II. Testamentary Succession, Article 779, 783.

Article 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)

Article 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.

A. Definition of a Will

Vitug v. CA, GR. 82027, March 29, 1990

F:

-wife died

-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

-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, which states
that;

xxx 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. Xxx

-lower court 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,"

I:

Won such is a will

H:

-no. No. 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 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.

There is no showing that the funds exclusively belonged to one party, and hence it must be
presumed to be conjugal, having been acquired during the existence of the marital relations.
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.

It is also our opinion that the agreement involves no modification of the conjugal partnership, as
held by the Court of Appeals, by “mere stipulation,” and that it is no “cloak” to circumvent the
law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest
conjugal property, say, by way of a joint and several bank account, more commonly
denominated in banking parlance as an “and/or” account.

In the case at bar, when the spouses Vitug opened savings account, they merely put what
rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the
other, which would have arguably been sanctionable as a prohibited donation. And since the
funds were conjugal, it cannot be said that one spouse could have pressured the other in placing
his or her deposits in the money pool.

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.

B. Characteristics of a Will and Aspects of the making of a Will

Art 784, Art. 785, 786, 787, 1041 and 1057.

Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part
to the discretion of a third person, or accomplished through the instrumentality of an agent or
attorney. (670a)

Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the
determination of the portions which they are to take, when referred to by name, cannot be
left to the discretion of a third person. (670a)

Article 786. The testator may entrust to a third person the distribution of specific property or
sums of money that he may leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to which such property or sums are
to be given or applied. (671a)

Article 787. The testator may not make a testamentary disposition in such manner that
another person has to determine whether or not it is to be operative. (n)

Article 1041. The acceptance or repudiation of the inheritance is an act which is purely

voluntary and free. (988)

Article 1057. Within thirty days after the court has issued an order for the distribution of the
estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to
the court having jurisdiction whether they accept or repudiate the inheritance.

If they do not do so within that time, they are deemed to have accepted the inheritance. 

C. Rules Of Interpretation

Arts 788-794, 1372, Rule 130, Sec. 10 and 14, Art. 1370, 1373, 1374, 929, 930, 931

Article 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. (n)

Article 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)
Article 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 the will was drawn solely
by the testator, and that he was unacquainted with such technical sense. (675a)

Article 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)

Article 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)

Article 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)

Article 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)

Article 1370. If the terms of a contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulations shall control.

If the words appear to be contrary to the evident intention of the parties, the latter shall
prevail over the former. (1281)

Article 1373. If some stipulation of any contract should admit of several meanings, it shall be
understood as bearing that import which is most adequate to render it effectual. (1284)

Article 1374. The various stipulations of a contract shall be interpreted together, attributing

to the doubtful ones that sense which may result from all of them taken jointly. (1285)

Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be understood limited to such part or interest, unless
the testator expressly declares that he gives the thing in its entirety. (864a)

Article 930. The legacy or devise of a thing belonging to another person is void, if the
testator erroneously believed that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will, afterwards becomes his, by
whatever title, the disposition shall take effect. (862a)

Article 931. If the testator orders that a thing belonging to another be acquired in order that it
be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate
must acquire it and give the same to the legatee or devisee; but if the owner of the thing
refuses to alienate the same, or demands an excessive price therefor, the heir or the estate
shall only be obliged to give the just value of the thing. (861a)

3. Parol Evidence Rule

Section 10. Evidence of written agreements. – When the terms of an agreement have been
reduced to writing, it is considered as containing all the terms agreed upon and there can
be, as between the parties and their successors in interest, no evidence of such terms other
than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of the
written agreement if he or she puts in issue in a verifi ed pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the
parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors in interest
after the execution of the written agreement.

The term “agreement” includes wills. (9a)

Section 14. Interpretation according to circumstances. – For the proper construction of an

instrument, the circumstances under which it was made, including the situation of the
subject thereof and of the parties to it, may be shown, so that the judge may be placed in
the position of those whose language he or she is to interpret. (13a)

Dizon-Rivera v Dizon, GR L-24561, June 30, 1970

https://www.academia.edu/34644036/Marina_Dizon-Rivera_v_Dizon_et_al

Villaflor V Juico, GR L-15737, February 28, 1962

VDA. DE VILLANUEVA vs. JUICO

4 SCRA 550

FACTS:  

Don Nicolas Villaflor executed a will in Spanish in his own handwriting,

devising and bequeathing in favor of his wife, Dona Faustina ½ of all his real and
personal properties giving the other half to his brother Don Fausto.

Great niece Petitioner filed an action against the administrator contending

that upon the widow’s death, she became vested with the ownership of the properties
bequeathed under clause 7 pursuant to its 8th clause of the will.

ISSUE:

WON the petitioner is entitled to the ownership of the properties upon the
death of Dona Faustina.

