CHAPTER 1

GENERAL PROVISIONS

I.

CONCEPT OF SUCCESSION

Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance, of a person are transmitted through
his death to another or others either by his will or by operation of law. (n)
The Code has simplified the concept of succession and treats it simply as one of the 7 Modes
of Acquiring Ownership as enumerated in Art712 of the NCC.

7 MODES OF ACQUIRING OWNERSHIP

1. Occupation
2. Intellectual Creation
3. Law
4. Donation
5. Estate and Intestate Succession
6. Tradition
7. Prescription

II.

KINDS OF SUCCESSION:

A. TESTAMENTARY
Art. 779. Testamentary succession is that which results from the designation of an heir, made
in a will executed in the form prescribed by law. (n)
B. LEGAL OR INTESTATE
Art. 960. Legal or intestate succession takes place:
1. If a person dies without a will, or with a void will, or one which has subsequently
lost its validity;

2.

When the will does not institute an heir to, or dispose of all the property
belonging to the testator. In such case, legal succession shall take place only with
respect to the property of which the testator has not disposed;

3.

If the suspensive condition attached to the institution of heir does not happen or
is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion takes place;

4.

When the heir instituted is incapable of succeeding, except in cases provided in this
Code. (912a)
C. MIXED
Art. 780. Mixed succession is that effected partly by will and partly by operation of law.
D. CONTRACTUAL (superseded by Art. 84 of the Family Code)

CHAPTER 2
TESTAMENTARY SUCCESSION

III.

TESTAMENTARY SUCCESSION

A. WILLS
1. DEFINITION
Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of this estate, to take effect after his death.
(667a)
B. CHARACTERISTICS OF WILLS
1. Purely statutory, formal
Art. 783
2. Free and voluntary
Art. 839. The will shall be disallowed in any of the following cases:
1.

If the formalities required by law have not been complied with;

2.

If the testator was insane, or otherwise mentally incapable of making a will, at the time
of its execution;

3. If it was executed through force or under duress, or the influence of fear, or threats;
4.

If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;

5.

If the signature of the testator was procured by fraud;

6. If the testator acted by mistake or did not intend that the instrument he signed should be
his will at the time of affixing his signature thereto. (n)
3. Essentially revocable
Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or
restriction of this right is void. (737a)
4. Testator must have testamentary capacity
a. Not prohibited by law
Art. 796. All persons who are not expressly prohibited by law may make a will. (662)
b. 18 years old or over
Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)
c. Of sound and disposing mind
Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of
its execution. (n)
5. Disposition must be mortis causa
Art. 777. The rights to the succession are transmitted from the moment of the death of the
decedent. (657a)
VITUG VS CA 183 SCRA 755
Facts:
This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two
wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A.naming private
respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment
of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's)
widower, petitioner Romarico G. Vitug, pending probate.On January 13, 1985, Romarico G.
Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and

real properties belonging to the estate to cover allegedly his advances to the estate in the sum of
P667,731.66, plus interests, which he claimed were personal funds.Rowena Corona opposed the
motion to sell on the ground that the same funds withdrawn from savings account No. 35342-038
were conjugal partnership properties and part of the estate, and hence, there was allegedly no
ground for reimbursement. She also sought his ouster for failure to include the sums in question
for inventory and for "concealment of funds belonging to the estate."Vitug insists that the said
funds are his exclusive property having acquired the same through a survivorship agreement
executed with his late wife and the bank on June 19, 1970. The agreement provides:
We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or
hereafter deposited by us or any or either of us with the BANK in our joint savings current
account shall be the property of all or both of us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime, and after the death of either or any of us
shall belong to and be the sole property of the survivor or survivors, and shall be payable to and
collectible or withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or check of either, any or all of
us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or
withdrawal made for our above-mentioned account shall be valid and sufficient release and
discharge of the BANK for such payment or withdrawal.
The trial courts upheld the validity of this agreement and granted "the motion to sell some
of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal
funds of Romarico Vitug in the total sum of P667,731.66 ... ."
On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private
respondent, held that the above-quoted survivorship agreement constitutes a conveyance
mortis causa which "did not comply with the formalities of a valid will as prescribed by
Article 805 of the Civil Code," and secondly, assuming that it is a mere donation inter
vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code.
In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of
our decisions in Rivera v. People's Bank and Trust Co.and Macam v. Gatmaitan in which we
sustained the validity of "survivorship agreements" and considering them as aleatory contracts.
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should be embodied
in a will. A will has been defined as "a personal, solemn, revocable and free act by which a
capacitated person disposes of his property and rights and declares or complies with duties to
take effect after his death."
In other words, the bequest or device must pertain to the testator.

In this case, the monies subject of savings account No. 35342-038 were in the nature of
conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co., we rejected
claims that a survivorship agreement purports to deliver one party's separate properties in
favor of the other, but simply, their joint holdings:
... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive
owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1)
that the account was originally opened in the name of Stephenson alone and (2) that Ana
Rivera "served only as housemaid of the deceased." But it not infrequently happens that a
person deposits money in the bank in the name of another; and in the instant case it also appears
that Ana Rivera served her master for about nineteen years without actually receiving her
salary from him. The fact that subsequently Stephenson transferred the account to the name
of himself and/or Ana Rivera and executed with the latter the survivorship agreement in
question although there was no relation of kinship between them but only that of master and
servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account.
In the absence, then, of clear proof to the contrary, we must give full faith and credit to the
certificate of deposit which recites in effect that the funds in question belonged to Edgar
Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that either of
them could withdraw any part or the whole of said account during the lifetime of both, and the
balance, if any, upon the death of either, belonged to the survivor.
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to
article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to
give or do something as an equivalent for that which the other party is to give or do in case
of the occurrence of an event which is uncertain or will happen at an indeterminate time.
As already stated, Leonarda was the owner of the house and Juana of the Buick automobile and
most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in case
Leonarda died first, and Leonarda would become the owner of the automobile and the furniture if
Juana were to die first. In this manner Leonarda and Juana reciprocally assigned their respective
property to one another conditioned upon who might die first, the time of death determining the
event upon which the acquisition of such right by the one or the other depended. This contract, as
any other contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before
Juana, the latter thereupon acquired the ownership of the house, in the same manner as Leonarda
would have acquired the ownership of the automobile and of the furniture if Juana had died first.
Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it
was to take effect after the death of one party. Secondly, it is not a donation between the
spouses because it involved no conveyance of a spouse's own properties to the other.
The validity of the contract seems debatable by reason of its "survivor-take-all" feature,
but in reality, that contract imposed a mere obligation with a term, the term being death.
Such agreements are permitted by the Civil Code.

Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to
give or to do something in consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur at an indeterminate time.
nder the aforequoted provision, the fulfillment of an aleatory contract depends on either the
happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate
time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating
on the value of currency, and insurance have been held to fall under the first category, while a
contract for life annuity or pension under Article 2021, et sequentia, has been categorized
under the second. In either case, the element of risk is present. In the case at bar, the risk was
the death of one party and survivorship of the other.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her
husband, the latter has acquired upon her death a vested right over the amounts under
savings account No. 35342-038 of the Bank of America. Insofar as the respondent court
ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in
error. Being the separate property of petitioner, it forms no more part of the estate of the
deceased.
6. Testator must have animus testandi purpose is to transfer title via a testamentary
disposition in contemplation of death, to take effect upon testators death.
C. INTERPRETATION OF WILLS
1. In favor of validity
Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred.
2. In case of ambiguities
Art. 789. When there is an imperfect description, or when no person or property exactly answers
the description, mistakes and omissions must be corrected, if the error appears from the
context of the will or from extrinsic evidence, excluding the oral declarations of the testator as
to his intention; and when an uncertainty arises upon the face of the will, as to the application
of any of its provisions, the testator's intention is to be ascertained from the words of the
will, taking into consideration the circumstances under which it was made, excluding such oral
declarations. (n)
a. Latent or intrinsic ambiguity that which does not appear on the face of the will and is
discovered only by extrinsic evidence;
1. When there is an imperfect description of the heir, legatee, or devisee;

2. When there is an imperfect description of the gift being given;

3. When only one recipient is designated but it turns out, there are two or more who fit the
description;
b. Patent or extrinsic ambiguity that which appears on the face of the will itself; by
examining the provisions itself, it is evident that it is not clear;
How to cure ambiguities:
a. By examining the will itself;
b. Extrinsic evidence such as written declarations of the testator (oral declarations not
allowed since contrary to the dead mans statute)
3. Interpretation of words
Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless
a clear intention to use them in another sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless the context clearly
indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with
such technical sense. (675a)
4. Interpretation as a whole
Art. 791. The words of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to be preferred which will prevent intestacy.
(n)
5. Separability of invalid provisions
Art. 792. The invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not
have made such other dispositions if the first invalid disposition had not been made. (n)
6. After-acquired property
Art. 793. Property acquired after the making of a will shall only pass thereby, as if the
testator had possessed it at the time of making the will, should it expressly appear by the will
that such was his intention. (n)
7. Extent of interest covered
Art. 794. Every devise or legacy shall cover all the interest which the testator could device or
bequeath in the property disposed of, unless it clearly appears from the will that he intended to
convey a less interest. (n)

The entire interest of the testator in the property is given, not more not less;
D. LAW GOVERNING FORM
a. As to the time of execution
Art. 795. The validity of a will as to its form depends upon the observance of the law in force
at the time it is made. (n)
Kinds of validity
A. Extrinsic validity refers to the forms and solemnities needed
a. What must be observed is the law in force at the time the will is executed;
b. What law of the land must be observed depends:
i. If the testator is a Filipino, he can observe Philippine laws; or the laws of
the country where he may be; laws of the country where he executes the
will;
ii. If the testator is an alien who is abroad, he can follow the law of his
domicile; or his nationality; or Philippine laws; or where he executes the
will;
iii. If the testator is an alien in the Philippines, he can follow the law of his
nationality or the laws of the Philippines, since he executes the will here;
B. Intrinsic validity refers to the legality of the provisions in an instrument
a. Successional rights are governed by the law in force at the TIME OF THE
DECEDENTS DEATH;
b. Laws that must be observed depends: under Philippine Law:
i. National law of the decedent; law of his country or nationality; regardless
of the place of execution and the place of death;
ii. RENVOI DOCTRINE: referring back to the forum of the problem
1. Where the conflict rules under the decedents national law refers
the matter to the law of the domicile;
iii. Intestate and testamentary succession both with respect to:
1. The order of succession
2. The amount of successional rights
3. And the intrinsic validity of testamentary provisions
Shall be regulated by the national law of the person whose succession is
under consideration, whatever may be the nature of the property, and
regardless of the country where said property may be found.
b. As to the place of execution
Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.

