probate court denied probate because the signature
seemed to not have been by Severo Agayan but by another witness).
ISSUE:
Was the dissimilarity in handwriting sufficient to deny probate of the will?
HELD:
No. The SC found that the mere dissimilarity in writing is sufficient to overcome the
uncontradicted testimony of all the witnesses that the signature of the testatrix was written by
Severo Agayan. It is also immaterial who writes the name of the testatrix provided it is written at
her request and in her presence and in the presence of all the witnesses to the execution 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 attested and subscribed it in
her presence and in the presence of each other. It may be wise that the one who signs the
testator’s name signs also his own; but that is not essential to the validity of the will.
The court also held that the 3 cases cited by the lower court was not applicable. In those cases,
the person who signed the will for the testator wrote his own name instead of the testator’s, so
that the testator’s name nowhere appeared in the will, and were thus wills not duly executed.
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Nera v. Rimando Digest
Nera v. Rimando 
G.R. L-5971 February 27, 1911
Ponente: Carson, J.:
'Test of Presence'
Facts:
1. At the time the will was executed, in a large room connecting with a smaller room by a doorway where
a curtain hangs across, one of the witnesses was in the outside room when the other witnesses were
attaching their signatures to the instrument.
2. The trial court did not consider the determination of the issue as to the position of the witness as of
vital importance in determining the case. It agreed with the ruling in the case of Jaboneta v. Gustillo that
the alleged fact being that one of the subscribing witnesses  was in the outer room while the signing
occurred in the inner room, would not be sufficient to invalidate the execution of the will.
3. The CA deemed the will valid.
Issue: Whether or not the subscribing witness was able to see the testator and other witnesses in the
act of affixing their signatures.
HELD: YES
The Court is unanimous in its opinion that had the witnesses been proven to be in the outer room when
the testator and other witnesses signed the will in the inner room, it would have invalidated the will
since the attaching of the signatures under the circumstances was not done 'in the presence' of the
witnesses in the outer room. The line of vision of the witness to the testator and other witnesses was
blocked by the curtain separating the rooms. 
The position of the parties must be such that with relation to each other at the moment of the attaching
the signatures, they may see each other sign if they chose to.
In the Jaboneta case, the true test of presence is not whether or not they actualy saw each other sign but
whether they might have seen each other sign if they chose to doso considering their physical, mental
condition and position in relation to each other at the moment of the inscription of the signature.
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Icasiano v. Icasiano Digest
Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964
Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his
appointment as executor thereof. It appears from the evidence that the testatrix died on
September 12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it was
prepared in duplicates, an original and a carbon copy.
2. On the day that it was subscribed and attested, the lawyer only brought the original copy of
the will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to
sign one of the pages in the original copy but admitted he may have lifted 2 pages
simultaneously instead when he signed the will. Nevertheless, he affirmed that the will was
signed by the testator and other witnesses in his presence.
Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature
to a page is sufficient to deny probate of the will
RULING: No, the failure to sign was entirely through pure oversight or mere inadvertence. Since
the duplicated bore the required signatures, this proves that the omission was not intentional.
Even if the original is in existence, a duplicate may still be admitted to probate since the original
is deemed to be defective, then in law, there is no other will bu the duly signed carbon duplicate
and the same can be probated.
The law should not be strictly and literally interpreted as to penalize the testatrix on account of
the inadvertence of a single witness over whose conduct she has no control of. Where the
purpose of the law is to guarantee the identity of the testament and its component pages, and
there is no intentional or deliberate deviation existed.
Note that this ruling should not be taken as a departure from the rules that the will should be
signed by the witnesses on every page. The carbon copy duplicate was regular in all respects.
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CASE DIGEST: CAGRO V. CAGRO (92 P 1032)
Cagro v. Cagro
92 P 1032
FACTS:
Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent allegedly made a will prior to
his death, the will was probated before the CFI of Samar. However, the oppositors-appellant
objected the probate proceeding alleging that the will is fatally defective because
its attestationclause is not signed by the attesting witnesses. It is undisputed that the signatures
of the three witnesses to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand margin.
ISSUE:
W/N the will may be probated even if the signatures of the witnesses do not appear at the bottom
of the attestation clause, and instead, they were placed on the left-hand margin of the page
containing the same.
HELD:
No. The position taken by the oppositor-appellant is correct. 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.
