Will consisted of 2 pages 3 witnesses signed of left hand margin of both pages of the will, BUT not at the bottom of the attestation clause Probate petition only adverted to 2 heirs (petitioner and Irene Igsolo, who resided abroad) Opposed by Geralda Castillo as atty-in-fact of the 12 legitimate heirs o Not attested in accordance with law: decedents signature did not appear on the second page of will will was not properly acknowledged RTC admitted probate CA reversed: attestation clause failed to state the number of pages used in the will
1. As to statement of number of pages: Petitioner: Art. 805 merely directory, not mandatory. Susceptible to substantial compliance rule Court: No, it is mandatory. . If the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty (BASIS: to prevent tampering) Petitioner: cites Singson v. Florentino and Taboada v. Hon. Rosal, wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Singson: relax the application of rules (technicalities) since the body of the will contains a statement that it is composed of eight pages Taboada: the acknowledgment itself states that "this Last Will and Testament consists of two pages including this page"
2. Court further held: Not validly attested to by the instrumental witnesses.
a. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. Left hand signature: witnesses are aware that the page they are signing forms part of the will Attestation: witnesses are referring to the statements contained in the attestation clause itself
b. Not acknowledged o The notary public who notarized the subject will wrote, Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila. o By no manner of contemplation can these words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. o A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public. o The express requirement of Art. 806 is that the will be acknowledged, and not merely subscribed and sworn to. o Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It 2 also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will.
3 Art. 805: Lee v. Tambago Charged Atty. Tambago of violation of the Notarial Law and ethics of the legal profession for notarizing a spurious last will and testament o Father never executed will (bequeath property to wife and half siblings of complainant) o Sig of testator not same as sig as donor in deed of donation o Signatures of 2 witness were forged o Residence cert in acknowledgement of will -> expired o Notation of the residence certs of witnesses were absent o No copy of such purported will was on file with NCCA Court referred case to IBP; IBP respondent guilty
Court: will is void
o Follow formalities to close door on BF and fraud, avoid substitution of wills and testaments and guarantee truth and authenticity o Requirement: subscribed at the end thereof by the testator himself. attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. o The will in question was attested by only two witnesses, on this circumstance alone, the will must be considered void.
o Also, must be acknowledged. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed. The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be done. o This requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses in the acknowledgment. Similarly, the notation of the testators old residence certificate in the same acknowledgment was a clear breach of the law. (Residence cert: to establish true and correct identity of person) will viewed as delicate
o However, respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was not a cause for disciplinary action. Penalty: suspension of 1 year, disqualified as NP
4 Art. 806: Payad v. Tolentino Leoncia Tolentino executed a will. The trial court denied the probate: attestation clause was not in conformity with the requirements of law in that not stated therein that the testatrix caused Atty. Almario to write her name at her express direction. Payad: attestation clause does not state that Leoncia requested Atty. Almario to write her name The evidence on record established that Leoncia, assisted by Atty. Almaria, placed her thumbmark on each and every page of the will and that Atty. Almaria merely wrote Leoncias name to indicate where she placed the thumbmark. Atty. Almaria did not sign for the testatrix.
[Authors note: just based on the last paragraph of the will, it seems that there was a request to have Atty. Almaria write Leoncias name and Leoncia signed it with her thumbmark.] In attesting to the truth of the contents of this will, I signed this will with my thumb mark because I cannot affix my signature because of my physical condition. I requested Attorney Almario to place my name on the will where I have to place my thumb mark.