Art. 810. A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be made in
or out of the Philippines, and need not be witnessed. (678, 688a)
Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the
forms established by the law of the country in which he may be. Such will may be probated in
the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with
the formalities prescribed by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those which this Code prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject of another country, which is
executed in accordance with the law of the country of which he is a citizen or subject, and
which might be proved and allowed by the law of his own country, shall have the same effect as
if executed according to the laws of the Philippines. (n)
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either
for their reciprocal benefit or for the benefit of a third person. (669)
Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign
country shall not be valid in the Philippines, even though authorized by the laws of the
country where they may have been executed. (733a)
E. LAW GOVERNING CONTENT
a. As to time
Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the
effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws,
and by the Rules of Court. The inheritance of those who, with or without a will, die after the
beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with
this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried
out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies
and bequests shall be respected; however, their amount shall be reduced if in no other manner
can every compulsory heir be given his full share according to this Code. (Rule 12a)
b. As to successional rights
Art. 16. Real property as well as personal property is subject to the law of the country where it is
stipulated.
CAYETANO VS LEONIDES 129 SCRA 524

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C.
Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only
compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules
of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the
United States and for her appointment as administratrix of the estate of the deceased
testatrix.In her petition, Nenita alleged that the testatrix was an American citizen at the
time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.;
As a general rule, the probate court's authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testatrix's testamentary capacity and the compliance
with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the court has declared that the will has been duly authenticated. However,
where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114
SCRA 478).
the private respondents have sufficiently established that Adoracion was, at the time of her
death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A.
Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and regardless of
the country wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is
the national law of the decedent. Although the parties admit that the Pennsylvania law does not
provide for legitimes and that all the estate may be given away by the testatrix to a complete
stranger, the petitioner argues that such law should not apply because it would be contrary to the
sound and established public policy and would run counter to the specific provisions of
Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as
provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent
must apply.
This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional
rights, to the decedent's national law. Specific provisions must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A.,
and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of successional rights are to be
determined under Texas law, the Philippine Law on legitimes cannot be applied to the
testacy of Amos G. Bellis.

F. SOLEMNITIES OF WILLS
a. General requirements
Art. 804. Every will must be in writing and executed in a language or dialect known to the
testator. (n)
b. Specific requirements
Art. 805.

Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or

caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them. (n)
Art. 806.

Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or
file another with the Office of the Clerk of Court. (n)

SONOZA VS HONRADO
Should disciplinary action be taken against respondent judge for having admitted to probate a
will, which on its face is void because it is written in English, a language not known to the
illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did
not appear before the notary as admitted by the notary himself?
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
childless. They reared a boy named Agapito who used the surname Suroza and who considered
them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of
CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when
Mauro married Marcelina in 1923).
Agapito and Nenita begot a child named Lilia who became a medical technologist and went
abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his
guardian in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of the
Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot
a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz
(apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador
Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter
(pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed
with Marcelina but was not legally adopted by Agapito.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73
years old. That will which is in English was thumbmarked by her. She was illiterate. Her
letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39,
CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed granddaughter
Marilyn.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix.Upon
motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy

sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to
place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the
said proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the
decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that
Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's
granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's
jurisdiction to issue the ejectment order.
Nenita further alleged 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.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V.
Suroza reiterated her contention that the alleged will is void because Marcelina did not appear
before the notary and because it is written in English which is not known to her .
RULING:
We hold that 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
decedent's legal heirs and not the instituted heiress in the void win should have inherited the
decedent's estate.
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.
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". (p. 16, Record of testate case). 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. Thus, a will written in
English, which was not known to the Igorot testator, is void and was disallowed (Acop vs.
Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge 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 the supposed
granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge
could have noticed that the notary was not presented as a witness.
GARCIA VS LACUESTA 90 PHIL 489
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following
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.
The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by "A reugo del testator" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross immediately after his name. The
Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled
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. Florentino 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 former's 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 three witnesses signed the will in all the
pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testator's name under his express
direction, as required by section 618 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, we are
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.
BALONAN VS ABELLANA 109 PHIL 358
It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4
and 5 of the record) double space. The first page is signed by Juan Bello and under his name
appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629,
Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of
three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the

bottom of which appears the signature of T. de los Santos and below his signature is his
official designation as the notary public who notarized the said testament. On the first page
on the left margin of the said instrument also appear the signatures of the instrumental witnesses.
On the second page, which is the last page of said last Will and Testament, also appears the
signature of the three (3) instrumental witnesses and on that second page on the left margin
appears the signature of Juan Bello under whose name appears handwritten the following
phrase, "Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary
Public Attorney Timoteo de los Santos. (Emphasis supplied)
The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above
the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga,"
comply with the requirements of law prescribing the manner in which a will shall be executed?
Art. 805.

Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witness in the presence of the testator and of
one another. (Emphasis supplied.)

Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:
No will, except as provided in the preceding section shall be valid to pass any
estate, real or personal, nor charge or affect the same, unless it be in writing and
signed by the testator, or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of each other. .
. . (Emphasis supplied).
Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where
the testator does not know how, or is unable, to sign, it will not be sufficient that one of the
attesting witnesses signs the will at the testator's request, the notary certifying thereto as
provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618
above referred to, but it is necessary that the testator's name be written by the person
signing in his stead in the place where he could have signed if he knew how or was able to
do so, and this in the testator's presence and by his express direction; so that a will signed in
a manner different than that prescribed by law shall not be valid and will not be allowed to be
probated.
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the
will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with
the express requirement in the law that the testator must himself sign the will, or that his name be
affixed thereto by some other person in his presence and by his express direction.

NERA VS RIMANDO 18 PHIL 450

The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses 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 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.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they attached
their signatures to the instrument, and this finding, of course, disposes of the appeal and
necessitates the affirmance of the decree admitting the document to probate as the last will and
testament of the deceased.
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 been 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.
But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign if
they choose to do so. This, of course, does not mean that the testator and the subscribing
witnesses may 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
(In the case of Jaboneta vs Gustilo:
The purpose of a statutory requirement that the witness sign in the presence of the testator is said
to be that the testator may have ocular evidence of the identity of the instrument subscribed by
the witness and himself, and the generally accepted tests of presence are vision and mental
apprehension.
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses
are together for the purpose of witnessing the execution of the will, and in a position to
actually see the testator write, if they choose to do so; and there are many cases which lay
down the rule that the true test of vision is not whether the testator actually saw the witness sign,
but whether he might have seen him sign, considering his mental and physical condition and
position at the time of the subscription.)
And the decision merely laid down the doctrine that the question whether the testator and the
subscribing witnesses to an alleged will sign the instrument in the presence of each other does

not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment
of its subscription by each of them, but that at that moment existing conditions and their position
with relation to each other were such that by merely casting the eyes in the proper direction they
could have seen each other sign.