The petitioner-appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to
the attestation clause. This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of all its pages. If
an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Bautista Angelo, J. dissenting:
I dissent. In my opinion the will in question has substantially complied with the formalities of
the law and, therefore, should be admitted to probate. It appears that the will was signed by the
testator and was attested by three instrumental witnesses, not only at the bottom, but also on the
left-hand margin. The witnesses testified not only that the will was signed by the testator in their
presence and in the presence of each other but also that when they did so, the attestation clause
was already written thereon. Their testimony has not been contradicted. The only objection set
up by the oppositors to the validity of the will is the fact that the signatures of the instrumental
witnesses do not appear immediately after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil.
476), this court said that when the testamentary dispositions “are wholly written on only one
sheet signed at the bottom by the testator and three witnesses (as the instant case),their
signatures on the left margin of said sheet would be completely purposeless.” In such a case, the
court said, the requirement of the signatures on the left hand margin was not necessary because
the purpose of the law — which is to avoid the substitution of any of the sheets of the will,
thereby changing the testator’s dispositions — has already been accomplished. We may say the
same thing in connection with the will under consideration because while the three instrumental
witnesses did not sign immediately by the majority that it may have been only added on a
subsequent occasion and not at the uncontradicted testimony of said witnesses to the effect that
such attestation clause was already written in the will when the same was signed.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista’s dissenting opinion and may add that the majority decision
erroneously sets down as a fact that the attestationclause was not signed when the witnesses’
signatures appear on the left margin and the real and only question is whether such signatures
are legally sufficient. The law on wills does not provide that the attesting witness should sign the
clause at the bottom. In the absence of such provision, there is no reason why the signatures on
the margin are not acceptable.
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Testate Estate of Cagro v. Cagro Digest
Testate Estate of Cagro vs. Cagro
G.R. L-5826
Facts:  and witnesses must sign in the presence of each other, all that is thereafter required is that "every
1. The case is an appeal interposed by the oppositors from a decision of the CFI of Samar which admitted
to probate a will allegedly executed by Vicente Cagro who died in Pambujan, Samar on Feb. 14, 1949.
2. The appellants insisted that the will is defective because the attestation was not signed by the
witnesses at the bottom although the page containing the same was signed by the witnesses on the left
hand margin.
3. Petitioner contended that the signatures of the 3 witnesses on the left hand margin conform
substantially to law and may be deemed as their signatures to the attestation clause.
Issue: Whether or not the will is valid
HELD: Will is not valid. The attestation clause is a memorandum of the facts attending the execution of
the will. It is 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 negatives their participation.
Moreover, the signatures affixed on the let hand margin is not substantial conformance to the law. The
said signatures were merely in conformance with the requirement that the will must be signed on the
left-hand margin of all its pages. If the attestation clause is unsigned by the 3 witnesses at the bottom, it
would be easier to add clauses to a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses.
The probate of the will is denied.
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(ARTICLE 806)
JAVELLANA VS LEDESMA
G. R. No. L-7179
June 30, 1955
FACTS: The deceased, Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29,
1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and. Vicente Yap as witnesses.
The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed
from the decision, insisting that the said exhibits were not executed in conformity with law.
The most important variation noted by the contestants concerns that signing of the
certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan. Unlike the testament,
this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be
acknowledged before a notary public (Art. 806). The instrumental witnesses (who happen to be the
same ones who attested the will of 1950) asserted that after the codicil had been signed by the
testratrix and the witnesses at San Pablo Hospital, the same was signed and sealed by notary public
Gimotea on the same occasion. On the other hand, Gimotea afirmed that he dfd not do so, but
brought the codicil to his office, and signed and sealed it there.
ISSUE: Whether or not the notary signed the certification of acknowledgment without the presence
of the testatrix and the witnesses would render the testament/codicil invalid and ineffective.
RULING: No. Whether or not the notary signed the certification of acknowledgment in the presence
of the testatrix and the witnesses, does not affect the validity of the codicil. The new Civil Code does
not require that the signing of the testator, witnesses and notary should be accomplished in one
single act.
A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator
will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e.,
that the latter should avow to the certifying officer the authenticity of their signatures and the
voluntariness of their actions in executing the testamentary disposition. The subsequent signing and
sealing by the notary of his certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her witnesses cannot be said to violate
the rule that testaments should be completed without interruption. It is noteworthy that Article 806
of the new Civil Code does not contain words requiring that the testator and the witnesses should
acknowledge the testament on the same day or occasion that it was executed.
