Nenita de Vera SUROZA vs. Judge Reynaldo P. HONRADO and Evangeline YUIPCO A.M. No.

2026-CFI, December 19, 1981 Mauro Suroza, a corporal in the 45th Infantry of the US Army (Philippine Scouts) married M arcelina Salvador but they were childless. However, they reared a boy named Agapito who used the surname Suroza and who considred them as parents as shown in his marriage contract with Nenita de Vera. When Mauro died, Marcelina, as a veterans widow, became a pensioner of the Federal Government. Agapito and Nenita begot a child named Lilia and afterwards, Aga pito also became a soldier. However, he was disabled and his wife was appointed as his guardian when he was declared an incompetent. In connection to this, a woman named Arsenia de la Cruz (apparently a girlfriend of Agapito) wanted also to be his guardian however the court confirmed Nenitas appointment as guardian of Agapito. The spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who was delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter. Marilyn used the surname Suroza and stayed with Marcelina but was not legally adopted by Agapito. Marcelina, being a veterans widow accumulated some cash in two banks. She executed a not

arial will which is in English and was thumbmarked by her for she was illiterate. In that will, Marc elina bequeathed all her estate to Marilyn. After her death, Marina Paje (alleged to be a laundrywoman of Marcelina and the executrix in her will) filed a petition for probate of Marceli nas alleged will. As there was no opposition, Judge Honrado appointed Marina as administrati

x and subsequently, issued two orders directing the two banks to allow Marina to withdraw from the savings of Marcelina and Marilyn Suroza and requiring the custodian of the passbooks to deliver them to Marina. Upon motion of Marina, Judge Honrado issued another order instructing the sheriff to eject the occupants of the testatrix house among whom was Nenita and to

place Marina in possession thereof. Nenita was then alerted to the existence of the testamentary proceeding hence, she and other occupants filed a motion to set aside the order ejecting them, alleging that the decedents son Agapito was the sole heir of the deceased; that he has a daughter named Lilia; that Nenita was Agapitos guardian; and that Marilyn was not Agapitos daughter nor the decedents ejectment or supposed will

granddaughter. Later, they questioned the probate courts jurisdiction to issue the der. In spite of such fact, Judge Honrado issued on order probating Marcelinas

wherein Marilyn was the instituted heiress. Nenita filed in the testate case an omnibus petition to set aside proceedings, admit opposition with counter petition for administration and

preliminary injunction reiterating that Marilyn was a stranger to

Marcelina; that the will was not

duly executed and attested; and that the thumbmarks of the testatrix were procured by fraud or trick. Further, that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified to act as executrix. Not contented with her motions, Nenita filed an opposition to the probate of the will and a counter-petition which was however, dismissed. Instead of appealing, Nenita filed a case to annul the probate proceedings which was also dismissed. Hence, this complaint. Whether or not a disciplinary action should be taken against respondent judge for having admitted a will, which on its face is void. Disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedents legal heirs and not the instituted heiress in the void will should have inherited the decedents estate. Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service. In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void. Payad vs. Tolentino G.R. No. 42258. January 15, 1936 Victorio Payad filed a petition for the probate of the will of the decedent Leoncia Tolentino. This was opposed by Aquilina Tolentino, averring that said Will was made only after the death of the testatrix. The lower court denied the probate of the will on the ground that the attestation

clause was not in conformity with the requirements of the law since it was not stated therein
that the testatrix caused Atty. Almario to write her name at her express direction. Hence, this petition. Was it necessary that the attestation clause state that the testatrix caused Atty. Almario to write her name at her express direction? 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. A statute requiring a will to be signed is satisfied if the signature is made by the testators mark. (Quoted by this court from 28 R. C. L., p. 117; De Gala vs.

Gonzales and Ona, 53 Phil., 104, 108.) 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. Source: http://jayandes.blogspot.com/2011/06/payad-vs-tolentino-gr-no-42258-january.