TABOADA VS ROSAL 118 SCRA 195

In the petition for probate filed with the respondent court, the petitioner attached the alleged last
will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
consists of two pages. The first page contains the entire testamentary dispositions and is signed at
the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses
and at the left hand margin by the testatrix.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order
denying the probate of the will of Dorotea Perez for want of a formality in its execution.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of
special administrator was likewise denied because of the petitioner's failure to comply with the
order requiring him to submit the names of' the intestate heirs and their addresses.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the
testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in
the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses,

and that the lacier witnesses and signed the will and the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them;
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial
will to be valid, it is not enough that only the testatrix signs at the "end" but the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of
one another because the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where the end of the will
is found, at the left hand margin of that page.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its
end by the testator himself or by the testator's name written by another person in his presence,
and by his express direction, and attested and subscribed by three or more credible witnesses in
the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those
things are, done which the statute requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names
upon the same paper for the purpose of Identification of such paper as the will which was
executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the
will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due execution of
the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from
the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure and influence upon the testator. This
objective is in accord with the modern tendency in respect to the formalities in the execution of a
will" (Report of the Code commission, p. 103).

In Singson vs Florentino:
The ratio decidendi of these cases seems to be that the attestation clause must contain a statement
of the number of sheets or pages composing the will and that if this is missing or is omitted, it
will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence
aliunde, but by a consideration or examination of the will itself.
ICASIANO VS ICASIANO 11SCRA 422
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last
will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three instrumental witnesses, namely:
attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will
was actually prepared by attorney Fermin Samson, who was also present during the execution
and signing of the decedent's last will and testament, together with former Governor Emilio
Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres and
Natividad were in the Philippines at the time of the hearing, and both testified as to the due
execution and authenticity of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who
actually prepared the document. The latter also testified upon cross examination that he prepared
one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned
copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the
end and in every page, it does not contain the signature of one of the attesting witnesses, Atty.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.
On the question of law, we hold that 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. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at
1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it
or the attestation clause".
CAGRO VS CAGRO 92 PHIL 1032
The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question 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.
We are of the opinion that the position taken by the 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 negates their participation.
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, dissenting:
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.
CRUZ VS VILLASOR 54 SCRA 31
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same
time the Notary Public before whom the will was supposed to have been acknowledged. As
the third witness is the notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will.

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.
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if
the notary public were one of the attesting instrumental witnesses. For then he would be
interested in sustaining the validity of the will as it directly involves him and the validity of
his own act. It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would
be thwarted.
To allow the notary public to act as third witness, or one of the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which would
be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to
act as such and of Article 806 which requires that the testator and the required number of
witnesses must appear before the notary public to acknowledge the will. The result would be, as
has been said, that only two witnesses appeared before the notary public for or that purpose. In
the circumstances, the law would not be duly in observed.
GABUCAN VS MANTA 95 SCRA 752
This case is about the dismissal of a petition for the probate of a notarial will on the ground
that it does not bear a thirty-centavo documentary stamp.
The proceeding was dismissed because the requisite documentary stamp was not affixed to the
notarial acknowledgment in the will and, hence, according to respondent Judge, it was not
admissible in evidence, citing section 238 of the Tax Code, now section 250 of the 1977 Tax
Code, which reads:
SEC. 238. Effect of failure to stamp taxable document. An instrument, document, or paper
which is required by law to be stamped and which has been signed, issued, accepted, or
transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or
any record of transfer of the same be admitted or used in evidence in any court until the requisite
stamp or stamps shall have been affixed thereto and cancelled.
No notary public or other officer authorized to administer oaths shall add his jurat or
acknowledgment to any document subject to documentary stamp tax unless the proper
documentary stamps are affixed thereto and cancelled.
We hold that the lower court manifestly erred in declaring that, because no documentary stamp
was affixed to the will, there was "no will and testament to probate" and, consequently, the
alleged "action must of necessity be dismissed".

What the probate court should have done was to require the petitioner or proponent to affix the
requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is
the taxable portion of that document.
That procedure may be implied from the provision of section 238 that the non-admissibility
of the document, which does not bear the requisite documentary stamp, subsists only "until
the requisite stamp or stamps shall have been affixed thereto and cancelled."
Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary
stamp on a document does not invalidate such document. See Cia. General de Tabacos vs.
Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403, 4056.)
JAVELLANA VS LEDESMA 97 PHIL 258
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents
in the Visayan dialect.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 issue was concentrated into three specific questions: (1) whether the testament of 1950
was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the notary without the
presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby
rendered invalid and ineffective. These questions are the same ones presented to us for
resolution.
1. Our examination of the testimony on record discloses no grounds for reversing the trial
Court's rejection of the improbable story of the witnesses. It is squarely contradicted by
the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon
Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was
executed by testatrix and witnesses in the presence of each other, at the house of the
decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,
and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria,
an infirm lady then over 80 years old, should leave her own house in order to execute her
will, when all three witnesses could have easily repaired thither for the purpose.
Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's
witnesses. Both claim to have heard the word "testamento" for the first time when Yap
used it; and they claimed ability to recall that word four years later, despite the fact that
the term meant nothing to either. It is well known that what is to be remembered must
first be rationally conceived and assimilated (II Moore on Facts, p. 884).
2. At any rate, as observed by the Court below, 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. Unlike the Code of 1889 (Art. 699), 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 and witnesses sign in the presence of each
other, all that is thereafter required is that "every 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.
CANEDA VS CA 222 SCRA 781
The records show that 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 in
Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and
a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared
therein, among other things, that the testator was leaving by way of legacies and devises his real
and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to
the testator.
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed
as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of
Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the Testator's will and the appointment of a special
administrator for his estate.
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and
void for the reason that 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.
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 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. It is made for the purpose
of preserving in a permanent form a record of the facts that attended the execution of a particular