She signed for 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 testator's mark." 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 testratrix signed the will in question in accordance with law. 5 Art. 806: Matias v. Salud Doc: 3 pages Lower half of 2 nd page: signature Gabina Raquel (testator) admitted as to authenticity with thumbmark 3 rd page, end of attestation clause: signatures appearing on the left margin Upper page of each page: violent ink smudge (thumbmark) with words Gabina Raquel and underneath said name by Lourdes Samonte. The testamentary capacity of the deceased, her mastery of the Spanish language (the language in which the document is drawn) and that she could sign her name are undisputed. How the will was made: the deceased instructed Atty. Agbunag to draft her will brought to her sala with witnesses will was read by Atty. Agbunag Gabina thumbmarked foot of document and left margin of each page Atty. Agbunag insisted she sign but only able to do so on the 2 nd page of doc because she dropped pen in pain because of her disease Atty. Agbunag instructed Lourdes to write Gabina Raquel by Lourdes Samonte next to each thumbmark Niece opposed probate: that the attestation clause did not state that the testatrix and witnesses signed each and every page of the will; and while the left margins of each page exhibit the words Gabina Raquel by Lourdes Samonte, the attestation does not express that Lourdes was expressly directed to sign for the testatrix ISSUE: WON the attestation clause should state that the testator causes some other person to write his name, despite having placed her thumbmark on the pages of the will? NO, a thumbark is considered a signature.
Court: Thumbmark by testator satisfies the legal requisite that the will should be signed by him/her
Opposition: thumbmark does not show distinct identifying ridge line attestation clause is defective because it fails to state that Lourdes Samonte signed for the testator (used Garcia v Lacuesta: cross as signature) Court: the court differentiated that case to this in saying that the reason for Gabinas inability to sign was sufficiently explained, while the previous case did not show why the testator signed merely with an X which was not his normal signature. Court held that as held in previous cases, the legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other mark affixed by him 1 and that where such mark is affixed by the decedent, it is unnecessary to state in the attestation clause that another person wrote the testators name at his request 2 .
1 De Gala v. Ona, Dolor v. Diancin, Neyra v. Neyra, Lopez v. Liboro, 2 Payad v. Tolentino 6 Art. 806: Garcia v. Lacuesta Will of Antero Mercado written in Ilocano Appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by A ruego del testador and the name of Florentino Javier.Antero Mercado is alleged to have written a cross immediately after his name.
Court: attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testators name under 618 of Code of Civil Procedure.
Argument however: no need for such recital because the cross written by the testator after his name is sufficient signature and the sig of Atty. Florentino Javier is a surplusage. Pets theory: cross is as much a sig as a thumbmark
Court: NOT PERSUADED to liken the mere sign of a cross to a thumbmark. The cross cannot and does not have the trustworthiness of a thumbmark.
Thus, unnecessary to determine WON there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other
Sir: cross not = to thumbmark UNLESS it is the testators usual manner of sig or one of his usual styles of signing
Attestation clause: We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.
7 Art. 806: Barut v. Cabacungan Pedro Barut applied for the probate of the last will and testament of decedent Maria Salomon. He received large part of estate After disposing of her property, the testatrix revoked all former wills made by her. stated in said will that being unable to read or write, read to her by Ciriaco Concepcion and Timotea Inoselda 4 witnesses, including Agayan that she had instructed Severo Agayan to sign her name to it as testratrix. opposed by relatives of decedent. PROBATE COURT: INVALID. 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 w ill than that of the person whose handwriting it was alleged to be. [In short, as inferred by SC, probate court held the will invalid because the agent (Severo) who signed for the testator (Maria) did not sign his own name] WON sig of agent is essential to validity of will? NO, the essential thing, for validity of a will, is that the agent write the testators name.
The IMPORTANT THING is that it clearly appears that the 1) name of the testatrix was signed 2) at her express direction 3) in the presence of three witnesses and that 4) they attested and subscribed it in her presence and in the presence of each other. o May be wise as a practical matter that the one who signs the testator's name signs also his own; but that it is not essential to the validity of the will. The cases cited (Ex parte Santiago, Ex parteArcenas, and Guison vs. Concepcion) which allegedly are in opposition of above-mentioned doctrine are not applicable in this case. Those cases refer to a situation where the Court held as invalid a will where the agent wrote his OWN name such that the signature of the testator is not in the will. o Testators name never appeared attached as one who executed the will
8 Art. 806: Nera v. Rimando when doubts arose as to the location of one of the subscribing witnesses, Javellana, during the execution of said will. whether Javellana was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or, on the other hand, whether at that time, he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument. TC: not vital. the doctrine laid down in the case of Jaboneta vs. Gustilo, the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will.