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Cruz v. Villasor
54 SCRA 752
FACTS:
The CFI of Cebu allowed the probate of Valente Z. Cruz’s last will and testament. His surviving
spouse, Agapita Cruz, opposed the allowance of the will alleging it was executed
through fraud, deceit, misrepresentation and undue influence; that the said instrument was
execute without the testator having been fully informed of the content thereof, particularly as to
what properties he was disposing and that the supposed last will and testament was not executed
in accordance with law. Agapita appealed the allowance of the will by certiorari.
ISSUE:
W/N the will was executed in accordance with law (particularly Articles 805 and 806 of the NCC,
the first requiring at least three crediblewitnesses to attest and subscribe to the will, and the
second requiring the testator and the witnesses to acknowledge the will before a notary public.).
HELD:
NO. Of the three instrumental witnesses to the will, one of them (Atty. Teves) is at the same time
the Notary Public before whom the will was supposed to have been acknowledged. 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.
To acknowledge before means to avow (Javellana v. Ledesma; Castro v. Castro); to own as
genuine, to assent, to admit; and “before” means in front or preceding in space or ahead
of. Consequently, if the third witness were the notary public himself, he would have to avow  Aided testator when she walked
assent, or admit his having signed the will in front of himself. This cannot be done because he  Deed was already prepared
cannot split his personality into two so that one will appear before the other to acknowledge his  Physician: testator had possible glaucoma (leads to blindness)
participation in the making of the will. To permit such a situation to obtain would be sanctioning  Would that grade enable patient to read print? “Apparently that is only a
a sheer absurdity. Furthermore, the function of a notary public is, among others, record for distance vision, for distance sight, not for print.”
to guard against any illegal or immoral arrangement (Balinon v. De Leon). That function would  She read the will silently
defeated if the notary public were one of the attesting instrumental witnesses. It would place him
 Done in haste and done without any regard for the defective vision
in inconsistent position and the very purpose of acknowledgment, which is to minimize  fraud,
 Upon its face, the testamentary provisions, the attestation clause and
would be thwarted.
acknowledgment were crammed together into a single sheet of paper, so
much so that the words had to be written very close to the top, bottom and
Admittedly, there are American precedents holding that notary public may, in addition, act as a two sides of the paper, leaving no margin
witness to the executive of the document he has notarized. There are others holding that his  The word “and” had to be written by the symbol “&”, apparently to save on
signing merely as notary in a will nonetheless makes him a witness thereon. But these space
authorities do not serve the purpose of the law in this jurisdiction or are not  decisive of the issue  Typographical errors like “HULINH” for “HULING” (last), “Alfonsa” for
herein because the notaries public and witnesses referred to in these cases merely acted as
“Alfonso”, “MERCRDRS” for MERCEDES”, “instrumental” for “Instrumental”,
instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. Here, the
notary public acted not only as attesting witness but also acknowledging witness, a situation not and “acknowledged” for “acknowledge”, remained unconnected
envisaged by Article 805-06. Probate of will set aside. 3. Consuelo S. Gonzales Vda. de Precilla, niece of Gliceria, petitioned for probate of the 1960 will, and
for her appointment as special administratrix
 Opposed separately by several groups of heirs, and among them were persons claiming to be
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 The oppositions invariably charged that the instrument executed in 1960 was not intended by
Article 807 the deceased to be her true will.
Article 808  Prayed the court for an order, directing the Special Administratrix to deposit with the Clerk of
Court all certificates of title belonging to the estate.
Garcia vs. Vasquez  It was alleged that after her appointment, Consuelo, in her capacity as special
administratrix filed a motion for the issuance of new copies of the owner’s
4 APRIL 30, 1970 duplicates of certain certificates of title in the name of Gliceria del Rosario,
supposedly needed by her “in the preparation of the inventory” of the properties
REYES, J.B.L., J.: constituting the estate.
 The motion having been granted, new copies of the owner’s duplicates of
certificates appearing the name of Gliceria del Rosario were issued.
 She presented to the Register of Deeds the deed of sale involving properties
supposedly executed by Gliceria del Rosario in 1961 in favor of Alfonso Precilla
FACTS: (her husband)
 And, in consequence, said certificates of title were cancelled and new certificates
1. Testator: Gliceria Avelino del Rosario were issued in the name of Alfonso
 Died unmarried  TC: Petition granted, and order premised on the fact the petitioner was managing the
 Left no descendents, ascendants, brother or sister properties belonging to the estate even during the lifetime of the deceased, and to appoint
 At the time of her death, she was said to be 90 years old more or less another person as administrator or co-administrator at that stage of the proceeding would
 Possessed of an estate consisting mostly of real properties only result in further confusion and difficulties.