will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such
facts may still be proved.
Under the third paragraph of Article 805, such a clause, the complete lack of which would result
in the invalidity of the will, should state (1) the number of the pages used upon which the
will is written; (2) that the testator signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting witnesses; and (3) that the attesting
witnesses witnessed the signing by the testator of the will and all its pages, and that said
witnesses also signed the will and every page thereof in the presence of the testator and of
one another.
The attestation in the will of testator states:
We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the
Opposite of our respective names, we do hereby certify that the Testament was read by him and
the testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of
THREE PAGES, including the Acknowledgment, each page numbered correlatively in the letters
on the upper part of each page, as his Last Will and Testament and he has the same and every
page thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact
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.
The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with precision. They do not allow evidence
aliunde to fill a void in any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will, an exploration into its confines,
to ascertain its meaning or to determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire
results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied
by an examination of the will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the allowance to probate of the will
being assailed. However, those omissions which cannot be supplied except by evidence aliunde
would result in the invalidation of the attestation clause and ultimately, of the will itself.
CALDE VS CA June 27, 1994
The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property.
She also left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto, dated July

24, 1973. Both documents contained the thumbmarks of decedent. They were also signed by
three (3) attesting witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal
Judge and Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC
of Bontoc, Mt. Province, Br. 36. He died during the pendency of the proceedings, and was duly
substituted by petitioner. Private respondents, relatives of decedent, opposed the Petitioner filed
by Calde, on the following grounds: that the will and codicil were written in Ilocano, a dialect
that decedent did not know; that decedent was mentally incapacitated to execute the two
documents because of her advanced age, illness and deafness; that decedents thumbmarks
were procured through fraud and undue influence; and that the codicil was not executed in
accordance with law.
On June 23, 1988, the trial court rendered judgment on the case, approving and allowing
decedents will and its codicil. The decision was appealed to and reversed by the respondent
Court of Appeals. It held:
. . . (T)he will and codicil could pass the safeguards under Article 805 of the New Civil Code
but for one crucial factor of discrepancy in the color of ink when the instrumental witnesses
affixed their respective signatures.
The question in the case at bench is one of fact: whether or not, based on the evidence submitted,
respondent appellate court erred in concluding that both decedents Last Will and Testament, and
its Codicil were subscribed by the instrumental witnesses on separate occasions. As a general
rule, factual findings of the Court of Appeals are considered final and conclusive, and cannot be
reviewed on appeal to this court. In the present instance, however, there is reason to make an
exception to that rule, since the finding of the respondent court is contrary to that of the trial
court.
In the case at bench, the autoptic preference (From the point of view of the litigant party
furnishing this source of belief, it may be termed Autoptic Proference) contradicts the
testimonial evidence produced by petitioner. The will and its codicil, upon inspection by the
respondent court, show in black and white or more accurately, in black and blue that more
than one pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for
respondent court to disbelieve petitioners claim that both testamentary documents in question
were subscribed to in accordance with the provisions of Art. 805 of the Civil Code.
Neither did respondent court err when it did not accord great weight to the testimony of
Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two
testamentary documents were subscribed and attested to, starting from decedents thumbmarking
thereof, to the alleged signing of the instrumental witnesses thereto in consecutive order.
Nonetheless, nowhere in Judge Toletes testimony is there any kind of explanation for the
different-colored signatures on the testaments.
c. Special requirements

Art. 807.

If the testator be deaf, or a deaf-mute, he must personally read the will, if able
to do so; otherwise, he shall designate two persons to read it and communicate
to him, in some practicable manner, the contents thereof. (n)

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. (n)

GARCIA VS VASQUEZ 32 SCRA 489

Facts:
Two wills were executed, one during 1956, the other on 1960. Testatrix was suffering from
glaucoma when the subsequent 1960 will, consisting only of one page to which the provisions
were crammed, was executed. Oppositors to the will alleged that the will was secured through
fraud or undue influence as when the testatrix condition may be considered as similar to that of a
blind man. Likewise, they seek to oust the special administratrix for having conflict of interest
for having previously bought the property of the testatrix for only 30k when it was more that
300k in value.
Court held:
Testators condition is similar to that of a blind man thus under Art. 808, the provisions of the
will shouldve been read to her twice.
That the special administratrix is removed in so far as with respect to her interest in the
testamentary succession but doesnt invalidate the previous sale of property between her and the
testatrix.
d. Substantial compliance
Art. 809.

In the absence of bad faith, forgery, or fraud, or undue and improper

pressure and influence, defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all
the requirements of Article 805. (n)

GIL VS MURCIANO 88 PHIL 260

The Court of First Instance of Manila admitted to probate the alleged will and testament of the
deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this