WON such fact is material (YES) WON Javellana was inside the room (YES)
Court: Had Javellana been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been cause to invalidate the will. This is because the attaching of those signatures under the circumstances was not done in his presence o Javellanas line of vision to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one at the moment of inscription of each signature. Jaboneta vs. Gustilo: The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. While this does not mean that proof need be shown that the parties eyes were actually cast upon the paper at the moment of its subscription by each of them, it is still necessary that at that moment, existing conditions and their position with relation to each other were such that by merely choosing to cast their eyes in the proper direction they could have seen each other sign. the testator and the subscribing witnesses may not be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence discloses that at the moment when Javellana signed the document, he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so.
9 Art. 806: Icasiano v. Icasiano Petitioner: Josefa died in Manila on Sept. 12, 1958 and that on June 2, 1956, she executed a last will and testament in duplicate published before and attested by three witnesses: Atty. Justo P. Torres Jr., Atty. Jose V. Natividad and Mr. Vinicio B. Diy. the original will was five pages long and signed at the end and in every page EXCEPT on page 3, which was missing the signature of Atty. Natividad. The duplicate however had signatures of the testator and the three witnesses on all pages.
WON the failure of one witness to sign one page of the will was enough justification for denial of probate? NO
The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Pure oversight is shown by his own testimony as well as by the duplicate copy of the will which bears a complete set of signatures in every page The text of the attestation clause and the acknowledgement before the Notary Public likewise evidence that no one was aware of the defect at the time. Basis: guard against fraud and BF but without undue or unnecessary curtailment of the testamentary privilege
CONTENTION: original of the will is in existence and available, duplicate not entitled to probate COURT: appellants run into a dilemma o If orig is defective and invalid: in law there is no other will but the duly signed carbon duplicate and the same is probatable o If orig is valid and can be probated, then the ojjection to the signed uplicate need not be considered o At any rate, said duplicate serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional
Art. 806: Cagro v. Cagro One party: Attestation clause is not signed by the attesting witnesses Other party: signatures of the 3 witness 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 10 Court: 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 sgnatures. 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
One Party: sig on left hand conform substantially to the law Court: 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 not signed by the 3 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 I the absence of the testator and any of the witnesses
Dissent: J Bautista Angelo substantially complied with the formalities of the law and should be admitted to probate 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. This objection is too technical to be entertained. The fear entertained by the majority that it may have been only added on a subsequent occasion and not at the signing of the will has been obviated by the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed.
11 Art. 806: Javellana v. Ledesma Instrumental witnesses asserted that after the codicil had been signed by the testatrix and the witnesses at San Pablo Hospital, the same was signed and sealed y the NP Gimotea on the same occasion Gimotea affirmed that he did not do so but brought the codicil to his office and signed and sealed it there.
Court: WON the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses does not affect the validity of the codicil NCC does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. 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 acknowledgement itself nor of the testamentary act. Hence, their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption. Art. 806 of CC 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.
12 Art. 806: Cruz v. Villasor FACTS: There were 3 instrumental witnesses to the last will of Valente Cruz, namely: Deogracias Jamaoas, Jr, Dr. Francisco Penares and Atty. Angel Teves (also the notary public before whom the will was acknowledged) Petitioner (heirs of Cruz): In effect, there were only 2 witnesses who appeared before the notary public, thus did not meet the requirement under Arts. 805 and 806 Respondent (executor of will): Substantial compliance (of having at least 3 witnesses even if the NP acted as one of them) which is permitted citing American Jurisprudence 3
ISSUE: WON the notary public may be counted as one of the attesting witnesses. NO. Court: NOT EXECUTED IN ACCORDANCE WITH LAW. The notary public before whom the will was acknowledged cannot be considered as the 3 rd instrumental witness since he cannot acknowledge before himself. This cannot be done because he cannot split his personality into 2 so that 1 will appear before the other to acknowledge his participation in the making of the will. Sheer absurdity.