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In the Matter of the Will of Antero Mercado, deceased, Rosario GARCIA, vs. Juliana LACUESTA, et al G.R. No. L-4067, November 29, 1951 A will was executed by Antero Mercado wherein it appears that it was signed by Atty. Florentino Javiwe who wrote the name of Antero. The testator was alleged to have written a cross immediately after his name. The Court of First Instance found that the will was valid but the Court of Appeals reversed the lower courts decision holding that the attestation clause failed: 1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; 2) to certify that after the signing of the name of the testator by Atty. Javier at the formers request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof 3) to certify that the witnesses signed the will in all the pages thereon in the presence of the testator and of each other. Hence, this appeal. Whether or not the attestation clause is valid. The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Javier to write the testators name under his express direction, as required by section 168 of the Code of Civil Procedure. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, the SC is not prepared to liken the mere sign of the cross to a thumbmark and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark. Barut vs. Cabacungan, G.R. L-6825 Febriary 15, 1912 Pedro Barut applied for the probate of the will of Maria Salomon. It is alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907. The said will was witnessed by 3 persons. From the terms it appears that the petitioner received a larger part of decedents property. After this disposition, the testatrix revoked all other wills and stated that since she is unable to read nor write, the will was read to her and that she has instructed Se verino Agapan, one of the witnesses to sign her name in her behalf. The lower court ruled that the will is not entitled to probate on the sole ground that the

handwriting of the person who signed the name of the testatrix does not appear to be that of Ag apan but that of another witness. Whether or not a wills validity is affected when the person instructed by a testator to write his name did not sign his name No, it is immaterial who wrote the name of the testator provided it is written at her request and in her present, and in the presence of the witnesses. This is the only requirement under Sec. 618 of the Civil Code of procedure at that time. Icasiano v. Icasiano, 11 SCRA 422 | Dela Cuesta Celso Icasiano filed a petition for the allowance and admission to probate of the alleged will of J osefa Villacorte, and for his appointment as executor thereof. Natividad and Enrique Icasiano, a daughter and son of the testatrix, filed their opposition thereto. During the course of the trial, on 19 March 1959, Celso, started to present his evidence. But later, on 1 June 1959, he then filed an amended and supplemental petition, alleging that the decedent had left a will executed in duplicate and with all the legal requirements, and that he was submitting the duplicate to the court, which he found only on 26 May 1959. Natividad and Enrique filed their opposition, but the will and its duplicate was admitted to probate by the trial court. Hence, this appeal by the opposi tors. Oppositors-appellants (Natividad and Enrique) in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate are not genuine, nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents- appellees stand to profit from properties held by them as attorneys- in-fact of the deceased and not enumerated or mentioned therein, while oppositors-a ppellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal. Was the trial court correct in admitting the will and its duplicate to probate given the allegations of forgery of the testators signature, or that the will was executed under circumstances constituting fraud and undue influence and pressure? (Not raised by the appellants in the case but discussed by the Court and in Sirs book) Is the failure of one of the witnesses to sign a page of the will fatal to its validity? The Supreme Court dismissed the appeal, holding that both the will and its duplicate are valid in

all respects. On the allegations of forgery, fraud and undue influence: The Court is satisfied that all the requisites for the validity of a will have been complied with. The opinion of a handwriting expert trying to prove forgery of the testatrixs signature failed to convince the Court, not only because it is directly contradicted by another expert but principally because of the paucity of the standards used by him (only three other signatures), considering the advanced age of the testatrix, the evident variability of her signature, and the effect of writing fatigue. Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering that standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, the testimony of the oppositors expert is insufficient to overcome that of the notary and the two execution, which were presented by Celso during the

instrumental witnesses as to the wills

trial. Nor is there adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither. Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary disposition that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part, do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non- heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occasion. It is also well to note that fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will. Abangan v. Abangan, 40 Phil 476, AVANCENA On September 19, 1917, CFI of Cebu admitted to probate Ana Abangans 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 testators last will, must be disregarded. Testate Estate of Cagro vs. Cagro, G.R. L-5826 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. 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. 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.

Whether or not the will is valid 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. Source: http://lawsandfound.blogspot.com/2013/01/cagro-v-cagro-digest.html Nera v. Rimando , G.R. L-5971 February 27, 1911 (Test of Presence) 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. 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. G ustillo 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. The CA deemed the will valid. Whether or not the subscribing witness was able to see the testator and other witnesses in the act of affixing their signatures. 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. Source: http://lawsandfound.blogspot.com/2013/01/nera-v-rimando-digest.html Cruz v. Villasor, G.R. L-32213 November 26, 1973 The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument was executed without the testator having been informed of its contents and finally, that it was not executed in accordance with law. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged. Despite the objection, the lower court admitted the will to probate on the ground that there is substantial compliance with the legal requirements of having at least 3 witnesses even if the notary public was one of them. Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC No. The will is not valid. The notary public cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as witness at the same time. To acknowledge before means to avow, or to own as genuine, to assent, admit, and before means in front of or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear before the other to acknowledge his participation int he making of the will. To permit such situation would be absurd. Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud. Source: http://lawsandfound.blogspot.com/2013/01/cruz-v-villasor-digest.html Javellana vs. Ledesma, G.R. No. L-7179 The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Led esma in July 1953. This testament was deemed executed on May 1950 and May 1952. The contestant was the sister and nearest surviving relative of the deceased. She appealed from this decision alleging that the will were not executed in accordance with law. The testament was executed at the house of the testatrix. One the other hand, the codicil was executed after the enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a notary public. Now, the contestant, who happens to be one of the instrumental witnesses asserted that after the codicil was signed and attested at the San Pablo