2. 2 wills allegedly executed:
 1956 will
o 12 pages ISSUE: Was the will Gliceria’s true will, considering her eye defect? NO
o Written in Spanish (which she knew and spoke)
o 3 witnesses
o Acknowledged before the notary
 1960 will HELD:
o 1 page
o Tagalog
1. The testimony of the ophthalmologist who treated the deceased has first hand knowledge of the
o 3 witnesses actual condition of her eyesight.
o Acknowledged before the notary 2. Notwithstanding the operation and removal of the cataract in her left eye and her being fitted with
o Special administratix’ husband actively participated in execution aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and
 Requested people to witness not for reading print.
 Submitted the residence certificates to the notary, which he collected prior
3. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and
there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable
of reading, and could not have read the provisions of the will supposedly signed by her on 29
December 1960.
4. It is worth noting that the instrumental witnesses stated that she read the instrument “silently”
which is a conclusion and not a fact.
5. It is difficult to understand that so important a document containing the final disposition of one’s
worldly possessions should be embodied in an informal and untidily written instrument.
6. Or that the glaring spelling errors should have ‘escaped her notice if she had actually retained the
ability to read the purported will and had done so
7. That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend
to kitchen tasks shortly prior to the alleged execution of the testament Exhibit “D”, as appears from
the photographs, Exhibits “E” to “E-l”, in no way proves that she was able to read a closely typed
page, since the acts shown do not require vision at close range.
8. Neither is the signing of checks by her indicative of ability to see at normal reading distances.
9. Writing or signing of one’s name, when sufficiently practiced, becomes automatic, so that, one
need only to have a rough indication of the place where the signature is to be affixed in order to be
able to write it.
10. Thus, for all intents and purposes of the rules on probate, the deceased Gliceria del Rosario was, as
appellant oppositors contend, not unlike a blind testator, and the due execution of her will would
have required observance of the provisions of Article 808 of the Civil Code.
“ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged.”
11. The rationale behind the requirement of reading the will to the testator if he is blind or incapable
of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him,
so that he may be able to object if they are not in accordance with his wishes.
12. There is nothing in the records to show that the above requisites have been complied with.
13. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its
due execution.
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CASE DIGEST: GARCIA V. VASQUEZ (32 SCRA 489)
Published by paul on July 1, 2013 | Leave a response
Garcia v. Vasquez
32 SCRA 489
FACTS:
This is a petition for appeal from the CFI of Manila admitting to probate the will of Gliceria
Avelino del Rosario (“Gliceria”) executed in 1960. Likewise, this is also an appeal to remove the
current administrator, Consuelo Gonzales-Precilla( “Consuelo”) as special administratrix of
the estate on the ground of Consuelo possesses interest adverse to the estateand to order the RD
of Manila to annotate on the registered lands a notice of Lis Pendens.
When Gliceria died she had no descendants, ascendants, bros or sisses and 90 yrs old. After
which, her niece, Consuelo petitioned the court to be the administratrix of the properties. The
court approved this because Consuelo has been was already managing the properties of the
deceased during her lifetime. What the respondents allege is that in the last years of the
deceased, Consuelo sought the transfer of certain parcels of land valued at 300k for a sale price
of 30k to her husband Alfonso through fraud and intimidation. In addition, the oppositors
presented evidence that Consuelo asked the court to issue new Certificates of Titles to certain
parcels of land for the purpose of preparing the inventory to be used in the probate. Also shown
was that NEW TCTs were issued by the RD for certain lands of the deceased
after Consuelo asked for the old TCTs.
At the end of the probate proceedings, the court ruled that Counsuelo should be made
the administrator, and that the will was duly executed because of these reasons: NO EVIDENCE
HAS BEEN PRESENTED to establish that the deceased was not of sound mind, that eventough
the allegations state that the deceased prepared another will in 1956 (12pages), the latter is not
prevented from executing another will in 1960 (1page), and that inconsistencies in the
testimonies of the witnesses prove their truthfulness.
ISSUE:
Was the will in 1960 (1 page) duly/properly executed?
