Taboada vs. Rosal GR L-36033.
November 5, 1982
FACTS:
Petitioner Apolonio Taboada filed a petition for probate of the will of the late Dorotea Perez.
The will consisted of two pages, the first page containing all the testamentary dispositions
of the testator and was signed at the end or bottom of the page by the testatrix alone and at
the left hand margin by the three instrumental witnesses. The second page consisted of the
attestation clause and the acknowledgment was signed at the end of the attestation clause
by the three witnesses and at the left hand margin by the testatrix. The trial court disallowed
the will for want of formality in its execution because the will was signed at the bottom of the
page solely by the testatrix, while the three witnesses only signed at the left hand margin of
the page. The judge opined that compliance with the formalities of the law required that the
witnesses also sign at the end of the will because the witnesses attest not only the will itself
but the signature of the testatrix. Hence, this petition.
ISSUE – Was the object of attestation and subscription fully when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions?
HELD:
The objects of attestation and of subscription were fully met and satisfied in the present case
when the instrumental witnesses signed at the left margin of the sole page which contains
all the testamentary dispositions, especially so when the will was properly identified by
subscribing witness Vicente Timkang to be the same will executed by the testatrix. There
was no question of fraud or substitution behind the questioned order.
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.
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.
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”
Garcia v Lacuesta
Facts:
Antero Mercado left a will dated January 3, 1943. The will is written in the Ilocano dialect
which is spoken and understood by the testator. The will also contained an attestation clause
which is signed by three witnesses. The attestation clause states:
“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 ruego del testador" and the name of Florentino Javier.
Antero Mercado is alleged also to have written a cross immediately after his name.
Issue: Whether or not the attestation clause in the will is valid.
Ruling: No. 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. When the testator expressly caused
another to sign the former’s name, this fact must be recited in the attestation clause.
Otherwise, the will is fatally defective. Moreover, the cross appearing on the will is not the
usual signature of Antero Mercado nor is it even one of the ways by which he signed his
name. After mature reflection, the Court is not prepared to liken the mere sign of the cross
to a thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark. Thus, the cross cannot be considered a valid signature.
Cagro v Cagro L-5826
Facts:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance
of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14, 1949.
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.
Issue: WON there is a valid attestation
Ruling:
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 negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the
legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent occasion and in the absence of
the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied.
So ordered with costs against the petitioner and appellee.
ALVARADO v. GAVIOLA
Facts:
79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he
disinherited an illegitimate son (petitioner) and expressly revoked a previously executed
holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.
As testified to by the 3 instrumental witnesses, the notary public and by private respondent
who were present at the execution, the testator did not read the final draft of the will himself.
Instead, private respondent, (Atty. Rino) as the lawyer who drafted the document, read the
same aloud in the presence of the testator, the 3 instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies previously
furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December
1977. On the 29th day of the same month, a codicil was executed changing some
dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was
then suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read the final
draft of the codicil. Instead, it was private respondent who read it aloud in his presence and
in the presence of the three instrumental witnesses (same as those of the notarial will) and
the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death
by private respondent as executor. But petitioner (illegitimate son) filed an opposition with
these grounds: that the will sought to be probated was not executed and attested as required
by law; etc.
ISSUE: Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin"
and its codicil were executed? If so, was the double-reading requirement of said article
complied with?
RULING:
1. No. Brigido Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3) feet" by
reason of the glaucoma which he had been suffering from for several years and even
prior to his first consultation with an eye specialist.
2. No, but the requirement was brushed aside since there’s already substantial compliance
with the law.
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those
who, for one reason or another, are "incapable of reading the(ir) will(s)." Brigido Alvarado
comes within the scope of the term "blind" as it is used in Art. 808.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice;
once, by one of the instrumental witnesses and, again, by the notary public before whom
the will was acknowledged. The purpose is to make known to the incapacitated testator the
contents of the document before signing and to give him an opportunity to object if anything
is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will
and the five-paged codicil who read the same aloud to the testator, and read them only once,
not twice as Art. 808 requires.
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his
"Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the
mere reason that a legal requirement intended for his protection was not followed strictly
when such compliance had been rendered unnecessary by the fact that the purpose of the
law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had
already been accomplished. To reiterate, substantial compliance suffices where the purpose
has been served.
AZAOLA v. SINGSON
FACTS:
Fortunata S. Vda. de Yance died. Francisco Azaola, petitioner, submitted the holographic
will whereby Maria Milagros Azaola was made the sole heir as against the nephew of
deceased Cesario Singson; that witness Francisco Azaola testified that he saw the
holographic will one month, more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he recognized all the
signatures appearing in the holographic will as the handwriting of the testatrix. That said
witness, Azaola, testified that the penmanship appearing and is the handwriting of the
testatrix.
The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and his
wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and
that the same was actually written either on the 5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the signature
are in the writing of the testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body of the will was written in
the handwriting of the testatrix.”
The proponent appealed, urging: first, that he was not bound to produce more than one
witness because the will's authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three witnesses to identify the handwriting
and signature of a holographic will, even if its authenticity should be denied by the adverse
party.
ISSUE: WON it is required to present 3 witnesses to identify the handwriting of the testator,
under Art. 811
RULING:
No. The rule of the first paragraph of Article 811 of the Civil Code is merely directory and is
not mandatory.
We agree with the appellant that since the authenticity of the will was not contested, he was
not required to produce more than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of the proponent. For
it is not merely a question of finding and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that the will and the signature are
in the handwriting of the testator". There may be no available witness of the testator's hand;
or even if so familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility.
That is evidently the reason why the second paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
KALAW v. RELOVA
FACTS:
Private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased
sister, Natividad K. Kalaw, filed a petition for the probate of her holographic Will executed
on December 24, 1968.
Natividad made a first holographic will which named Rosa Kalaw, as her sole heir. However,
it was altered, and Gregorio’s name was written as the sole heir. This alteration was not
authenticated by the full signature of the testator.
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.
ISSUE: WON the will can be given effect
RULING: No. It is void. 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,