hospital, that Gimotea (the notary) signed and sealed it on the same occasion. Gimotea, however, said that he did not do so, and that the act of signing and sealing was done afterwards. One of the allegations was that the certificate of acknowledgement to the codicil was signed somewhere else or in the office of the notary. The ix and the witnesses at the hospital, was signed and sealed by the notary only when he brought it in his office. Whether or not the signing and sealing of the will or codicil in the absence of the testator and witnesses affects the validity of the will No. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the testator, the witnesses and the notary be accomplished in one single act. All that is required is that every will must be acknowledged before a notary public by the testator and witnesses. The subsequent signing and sealing is not part of the acknowledgement itself nor of the testamentary act. Their separate execution out of the presence of the testator and the witnesses cannot be a violation of the rule that testaments should be completed without interruption. Source: http://lawsandfound.blogspot.com/2013/02/javellana-v-ledesma-digest.html Garcia v. Vasquez, G.R. No. L-26808 March 28, 1969 Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language she knew an spoke. The other will was executed in December 1960 consisting of only one page, and written in Tagalog. The witnesses to the 1960 will declared that the will was first read silently by the testatrix before signing it. The probate court admitted the will. The oppositors alleged that the as of December 1960, the eyesight of the deceased was so poor and defective that she could not have read the provisions contrary to the testimony of the witnesses. Whether or not the will is valid The will is not valid. If the testator is blind, Art. 808 of the New Civil Code (NCC) should apply.If t he testator is blind or incapable of reading, he must be apprised of the contents of the will for him to be able to have the opportunityto object if the provisions therein are not in accordance with his wishes. The testimony of her opthalmologist established that notwithstanding an operation to remove her cataract and being fitted with the lenses, this did not improve her vision. Her vision remained mainly for viewing distant objects and not for reading. There was no evidence that her vision improved at the time of the execution of the 2nd will. Hence, she was incapable of reading her own will. The admission of the will to probate is therefor erroneous. Source: http://lawsandfound.blogspot.com/2013/02/garcia-v-vasquez-digest.html Alvarado v. Gaviola, 226 SCRA 347 | JEN SUCCESSION REVIEWER On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will entitled Huling Ha

bilin wherein he disinherited an illegitimate son, petitioner Cesar Alvarado, and expressly revoked a previously executed holographic will at the time awaiting probate before the RTC of Laguna. According to Bayani Ma. Rino, private respondent, he was present when the said notarial will was executed, together with three instrumental witnesses and the notary public, where the testator did not read the will himself, suffering as he did from glaucoma. Rino, a lawyer, drafted the eight-page document and read the same aloud before the testator, the three instrumental witnesses and the notary public, the latter four following the reading with their own respective copies previously furnished them. Thereafter, a codicil entitled Kasulatan ng Pagbabago ng Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado was executed changing some dispositions in the notarial will to generate cash for the testators eye operation. Said codicil was likewise not read by Brigido Alvarado and was read in the same manner as with the previously executed will. When the notarial will was submitted to the court for probate, Cesar Alvarado filed his opposition as he said that the will was not executed and attested as required by law; that the testator was insane or mentally incapacitated due to senility and old age; that the will was executed under duress, or influence of fear or threats; that it was procured by undue pressure and influence on the part of the beneficiary; and that the signature of the testator was procured by fraud or trick. Whether or not notarial will of Brigido Alvarado should be admitted to probate despite allegations of defects in the execution and attestation thereof as testator was allegedly blind at the time of execution and the double-reading requirement under Art. 808 of the NCC was not complied with. YES. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testators will. Cesar Alvardo was