HELD:
NO. Provision of Article 808 mandatory. Therefore, For all intents and purposes of the rules on
probate, the testatrix was like a blind testator, and the due execution of her will would have
required observance of Article 808. The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will himself (as when he is illiterate) , is to
make the provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes. Likewise, the 1970 will was done in Tagalog which the deceased is
not well versed but in Spanish. This creates doubt as to the due execution of the will and as well
as the typographical errors contain therein which show the haste in preparing the 1 page will as
compared to the 12 page will created in 1956 written in Spanish. ALSO, as to the blindness, there
was proof given by the testimony of the doctor that the deceased could not read at near distances
because of cataracts. (Testatrix’s vision was mainly for viewing distant objects and not for
reading print.) Since there is no proof that it was read to the deceased twice, the will was NOT
duly executed.
ALSO, Consuelo should be removed as administrator because she is not expected to sue her own
husband to reconvey the lands to the estatealleged to have been transferred by the deceased to
her own husband.
The notice of lis pendens is also not proper where the issue is not an action in rem, affecting real
property or the title thereto.
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ALVARADO vs. GAVIOLA
September 14, 1993
FACTS: 
The testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the 8-paged document, read the same aloud in the
presence of the testator, the 3 instrumental witnesses and the notary public. The latter 4
followed the reading with their own respective copies previously furnished them.
            Said will was admitted to probate.  Later on, a codicil was executed, and by that time, the
testator was already suffering from glaucoma.  But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the testator did not personally read the final
draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in

the presence of the three instrumental witnesses (same as those of the notarial will) and the
notary public who followed the reading using their own copies.
ISSUE:
            Was there substantial compliance to the reading of the will?
HELD: 
Article 808 not only applies to blind testators, but also to those who, for
one reason or another, are incapable of reading their wills.  Hence, the will should
have been read by the notary public and an instrumental witness.   However, the spirit behind the
law was served though the letter was not.  In this case, there was substantial
compliance.  Substantial compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the execution of wills are intended to
protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege.
            In this case, private respondent read the testator's will and codicil aloud in the presence of
the testator, his three instrumental witnesses, and the notary public.  Prior and subsequent
thereto, the testator affirmed, upon being asked, that the contents read corresponded with his
instructions. Only then did the signing and acknowledgement take place.
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Article 809
Caneda v.
222 SCRA 781
FACTS:
On December 5, 1978, Mateo Caballero, a widower without any children and already in the
twilight years of his life, executed a last will and testament at his residence before 3 witnesses.
He was assisted by his lawyer, Atty. Emilio Lumontad.
In the will, it was declared that the testator was leaving by way of legacies and  devises his real
and personal properties to several people all of whom do not appear to be related to the testator.
4 months later, Mateo Caballero himself filed a case seeking the probate of his last will and
testament, but numerous postponements pushed back the initial hearing of the probate court
regarding the will.
On May 29, 1980, the testator passed away before his petition could finally be heard by the
probate court.
Thereafter one of the legatees, Benoni Cabrera, sought his appointment as
special administrator of the testator’s estate.
Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition for intestate proceedings. They also opposed the probate of the testator’s will and
the appointment of a special administrator for his estate.
Benoni Cabrera died and was replaced by William Cabrera as special administrator and gave an
order that the testate proceedings for the probate of the will had to be heard and resolved first.
In the course of the proceedings, petitioners opposed to the allowance of the testator’s will on the
ground that on the alleged date of its execution, the testator was already in poor state of health
such that he could not have possibly executed the same. Also the genuineness of the signature of
the testator is in doubt.
On the other hand, one of the attesting witnesses and the notary public testified that the testator
executed the will in question in their presence while he was of sound and disposing mind and
that the testator was in good health and was not unduly influenced in any way in the execution of
his will.
Probate court then rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero.
CA affirmed the probate court’s decision stating that it substantially complies with Article 805.
Hence this appeal.
ISSUE:
W/N the attestation clause in the will of the testator is fatally defective or can be cured under the
art. 809.
HELD:
CA
No. It does not comply with the provisions of the law.
Ordinary or attested wills are governed by Arts. 804 to 809. 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.
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.
The attestation clause, therefore, provides strong legal guaranties for the due execution of a will
and to insure the authenticity thereof.
It is contended by petitioners that the attestation clause in the will failed to specifically state the
fact that the attesting witnesses witnessed the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. And the Court agrees.
The attestation clause 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.
The phrase, “and he has signed the same and every page thereof, on the space provided for his
signature and on the left hand margin,” obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words” as his last will and testament.”
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. That 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 probated.
Also, Art. 809 does not apply to the present case because 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. The defect in this case is not only with respect to the form or the
language of the attestation clause. The defects must be remedied by intrinsic evidence supplied
by the will itself which is clearly lacking in this case.