Court, raising only question of law. Her counsel assigns the two following alleged
errors:
Primer Error. El Juzgado inferior erro al dejar de declarar que el alegado testamento de Carlos
Gil no ha sido otogar de acuerdo con la ley.
Segundo Error. Erro finalmente a legalizar el referido testamento. (HIJO DE PUTA!!! DO I
SPEAK SPANISH?! NO ME HABLE ESPAOL ESE!!!)
It will be noted that the attestation clause above quoted does not state that the alleged
testor signed the will. It declares only that it was signed by the witnesses. This is a fatal
defect, for the precise purpose of the attestation clause is to certify that the testator signed
the will, this being the most essential element of the clause. Without it there is no attestation at
all. It is said that the court may correct a mere clerical error. This is too much of a clerical error
for it affects the very essence of the clause. Alleged errors may be overlooked or correct only in
matters of form which do not affect the substance of the statement.
It is claimed that the correction may be made by inference. If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in wills?
Where are we to draw the line? Following that procedure we would be making interpolations by
inferences, implication, and even by internal circumtantial evidence. This would be done in the
face of the clear, uniquivocal, language of the statute as to how the attestation clause should be
made. It is to be supposed that the drafter of the alleged will read the clear words of the statute
when he prepared it. For the court to supply alleged deficiencies would be against the evident
policy of the law. Section 618 of Act No. 190, before it was amended, contained the following
provision:
. . . But the absence of such form of attestation shall not render the will invalid if it proven that
the will was in fact signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing
the contents of the attestation clause, entirely suppressed the above-quoted provision. This would
show that the purpose of the amending act was to surround the execution of a will with greater
guarantees and solemnities. Could we, in view of this, hold that the court can cure alleged
deficiencies by inferences, implications, and internal circumstantial evidence? Even in ordinary
cases the law requires certain requisities for the conclusiveness of circumstantial evidence.
It is said that the rules of statutory construction are applicable to documents and wills. This
is true, but said rules apply to the body of the will, containing the testamentary provisions,
but not to the attestation clause, which must be so clear that it should not require any
construction.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:

4. ID.; ID.; ID.; ID. An attestation clause which does not recite that the witnesses signed the
will and each and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. (Sano vs. Quintana, supra.)
The Supreme Court fully affirmed the decision, laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. The
attestation clause must be made in strict conformity with the requirements of section 618 of
Act No. 190, as amended. Where said clause fails to show on its face a full compliance with
those requirements, the defect constitutes sufficient ground for the disallowance of the will.
(Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde should
not be admitted to establish facts not appearing on the attestation clause, and where said
evidence has been admitted it should not be given the effect intended. (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED.
Section 618 of Act No. 190, as amended, should be given a strict interpretation in order to give
effect to the intention of the Legislature. Statutes prescribing formalities to be observed in the
execution of wills are very strictly construed. Courts cannot supply the defensive execution
of will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)
CUEVAS VS ACHACOSO 88 PHIL 730
On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In said will the deceased
instituted as his heirs, Valentina Cuevas, his widow and Rosario Asera Venzon, his daughter. He
named therein his widow as executrix of the will. On February 1, 1946, Valentina Cuevas filed a
petition for the probate of said will.
On May 10, 1946, one Pilar Achacoso filed an alternative petition for the probate of a previous
will executed by the deceased praying therein that, if the will submitted by the widow be
rejected, the other will be admitted to probate in lieu thereof. In the previous will there are other
heirs instituted, among them petitioner Pilar Achacoso. Pilar Achacoso objected to the probate of
the second will executed by the deceased on October 10, 1945. After due hearing, the court
found that the latter will was executed in accordance with law and ordered that it be admitted to
probate. Pilar Achacoso took the case to the Court of Appeals, but the latter certified it to this
Court on the ground that it involves purely questions of law.
The main error assigned refers to the alleged lack of attestation clause in the will under
consideration, or to the fact that, if there is such attestation clause, the same has not been
signed by the instrumental witnesses, but by the testator himself, and it is claimed that this
defect has the effect of invalidating the will.
The will in question, after reciting in separate paragraphs, and under correlative numbers, the
provisions of the will, winds up with the following clause:

IN WITNESS WHEREOF, I sign this testament or last will in the municipality of Iba, Zambales,
Philippines, this 10th day of October, 1945, in the presence of the three witnesses, namely Dr.
Nestorio Trinidad, Don Baldomero Achacoso, and Mr. Proceso Cabal as instrumental witnesses
to my signing; this testament is written in three (3) sheets marked by letter "A", "B" and "C"
consecutively on top of each sheet and upon my request and in my presence and also in the
presence of each of the aforesaid instrumental witnesses, they also signed this testament already
reffered to.
I hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as well as
the testament itself have been signed by me as also each of the witnesses has also signed in my
presence and in the presence of each other.
(Sgd.) JOSE VENZON
Witnesses:
(Sgd.) NESTORIO TRINIDAD
(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.
The clause above quoted is the attestation clause reffered to in the law which, in our
opinion, substantially complies with its requirements. The only apparent anomaly we find is
that it appears to be an attestation made by the testator himself more than by the instrumental
witnesses. This apparent anomaly, as to affect the validity of the will, it appearing that right
under the signature of the testator, there appear the signatures of the three instrumental witnesses.
"Instrumental witness, as define by Escriche in his Diccionario Razonado de Legislacion y
Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or
writing" (In re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does
not merely attest to the signature of the testator but also to the proper execution of the will. The
fact that the three instrumental witnesses have signed the will immediately under the
signature of the testator, shows that they have in fact attested not only to the genuineness of
his signature but also to the due execution of the will as embodied in the attestation clause.
As was said in one case, "the object of the solemnities surrounding the execution of the
wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. Therefore the laws on this subject
should be intrepreted in such a way as to attain this premordial 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 frustrative of the testator's will, must be disregarded."
e. Witnesses to wills
1. Who are competent

Art. 820.

Any person of sound mind and of the age of eighteen years or more, and not
blind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in Article 805 of this Code. (n)

Art. 821.