HELD:

 The intention of the testator here was to merely give usufructuary right to his
wife Doňa Fausta because in his will he provided that Doňa Fausta shall forfeit the
properties if she fails to bear a child and because she died without having begotten
any children with the deceased then it means that Doňa Fausta never acquired
ownership over the property. Upon her death, because she never acquired ownership
over the property, the said properties are not included in her estate.  Those
properties actually belong to Villaflor. That was the intention of the
testator.  Otherwise, if the testator wanted to give the properties to Doňa
Fausta then he should have specifically stated in his will that ownership
should belong to Doňa Fausta without mentioning any condition.

Vda. De Villanueva vs. Juico

G.R. No. L-15737 February 28, 1962

Facts:

On October 9, 1908, Don Nicolas Villaflor, a wealthy man of Castillejos,

Zambales, executed a will in Spanish in his own handwriting, devising and bequeathing
in favor of his wife, Dona Fausta Nepomuceno, one-half of all his real and personal
properties, giving the other half to his brother Don Fausto Villaflor. The 12th clause of
the will provided, however, that Clauses 6th and 7th thereof (institution of heirs) would
be deemed annulled from the moment he bore any child with Doña Fausta Nepomuceno.
Don Nicolas Villaflor died on March 3, 1922, without begetting any child with his wife
Doña Fausta Nepomuceno. The latter, already a widow, thereupon instituted Special
Proceeding for the settlement of her husband's estate and in that proceeding, she was
appointed judicial administratrix. In due course of administration, she submitted a project
of partition, As the project of partition, Exhibit "E", now shows Doña Fausta
Nepomuceno received by virtue thereof the ownership and possession of a considerable
amount of real and personal estate. By virtue also of the said project of partition, she
received the use and possession of all the real and personal properties mentioned and
referred to in Clause 7th of the will. On May 1, 1956, Doña Fausta Nepomuceno died
without having contracted a second marriage, and without having begotten any child with
the deceased Nicolas Villaflor. Plaintiff Leonor Villaflor instituted the present action
against the administrator of the estate of the widow Fausta Nepomuceno, on February 8,
1958, contending that upon the widow's death, said plaintiff became vested with the
ownership of the real and personal properties bequeathed by the late Nicolas Villaflor to
clause 7 of his will, pursuant to its eight (8th) clause. Defendant's position, adopted by
the trial court, is that the title to the properties aforesaid became absolutely vested in the
widow upon her death, on account of the fact that she never remarried.

Issue:

Is Leonor Villaflor Vda. De Villanueva declared entitled to the ownership and

fruits of the properties described in clause 7 of the will or testament, from the date of the
death of Doña Fausta Nepomuceno?

Ruling:
 Yes. The plain desire and intent of the testator, as manifested in clause 8 of his
testament, was to invest his widow with only a usufruct or life tenure in the properties
described in the seventh clause, subject to the further condition that if the widow
remarried, her rights would thereupon cease, even during her own lifetime. That the
widow was meant to have no more than a life interest in those properties, even if she did
not remarry at all, is evident from the expressions used by the deceased "uso y posesion
mientras viva" (use and possession while alive) in which the first half of the phrase "uso
y posesion" instead of "dominio" or "propiedad") reinforces the second ("mientras viva").
The testator plainly did not give his widow the full ownership of these particular
properties, but only the right to their possession and use (or enjoyment) during her
lifetime. This is in contrast with the remainder of the estate in which she was instituted
universal heir together with the testator's brother (clause 6).
The court below, in holding that the appellant Leonor Villaflor, as reversionary
legatee, could succeed to the properties bequeathed by clause 7 of the testament only in
the event that the widow remarried, has unwarrantedly discarded the expression
"mientras viva," and considered the words "uso y posesion" as equivalent to "dominio"
(ownership). In so doing, the trial court violated Article 791 of the Civil Code of the
Philippines, as well as section 59 of Rule 123 of the Rules of Court.
Thus, appellant Leonor Villaflor Vda. de Villanueva is declared entitled to the
ownership and fruits of the properties described in clause 7 of the will or testament, from
the date of the death of Doña Fausta Nepomuceno.

Solla v Ascueta, GR 24955, September 4, 1926

https://pdfcoffee.com/digest-solla-v-ascueta-pdf-free.html

https://engrjhez.wordpress.com/2017/07/25/solla-v-ascuenta-g-r-no-l-24955-september-4-
1926/

https://lawphil.net/judjuris/juri1926/sep1926/gr_24955_1926.html

D. Validity of a Will, Art 795, 2263, 16, 1039

Article 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)

Article 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)

Article 16. Real property as well as personal property is subject to the law of the country
where it is stipulated.

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. 

Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)

Bellis V Bellis, GR L-23678, June 6, 1967

http://philippinecasedigests.blogspot.com/2010/09/bellis-vs-bellis-gr-no-l-23678-june-6.html

III. Testamentary Capacity, Art 796-801

SUBSECTION 2. Testamentary Capacity and Intent

Article 796. All persons who are not expressly prohibited by law may make a will. (662)

Article 797. Persons of either sex under eighteen years of age cannot make a will. (n)

Article 798. In order to make a will it is essential that the testator be of sound mind at the
time of its execution. (n)

Article 799. To be of sound mind, it is not necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered
by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act. (n)

Article 800. The law presumes that every person is of sound mind, in the absence of proof
to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid interval.
(n)

Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity. (n)

Torres v Lopez, GR L-24569, February 26, 1926

https://pdfslide.net/documents/second-case-digestdoc.html

http://docshare02.docshare.tips/files/24190/241902218.pdf

De Guzman v Benitez, GR 61167-68, January 20, 1989

http://docshare01.docshare.tips/files/22820/228209359.pdf

The pivotal issue hinges on the mental capacity of the supposed testator, Francisco Benitez on
August 18, 1945 when he allegedly executed his last will and testament. 

The evidence shows that from January 18, 1929 up to March 12, 1941 Francisco Benitez was
confined at the National Mental Hospital for varying periods time.

Baltazar v Laxa, GR 174489, April 11, 2012

https://janthebubbly1992.wordpress.com/2016/11/28/baltazar-vs-laxa/

https://engrjhez.wordpress.com/2017/07/25/baltazar-v-laxa-g-r-no-174489-april-11-2012/

IV. Formal Requirements of a Will, Art 804, 805, 806, 807, 808, 810, 811, 812, 813

SUBSECTION 3. Forms of Wills

Article 804. Every will must be in writing and executed in a language or dialect known to the
testator. (n)

Article 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)

Article 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)

Article 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)

Article 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)

Article 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)

Article 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)

Article 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.

In the absence of any competent witness referred to in the preceding paragraph, and if the
court deem it necessary, expert testimony may be resorted to. (619a)
Article 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)

Article 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)

A. Written and Language Known

Lopez v Liboro, GR L-1787, August 27, 1948

Spanish language

https://vdocuments.mx/successionlopez-vs-liboro-gr-no-l-1787.html

Reyes v Vda. De Vidal, GR L-2867, April 21, 1952

https://caseseverywhere.blogspot.com/2017/10/testate-estate-of-maria-zuniga-vda-de.html

https://lawphil.net/judjuris/juri1952/apr1952/gr_l-2862_1952.html

check ruling 2nd

Suroza v Honrado, A.M. No. 2026-CFI December 19, 1981

English yung will tapos inexplain in tagalog dun sa testatrix w/n void ruling: oo

https://engrjhez.wordpress.com/2017/08/14/suroza-v-judge-honrado-a-m-2026-cfi-december-
19-1981/

Abangan v Abangan, GR L-13431, November 12, 1919

https://pdfcoffee.com/2-abangan-vs-abangan-pdf-free.html

B. Attestation Clause

Testate Estate Of Alipio Abada v Abaja, GR 147145, January 31, 2005

https://pdfcoffee.com/abada-vs-abaja-pdf-free.html facts

ruling

https://lawphil.net/judjuris/juri2005/jan2005/gr_147145_2005.html

C. Date And Signing

Payad v Tolentino, GR L-42258, January 15, 1936

https://lawphil.net/judjuris/juri1936/jan1936/gr_l-42258_1936.html thumbmark

De Gala v Gonzales, GR L-30289, March 26, 1929

On November 23, 1920, Severina Gonzales executed a will in which Serapia de Gala, a niece of
Severina, was designated executrix. The testatrix died in November, 1926, leaving no heirs by
force of law, and on December 2, 1926, Serapia, through her counsel, presented the will for
probate. Apolinario Gonzales, a nephew of the deceased, filed an opposition to the will on the
ground that it had not been executed in conformity with the provisions of section 618 of the
Code of Civil Procedure. On April 2, 1927, Serapia de Gala was appointed special administratrix
of the estate of the deceased. She returned an inventory of the estate on March 31, 1927, and
made several demands upon Sinforoso Ona, the surviving husband of the deceased, for the
delivery to her of the property inventoried and of which he was in possession.

xxxThe appellants Sinforoso Ona and Apolinario Gonzales argue that the will in question
was not executed in the form prescribed by section 618 of the Code of Civil Procedure as
amended by Act No. 2645. That section 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 written in the
language or dialect known by the testator and signed by him, 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. 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, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. The attestation shall
state the number of sheets or 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 three witnesses,
and the latter witnessed and signed the will and all pages thereof in the presence of
the testator and of each other.