Therefore, the probate of the will is set aside and the case for the intestate proceedings shall be
revived.
Article 809 cannot be used to cure the defects of the will when it does not pertain to the form or
language of the will. This is because there is not substantial compliance with Article 805.
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Article 810
Roxas vs De Jesus
Facts:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 case was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. He then delivered
to the lower court a document purporting to be the holographic Will of the deceased Bibiana
Roxas de Jesus. Judge Jose Colayco set the hearing of the probate of the holographic Win on
July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-will addressed to her children and entirely written and signed in the handwriting
of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is
my will which I want to be respected although it is not written by a lawyer.
testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus
and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother
They further testified that their deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the date when said Will was
executed by their mother
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing
the purported holographic Will of Bibiana R. de Jesus because (a) it was not executed in
accordance with law, (b) it was executed through force, intimidation and/or under duress, undue
influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not
intend, nor could have intended the said Will to be her last Will and testament at the time of its
execution.
August 24, 1973 - Judge Jose C. Colayco issued an order allowing the probate of the
holographic w/c he found to have been duly executed in accordance with law
Respondent Luz Roxas de Jesus filed a MR stating that the will was not dated as required by
Article 810 of the Civil Code. She contends that the law requires that the Will should contain the
day, month and year of its execution and that this should be strictly complied with.
December 10, 1973 – Judge disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and year.
ISSUE: WON the date "FEB./61” on the will is a valid compliance with the Article 810 of the Civil
Code
HELD: We agree with the petitioner.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the
Old Civil Code require the testator to state in his holographic Win the "year, month, and day of
its execution," the present Civil Code omitted the phrase Año mes y dia and simply requires that
the holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.
Respondent Luz Henson says the will is void for non-compliance with Article 810 of the New
Civil Code in that the date must contain the year, month, and day of its execution. The
respondent further contends that the petitioner cannot plead liberal construction of Article 810 of
the Civil Code because statutes prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.
RULING OF SC:
the prevailing policy is to require satisfaction of the legal requirements in order to guard against
fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege
If a Will has been executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted
to probate 
Court found no evidence of bad faith and fraud in its execution nor was there any substitution of
Wills and Testaments
As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith,
undue influence and pressure and the authenticity of the Will is established the Will should be
allowed under the principle of substantial compliance
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and
SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus is reinstated.
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Labrador vs CA
In the Matter of the Petition to Approve the Will Of Melecio Labrador, Sagrado Labrador et. al. vs. Court
of Appeals, Gaudencio Labrador, and Jesus Labrador
G.R Nos. 83843-44 April 5, 1990
FACTS:
The deceased, Melecio Labrador, left behind him a parcel of land which was partitioned among his nine
heirs through a holographic will.
Sagrado, therefore, one of his heirs, filed a petition for the probate of the alleged holographic will of the
late Melecio Labrador.
However, Jesus and Gaudencio, also heirs of the deceased, filed an opposition to the petition on the
ground that the will has been extinguished or revoked by implication of law alleging therein that before
Melecio’s death, he executed a Deed of Absolute Sale, selling, transferring and conveying in favor of
Jesus and Gaudencio the parcel of land.
The trial court allowed the probate of the holographic will and declared null and void the Deed of Sale.
Jesu and Gaudencio and appealed to the Court of Appeals which modified the decision of the trial court.
It denied the allowance of the probate of the will for being undated.
The aggrieved party, therefore, filed a petition to the Supreme Court alleging among others that the CA
erred in not allowing the probate proceeding withstanding the fact that in the first paragraph of the
second page of the alleged holographic will, which was written in Ilocano, the testator made mention a
date – “month of March, 17th, 1968.
ISSUE: Whether the holographic will is dated
HELD:
The Supreme Court ruled in the affirmative. The will has been dated in the hands of the testator himself
in perfect compliance Art. 810.
The law does not specify a particular location where the date must be placed in the will. The only
requirements are that the date be in the will itself and should be executed in the hand of the testator.
These requirements are present in the subject will. Hence, the probate proceeding should be allowed.