The following are disqualified from being witnesses to a will:

1. Any person not domiciled in the Philippines;
2. Those who have been convicted of falsification of a document, perjury or
false testimony. (n)

GONZALES VS CA 90 SCRA 183

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without
issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at
the age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein
private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the
deceased, and that private respondent, with her husband and children, lived with the deceased at
the latters residence prior an- d up to the time of her death.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed
and attested as required by law when there was absolutely no proof that the three instrumental
witnesses were credible witness
In fine, We state the rule that the instrumental witnesses in Order to be competent must be
shown to have the qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be credible, that is worthy of
belief and entitled to credence, it is not mandatory that evidence be first established on
record that the witnesses have a good standing in the community or that they are honest
and upright or reputed to be trustworthy and reliable, for a person is presumed to be such
unless the contrary is established otherwise. In other words, the instrumental witnesses must
be competent and their testimonies must be credible before the court allows the probate of the
will they have attested.
CRUZ VS VILLASOR 54 SCRA 31
To allow the notary public to act as third witness, or one of the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be requiring at least three credible
witnesses to act as such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge the will. The result
would be, as has been said, that only two witnesses appeared before the notary public for or that
purpose. In the circumstances, the law would not be duly in observed.

f. Holographic wills
1. In general
Art. 804.

Every will must be in writing and executed in a language or dialect known to the
testator. (n)

2. Specific requirements
Art. 810.

A person may execute a holographic will which must be entirely written,

dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be
witnessed. (678, 688a)

Art. 812.

In holographic wills, the dispositions of the testator written below his

signature must be dated and signed by him in order to make them valid as
testamentary dispositions. (n)

Art. 813.

When a number of dispositions appearing in a holographic will are signed

without being dated, and the last disposition has a signature and a date, such
date validates the dispositions preceding it, whatever be the time of prior
dispositions. (n)

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. (n)

ROXAS VS DE JESUS 134 SCRA 245

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-win 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 win which I want to be respected although it is not written by a
lawyer. ...
The 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, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively Identified her signature. 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.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code
which reads:
ART. 810.

A person may execute a holographic will which must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not be witnessed.

Respondent Luz Henson on the other hand submits that the purported holographic 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.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the
statutory requirements regarding the due execution of Wills. We should not overlook the liberal
trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of
doubt is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of the law on wigs in this
Project consists in the liberalization of the manner of their execution with the end in view of
giving the testator more freedom in expressing his last wishes, but with sufficien safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and improper pressure
and influence upon the testator.
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 and the
only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
KALAW VS RELOVA 132 SCRA 237
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir
of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December
24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound
and disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named provide and
erect at the expose of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole
heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, 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.
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.1
Manresa gave an Identical commentary when he said "la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895."
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,

G. REVOCATION OF WILLS
a. When effected
Art. 828.

A will may be revoked by the testator at any time before his death. Any waiver
or restriction of this right is void. (737a)

b. Law governing revocation

Art. 829.

A revocation done outside the Philippines, by a person who does not have his
domicile in this country, is valid when it is done according to the law of the
place where the will was made, or according to the law of the place in which
the testator had his domicile at the time; and if the revocation takes place in
this country, when it is in accordance with the provisions of this Code. (n)

c. Modes of revocation
Art. 830.

No will shall be revoked except in the following cases:

1. By implication of law; or
2.

By some will, codicil, or other writing executed as provided in case

of wills; or

3.

By burning, tearing, cancelling, or obliterating the will with the

intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned, torn,
cancelled, or obliterated by some other person, without the express
direction of the testator, the will may still be established, and the estate
distributed in accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (n)

LIPANA VS LIPANA 70 PHIL 865

One Eliodora Lipana filed in the respondent court an application for the probate of a will
supposedly executed by the deceased, Manuela Lipana, a carbon copy of which was attached to
the application. Natividad Lipana filed an opposition, and her "oposicion supletoria" she claimed
that evidence was unnecessary upon the facts alleged in the application, the copy of the will
attached thereto showing, in itself, that the will had not been executed in accordance with law.
The respondent court, after inspecting the copy of the will, dismissed the application on the

ground that such copy could not be admitted to probate, it not having been signed by the testatrix
and the attesting witnesses at the end thereof and on the left margin of each page. It is against
this order of dismissal that the petition for certiorari has been filed with this court.
There can be no doubt that the respondent court acted in excess of its jurisdiction in
rendering a judgment upon the merits of the case without a previous hearing. The
pronouncement made by the respondent court that the will had not been executed in accordance
with law, is founded undoubtedly on the erroneous assumption that the probate of the
carbon copy of the will was being applied for. Such copy was attached to the application
merely to corroborate the allegation as to the existence of its original and not to establish a
full compliance with the requirements of the law as to the execution of the will. Such
requirements are alleged in the application to have been complied with and may be proved at the
hearing.
It is apparent from the application that what is sought to be admitted to probate is the
original of the will. It is alleged therein that the original was in the possession of a third person
or that it was either lost or destroyed by some person other than the testatrix. Under Section 623
of Act No. 190, if a will is shown to have been torn by some other person without the
express direction of the testator, it may be admitted to probate, if its contents, due
execution and its unauthorized destruction are established by satisfactory evidence. The
applicant, therefore, was entitled to hearing to prove the due execution of the original will and its
loss or destruction, and the respondent court had no statutory authority to dismiss the application
without such hearing.
GAGO VS MAMUYAC 49 PHIL 902

The purpose of this action was to obtain the probation of a last will and testament of Miguel
Mamuyac.
It appears from the record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament.
Francisco Gago presented a petition for the probation of that will.
The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon, and Catalina Mamuyac.
After hearing all of the parties the petition for the probation of said will was denied upon the
ground that the deceased had on the 16th day of April, 1919, executed a new will and
testament.
On the 21st day of February, 1925, the present action was commenced to secure the
probation of the said will of the 16th day of April, 1919.
To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second
will and testament executed by the said Miguel Mamuyac; (b) that the same had been
cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will
was not the last will and testament of the deceased Miguel Mamuyac.

The appellant contends that the lower court committed an error:

in not finding from the evidence that the will in question had been executed with all the
formalities required by the law;
that the same had been revoked and cancelled in 1920 before his death;
that the said will was a mere carbon copy and that the oppositors were not estopped
from alleging that fact.