Statutory construction Language
To acknowledge to avow, 4 to own as genuine, to assent, to admit 5
Before in front or preceding in space or ahead of 6
Intent of the law
The function of notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public were 1 of the attesting or instrumental witnesses for he would be interested in sustaining the validity of his own act. Amjur is N/A here
Admittedly, there are American precedents supporting the respondents view. But these authorities do not serve the purpose of the law in this jurisdiction, because notaries public and witnesses referred to in the American cases merely acted as instrumental, subscribing or attesting witnesses, and NOT as acknowledging witnesses. Here, the notary public acted not only as attesting witness but also as acknowledging witness, a situation not envisaged by Art. 806 CC: xx acknowledged before a notary public by the testator and the witnesses. xx
Art. 806: Guerrero v. Bihis
3 It is said that there are practical reasons for upholding a will as against the purely technical reason that 1 of the witnesses required by law signed as certifying to an acknowledgement of the testators signature under oath rather than as attesting the execution of the instrument. 4 Javellana v. Ledesma 5 Webster Dictionary 6 Id 13 GUERRERO v. BIHIS G.R. No. 174144 April 17, 2007 Corona petitioners Bella A. Guerrero respondents Resurreccion A. Bihis summary Bella filed for probate, Recy opposed. Apparently, testator & witnesses acknowledged the will before the notary public of Caloocan City inside her residence in Quezon City. Held: Notary lacked authority to take the acknowledgement outside his place of commission. Hence, the will is void. 14
facts of the case Felisa Tamio de Buenaventura, the mother of the 2 parties, died. Bella (older sister) filed a petition for the probate of the decedents will, alleging that she was named executrix in the said will, and that she was legally qualified to act as such. Resurreccion (Recy for brevity, not real nickname), opposed the petition on the ff grounds: (1) The will was not executed and attested as required by law; (2) Its attestation clause & acknowledgement did not comply with the reqs of the law; (3) The siggie of decedent was procured by fraud and Bella & her children procured the will through undue and improper pressure & influence. The RTC appointed Bella as special administratix. In a resolution, the RTC denied the probate of the will, ruling that Art. 806 CC was not complied with because the will was acknowledged by the testatrix & the witnesses at the testatrixs residence at 40 Kanlaon St., QC before Atty. Macario O. Directo, who was a commissioned notary public for and in Caloocan City.
issue WoN the will acknowledged by the testatrix & the instrumental witnesses before a notary public acting outside the place of his commission satisfy the req under Art. 806. NO.
ratio Art. 806 states one of the formalities required by law in connection with the execution of a notarial will. This req is one of the indispensable requisites for the validity of the will. If this is not complied with, the will is void and cannot be accepted for probate.
Acknowledgement act of one who has executed a deed in going before some competent officer and declaring it to be his act or deed. The acknowledgement of a notarial will coerces the testator & the instrumental witnesses to declare before an officer of the law (the notary), that they executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, which could lead to the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of a certain mindset in making the testamentary dispositions to the persons instituted as heirs or designated as devisees/legatees in the will. 15 Acknowledgement can only be made before a competent officera lawyer duly commissioned as a notary public.
In this case, Atty. Directo was not a commissioned notary public for QC. Thus, he lacked the authority to take the acknowledgement of the testatrix & the instrumental witnesses. Felisas will was, in effect, not acknowledged as required by law.
Notary Publics Commission grant of authority in his favor to perform notarial acts, issued within and for a particular territorial jurisdiction, and the notarys authority is co-extensive with it. Outside the place of his commission, he is bereft of power to perform any notarial act; he is not a notary public. SECTION 237 7 . Form of commission for notary public. The appointment of a notary public shall be in writing, signed by the judge, and substantially in the following form: GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PROVINCE OF ___________ This is to certify that ____________, of the municipality of ________ in said province, was on the ___ day of __________, anno Domini nineteen hundred and _______, appointed by me a notary public, within and for the said province, for the term ending on the first day of January, anno Domini nineteen hundred and _____. SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public in a province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall be coextensive with said city. No notary shall possess authority to do any notarial act beyond the limits of his jurisdiction.