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Article 811
Azaola vs. Singson
Case Digest G.R. No. 14003 ; August 5, 1960 ; 109 Phil. 102
PRINCIPLE/S: Succession a) Article 811 of the Civil Code of the Philippines is MANDATORY only for
notarial wills Witness/es needs to presented for probate of notarial wills. Reason: Presence of at least
three witnesses at the execution of ordinary wills is made by law essential to their validity Number of
witnesses necessary: 1 – will has no contest At least 3 – will is contested c) Rule if there is no witness or
none of those produced is convincing Court may resort to handwriting experts - The law leaves it to the
trial court if experts are still needed d) Article 811 of the Civil Code of the Philippines is DISCRETIONARY
for holographic wills is not contested - Witness/es are may not be needed for probate of notarial wills if
the will is NOT CONTESTED Reason: The law does not require any witness to be present at the execution
of a holographic wil (Art. 810, new Civil Code). Hence, it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of the proponent. e) Article 811 of
the Civil Code of the Philippines is MANDATORY for holographic wills if it is CONTESTED Number of
witnesses necessary:
FACTS: Testator Yance died. Petitioner Francisco Azaola submitted for probate her holographic will, in
which Maria Azaola was made the sole heir as against the nephew, respondent Singson. Francisco
Azaola, was also the sole witness presented to testify on the handwriting of the testatrix. He testified
that he had seen the holographic will about one month before the death of the testatrix, as it was given
to him and his wife and that he recognized all the signatures appearing in the holographic will as the
handwriting of the testatrix. Francisco presented presented documents to reinforce his statement. The
probate was opposed. Subsequently, the probate was denied on the ground that under Article 811 of the
Civil Code the proponent must present three witnesses who could declare that the will and the signature
are in the writing of the testatrix, the probate being contested and because the lone witness presented
“did not prove sufficiently that the body of the will was written in the handwriting of the testatrix.”
Petitioner appealed, urging: first, that he was not bound to produce more than one witness because the
will’s authenticity was not questioned; and second, that Article 811 does not mandatorily require the
production of three witnesses to identify the handwriting and signature of a holographic will, even if its
authenticity should be denied by the adverse party.
ISSUE/S: WON Article 811 of the Civil Code is mandatory or permissive.
HELD: Permissive since the authenticity of the will was not contested, petitioner was not required to
produce more than one witness. But even if the genuineness of the holographic will were contested,
Article 811 can not be interpreted to require the compulsory presentation of three witnesses to identify
the handwriting of the testator in holographic wills. This is because no witness may have been present at
the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite qualifications is a matter beyond the
control of the proponent. As such, if there are no competent witness available, the court may resort to
expert evidence. The law leaves it to the trial court if experts are still needed. Hence, the rule requiring
production of three witnesses in holographic wills must be deemed merely permissive if absurd results
are to be avoided.
Considering, however, that this is the first occasion in which this Court has been called upon to construe
the import of said article, the interest of justice would be better served, in our opinion, by giving the
parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court
deem them necessary.
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Codoy v. Calugay
312 SCRA 333
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 6 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.
The fifth was an employee of the DENR who testified that she was familiar with the 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:
1. W/N 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 or directory.
2. Whether or not the witnesses sufficiently establish the authenticity and due execution of the
deceased’s holographic will.
HELD:
1. 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.
2. NO. We cannot be certain that the holographic will was in the handwriting of the deceased.
The clerk of court was not presented to declare explicitly that the signature appearing in the
holographic will was that of the deceased.
The election registrar was not able to produce the voter’s affidavit for verification as it was no
longer available.
The deceased’s niece saw pre-prepared receipts and letters of the deceased and did not declare
that she saw the deceased sign a document or write a note.
The will was not found in the personal belongings of the deceased but was in the possession of
the said niece, who kept the fact about the will from the children of the deceased, putting in issue
her motive.
Evangeline Calugay never declared that she saw the decreased write a note or sign a document.
The former lawyer of the deceased expressed doubts as to the authenticity of the signature in the
holographic will.
(As it appears in the foregoing, the three-witness requirement was not complied with.)
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.
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Federico Azaola v. Cesario Singson
G.R. No. L-14003; August 5, 1960
FACTS:
When Fortunata Vda de Yance died, Francisco Azaola filed a petition for the probate of the former’s will,
whereby Maria Milgaros Azaola was made the sole heir as against the nephew of the deceased Cesario
Singson. Francisco witnessed that one month before the death of the testator, the same was handed to him
and his wife.
The opposition to the probate was on the ground that (1) the execution of the will was procured by undue
and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did
not seriously intend the instrument to be her last will, and that the same was actually written either on the
5th or 6th day of August 1957and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent
must present three witnesses who could declare that the will and the signature are in the writing
of the testatrix, the probate being contested.