correct in asserting that his father was not totally blind (of counting fingers at 3 feet) when the will and codicil were executed, but he can be so considered for purposes of Art. 808. That Art. 808 was not followed strictly is beyond cavil. However, in the case at bar, there was substantial compliance where the purpose of the law has been satisfied: that of making the provisions known to the testator who is blind or incapable of reading the will himself (as when he is illiterate) and enabling him to object if they do not accord with his wishes. Rino read the testators 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 acknowledgment take place. There is no evidence that the contents of the will and the codicil were not sufficiently made known and communicated to the testator. With four persons, mostly known to the testator, following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him were the terms actually appearing on the typewritten documents. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will to 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. Although there should be strict compliance with the substantial requirements of law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testators will. Tedoro CANEDA, et al.petitioners vs. Hon. COURT OF APPEALS and William CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents. 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. 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. Whether or not the attestation clause complies with the substantial compliance pursuant to Article 809 of the Civil Code. An attestation clause refers to that part of an ordinary will whereby the attesting witnesses 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: The number of pages used upon which the will is written; That the testator signed, or expressly cause another to sign, the will and every page thereof in the presence of the attesting witnesses; and 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. 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. 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. Source: UNIVERSITY OF THE CORDILLERAS COLLEGE OF LAW, WILLS AND SUCCESSION, CASE DIGEST Danilo ALUAD, et al., petitioners vs. Zenaido ALUAD, respondent G.R. No. 176943, October 17, 2008 Petitioners mother, Maria Aluad and respondent Zenaido Aluad were raised by the childless spouses Matilde and Crispin Aluad. Crispin was the owner of six lots of Pilar Cadastre, Capiz. After his death, Matilde adjudicated the lots to herself and thereafter, she executed a Deed of Donation of Real Property Inter Vivos in favor of Maria covering all the six lots. The Deed provided that such will become effective upon the death of the Donor, but in the event that the D onee should die before the Donor, the present donation shall be deemed rescinded. Provided, however, that anytime during the lifetime of the Donor or anyone of them who should survive, they could use, encumber or even dispose of any or even all of the parcels of the land. Matilde sold one of the lots to Zenaido and subsequently, Matilde executed a last will and testament devising four (4) of the lots to Maria and the remaining lot to Zenaido. Maria died a few months after Matildes death. Thereafter, Marias heirs (herein petitioners) filed before the

RTC a complaint for declaration and recovery of ownership and possession of the two lots

conveyed and donated to Zenaido, alleging that no rights have been transmitted to the latter because such lots have been previously alienated to them to Maria via the Deed of Donation. The lower court decided in favor of the petitioners however, CA reversed said decision upon appeal of Zenaido which held that the Deed of Donation was actually a donation mortis causa, not inter vivos and as such it had to, but did not, comply with the formalities of a will. Due to the denial of the petitioners Motion for Reconsideration, the present Petition for Review has been filed. Whether or not the Deed of Donation is donation inter vivos and whether or not such deed is valid. If so, whether or not Matilde Aluad has the right to convey the lots in question to Zenaido Aluad. The Court finds the donation to Maria Aluad (petitioners mother) one of mortis causa, it having the following characteristics: It conveys no title or ownership to the transferee before the death of the transferor, or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; That before the death of the transferor, the transfer should be revocable, by the transferor at will, ad nutum, but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and That the transfer should be void of the transferor should survive the transferee. The phrase in the earlier-qouted Deed of Donation to become effective upon the death of the DONOR admits of no other interpretation than to mean that Matilde did not intend to transfer

the ownership of the six lots to petitioners mother during the formers lifetime. Further the statement, anytime during the lifetime of the DONOR or anyone of them who should survive, they could use, encumber or even dispose of any or even all the parcels of land herein donated, means that Matilde retained ownership of the lots and reserved in her the right to dispose them. For the right to dispose of a thing without other limitations than those established by law is an attribute of ownership. The phrase, anyone of them who should survive is out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of the donor, hence, said phrase could only have referred to the donor. The donation being then mortis causa, the formalities of a will should have been observed but they were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code. It is void and transmitted no right to petitioners mother. But even assuming rguendo that the formalities were observed, since it was not probated, no right to the two lots was transmitted to Maria. Matilde thus validly disposed the lot to Zenaido by her last will and a

testament, subject to the qualification that her will must be probated. With respect to the conveyed lot, the same had been validly sold by Matilde to Zenaido.