Held:

With reference to the said cancellation, it may be stated that there is positive proof, not
denied, which was accepted by the lower court, that will in question had been cancelled
in 1920. The law does not require any evidence of the revocation or cancellation of a will
to be preserved. It therefore becomes difficult at times to prove the revocation or
cancellation of wills. The fact that such cancellation or revocation has taken place must
either remain unproved of be inferred from evidence showing that after due search the
original will cannot be found.
Where a will which cannot be found is shown to have been in the possession of the
testator, when last seen, the presumption is, in the absence of other competent evidence,
that the same was cancelled or destroyed. The same presumption arises where it is
shown that the testator had ready access to the will and it cannot be found after his
death. It will not be presumed that such will has been destroyed by any other person without
the knowledge or authority of the testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by proof that the will was not
destroyed by the testator with intent to revoke it.
In a proceeding to probate a will the burden of proofs is upon the proponent clearly to
establish not only its execution but its existence. Having proved its execution by the
proponents, the burden is on the contestant to show that it has been revoked. In a great
majority of instances in which wills are destroyed for the purpose of revoking them there is
no witness to the act of cancellation or destruction and all evidence of its cancellation perish
with the testator.
Copies of wills should be admitted by the courts with great caution. When it is proven,
however, by proper testimony that a will was executed in duplicate and each copy was
executed with all the formalities and requirements of the law, then the duplicate may be
admitted in evidence when it is made to appear that the original has been lost and was
not cancelled or destroyed by the testator.

MALOTO VS CA 153 SCRA 451

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's
estate.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled
"KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and
purporting to be the last will and testament of Adriana.
Atty. Palma claimed to have found the testament, the original copy, while he was going
through some materials inside the cabinet drawer formerly used by Atty. Hervas.
While Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of Adriana than what they
received by virtue of the agreement of extrajudicial settlement they had earlier signed.
The will likewise gives devises and legacies to other parties.
Significantly, the appellate court while finding as inconclusive the matter on whether or not
the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto
Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and
found that the will had been revoked.
The respondent court stated that the presence of animus revocandi in the destruction of
the will had, nevertheless, been sufficiently proven.
The appellate court based its finding on the facts that:
The document was not in the two safes in Adriana's residence,
By the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in
the latter's possession, and,
Her seeking the services of Atty. Palma in order to have a new will drawn up

Held:

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the
will. The heart of the case lies on the issue as to whether or not the will was revoked by
Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by
the testator himself, or by some other person in his presence, and by his express direction. If
burned, torn cancelled, or obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not
per se constitute an effective revocation, unless the destruction is coupled with animus
revocandi on the part of the testator.
It is not imperative that the physical destruction be done by the testator himself. It may
be performed by another person but under the express direction and in the presence of
the testator. Of course, it goes without saying that the document destroyed must be the
will itself.
Animus revocandi is only one of the necessary elements for the effective revocation of a
last will and testament. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will carried out by the
testator or by another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For one, the document or
papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will
at all, much less the will of Adriana Maloto. For another, the burning was not proven to have
been done under the express direction of Adriana. And then, the burning was not in her
presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only
ones present at the place where the stove (presumably in the kitchen) was located in which
the papers proffered as a will were burned.
At this juncture, we reiterate that "(it) is an important matter of public interest that a
purported win is not denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its very foundations ...."
d. Doctrine of dependent relative revocation

MOLO VS MOLO 90 PHIL 37

FACTS:
Mariano Molo died on January 24, 1941 without leaving any forced heir either in the
descending or ascending line.
His wife Juana Molo (petitioner) survived him, and by his nieces and nephew Luz, Gliceria
and Cornelio, all surnamed Molo (oppositors-appellants).
Oppositors appellants were the legitimate children of a deceased brother of the testator.
Mariano left two wills, one executed on August 17, 1918 and another executed on June 20,
1939,
In both the 1918 and 1939 wills Juana was instituted as his universal heir.
The latter will contains a clause, which expressly revokes the will executed in 1918.
Juana Molo filed in the CFI a petition seeking the probate of the will executed in 1939.
The court rendered a decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.
In view of the disallowance of the will, the widow filed another petition for the probate of the
will executed by the deceased on August 18, 1918.
The oppositors filed an opposition to the petition contending that, notwithstanding the
disallowance of the 1939 will, the revocatory clause is valid and still has the effect of
nullifying the prior will of 1918.

Likewise, regardless of the revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that the testator himself deliberately revoked it.
The will of 1918 was admitted to probate.
Hence this appeal.

ISSUE:
Was the admittance into probate proper?
What is the doctrine of dependent relative revocation?
HELD:
A subsequent will containing a clause revoking a previous will, having been disallowed, for
the reason that it was not executed in conformity with the provisions of law as to the
making of wills, cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void.
The doctrine of dependent relative revocation is usually applied where the testator cancels
or destroys a will or executed an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a substitute for the old, and the new
disposition is not made or, if made, fails to effect for same reason.
The failure of the new testamentary disposition, upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents
the revocation of the original will. But a mere intent to make at some time a will in place of
that destroyed will does not render the destruction conditional. It must appear that the
revocation is dependent upon the valid execution of a new will.
Even in the supposition that the destruction of the original will by the testator could be presumed
from the failure of the petitioner to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief
that the will of 1939 has been validly executed and would be given due effect.
The theory on which the principle of dependent relative revocation is predicated on that the
testator did not intend to die intestate. And this intention is clearly manifest when he executed
two wills on different occasions and instituted his wife as his universal heir. There can therefore
be no mistake as to his intention of dying testate.
Doctrine of dependent relative revocation the revocation by destruction or overt act was
good only if this condition is fulfilled, namely, that the revoking will was valid. The conditioned
was not fulfilled; therefore, the revocation by overt act did not really materialize.