ISSUE/S:
1. WON the proponent was bound to produce more than one witness
2. WON 811 is mandatory
HELD:
1. No. Since the authenticity of the will was not being contested. But even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present Civil Code cannot
be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of
the testator, under penalty of having the probate denied. Since no witness may have been present at the
execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control
of the proponent.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is
contested and only one if no contest is had) was derived from the rule established for ordinary testaments.
But it cannot be ignored that the requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is
made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive
if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words “if the Court deem it
necessary”, which reveal that what the law deems essential is that the Court should be convinced of the
will’s authenticity. Where the prescribed number of witnesses is produced and the court is convinced by
their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of those produced is convincing, the Court may
still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the true intention of the
testator be carried into effect.
2. The rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not
mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to construe
the import of said article, the interest of justice would be better served, in our opinion, by giving the
parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court
deem them necessary.
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Rodelas v. Aranza, et al.
G.R. No. L-58509, December 7, 1982
FACTS:
Appellant Marcela Rodelas filed a petition for the probate of the holographic will of
Ricardo B. Bonilla presenting to the court a photostatic copy of said will as the original of the will
was lost. But appellees Amparo Aranza Bonilla, et al. opposed the petition asserting that it
should be the holographic will itself that must be produced in court and not an alleged copy
thereof. They anchored their opposition in the case of Gam v. Yap which declared that an
alleged copy of the holographic will, produces no legal effect.
The court rendered judgment in favor of appellees, Aranza, et al. and against
appellant Rodelas. Appellant filed a motion for reconsideration but the same was denied.
ISSUE:
Whether or not a photostatic copy or xerox copy of the holographic will of deceased
Ricardo B. Bonilla can be allowed for probate.
RULING:
Yes, a photostatic copy or xerox copy of a holographic of deceased Ricardo B. Bonilla
may be allowed for probate.
Article 811 of the Civil Code states that probate of holographic wills is the allowance of
the will by the court after its due execution had been proved. If the holographic will has been lost
or destroyed and no other copy is available, the will cannot be probated. Because the
handwriting of the testator in the said will is regarded as the “best and only evidence.” It is,
therefore, necessary that there be a comparison between sample handwritten statements of the
testator and the handwritten will.
In the case of Gam v. Yap, it was held that the will itself must be presented, otherwise,
it will produce no effect. The law regards the document itself as material proof of authenticity.
But a footnote of said decision provides that “perhaps it may be proved by a photographic or
photostatic copy, even a mimeographed or carbon copy, or by other similar means whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court”. Hence, a photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator.
Therefore, in the instant case, the photostatic copy of the holographic will of the
deceased Ricardo B. Bonilla which was presented by appellant Marcela Rodelas may be
admitted for probate because the authenticity of the deceased’s handwriting can be determined
by the probate court.
WHEREFORE, the order of the lower court denying appellant’s motion for
reconsideration dismissing her petition to approve the will of the late Ricardo B. Bonilla, is
hereby set aside.
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Kalaw v. Relova
132 SCRA 237

FACTS:

On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his deceased sister,
Natividad Kalaw, filed a petition for the probate of her holographic Will executed on December
24, 1968.

The holographic Will, as first written, named Rosa Kalaw, a sister of the testatrix as her sole heir.
She opposed probate alleging that the holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full signature of the testatrix as required by
Article 814 of the Civil Code reading: Art. 814. In case of any insertion, cancellation, erasure
or alteration in a holographic will the testator must authenticate the same by his full signature.

ROSA’s position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.

Trial Court denied petition to probate the holographic will. Reconsideration denied.

ISSUE:

W/N the original unaltered text after subsequent alterations and insertions were voided by the
Trial Court for lack of authentication by the full signature of the testatrix, should be probated or
not, with Rosa as sole heir.

HELD:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a

holographic Will litem not been noted under his signature, … the Will is not thereby invalidated
as a whole, but at most only as respects the particular words erased, corrected or interlined.

However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but
which alteration did not carry the requisite of full authentication by the full signature of the
testator, the effect must be that the entire Will is voided or revoked for the simple reason that
nothing remains in the Will after that which could remain valid. To state that the Will as first
written should be given efficacy is to disregard the seeming change of mind of the testatrix. But
that change of mind can neither be given effect because she failed to authenticate it in the
manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures

or alterations in a holographic Will, which affect only the efficacy of the altered words
themselves but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be
determined with certitude.