The principal points raised by the appeal are (1) that the person requested to sign the name
of the testatrix signed only the latter's name and not her own; (2) that the attestation clause
does not mention the placing of the thumb-mark of the testatrix in the will; and (3) that the
fact that the will had been signed in the presence of the witnesses was not stated in the
attestation clause but only in the last paragraph of the body of the will.

On these facts, the theory of the trial judge was that under the provisions of section
618 of the Code of Civil Procedure, as amended by Act No. 2645, it was essential to
the validity of the will that the person writing the name of the maker of the will also
sign. Under the law prior to the amendment, it had been held by this court that where
a testator is unable to write and his name is signed by another at his request, in his
presence and in that of the subscribing witnesses thereto, it is unimportant, so far as
the validity of the will is concerned, whether the person who writes the name of the
testator signs his own or not. (Barut vs. Cabacungan (1912), 21 Phil., 461). But his
Honor, the trial judge emphasizes that the amendment introduced into the law the
following sentence: '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, on the left margin . . ..' This requirement, it is said, was not lived
up to in this instance.

There is, however, an entirely different view which can be taken of the situation. This
is that the testatrix placed her thumb-mark on the will in the proper places. When,
therefore, the law says that the will shall be 'signed' by the testator or testatrix, the
law is fulfilled not only by the customary written signature but by the testator or
testatrix' thumb-mark. The construction put upon the word 'signed' by most courts is
the original meaning of a signum or sign, rather than the derivative meaning of a sign
manual or handwriting. A statute requiring a will to be 'signed' is satisfied if the
signature is made by the testator's mark. (28 R. C. L., pp. 116-117).

The opinion quoted is exactly in point. The testatrix thumb-mark appears in the center of her
name as written by Serapia de Gala on all of the pages of the will.

The second and third points raised by Sinforoso Ona and Apolinario Gonzales are
sufficiently refuted by quoting the last clause of the body of the will together with the
attestation clause, both of which are written in the Tagalog dialect. These clauses read as
follows

In virtue of this will, consisting of six pages, that contains my last wish, and because
of the fact that I cannot sign my name, I request my niece Serapia de Gala to write
my name, and above this I placed my right thumb-mark at the end of this will and to
 each of the six pages of this document, and this was done at my direction and in the
presence of three attesting witnesses, this 23rd of November, 1920.

(Sgd.) SEVERINA GONZALES

We certify that this document, which is composed of six (6) sheets and was signed in
our presence by Serapia de Gala at the request of Severina Gonzales at the end and
on the margins of each of the six (6) sheets and was declared to contain the last will
and testament of Severina Gonzales, was signed by us as witnesses at the end and
on the margins of each sheet in the presence and at the request of said testatrix, and
each of us signed in the presence of all and each of us, this 23rd day of November of
the year 1920.

(Sgd.) ELEUTERIO NATIVIDAD

JUAN SUMULONG
FRANCISCO NATIVIDAD

As will be seen, it is not mentioned in the attestation clause that the testatrix signed by
thumb-mark, but it does there appear that the signature was affixed in the presence of the
witnesses, and the form of the signature is sufficiently described and explained in the last
clause of the body of the will. It maybe conceded that the attestation clause is not artistically
drawn and that, standing alone, it does not quite meet the requirements of the statute, but
taken in connection with the last clause of the body of the will, it is fairly clear and sufficiently
carries out the legislative intent; it leaves no possible doubt as to the authenticity of the
document.

Garcia v Lacuesta, GR L-4067, November 29, 1951

https://engrjhez.wordpress.com/2017/08/14/in-the-matter-of-the-will-of-antero-mercado-
garcia-v-lacuesta-g-r-no-l-4067-november-29-1951/

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.

D. Agent Signing

Balonan v Abellana, GR L-15153, August 31, 1960

https://www.chanrobles.com/cralaw/1960augustdecisions.php?id=508

http://jayandes.blogspot.com/2011/06/balonan-vs-abellana-gr-no-l-15153.html

Barut v Cabacungan, GR L-6285, February 15, 1912

http://lawsandfound.blogspot.com/2013/02/barut-v-cabacungan-digest.html

pinagutusan na pumirma for the testator, no need to sign for himself

No will, except as provided in the preceding section, shall be valid to pass any
estate, real or personal, nor charge or effect 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 expenses direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of each. . . .
This is the important part of the section under the terms of which the court holds that the
person who signs the name of the testator for him must also sign his own name The
remainder of the section reads:

The attestation shall state the fact that the testator signed the will, or caused it to be
signed by some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in the
presence of each other. But the absence of such form of attestation shall not render
the will invalid if it is proven that the will was in fact signed and attested as in this
section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not.
The important thing is that it clearly appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and that they attested and subscribed it
in her presence and in the presence of each other. That is all the statute requires. It may be
wise as a practical matter that the one who signs the testator's name signs also his own; but
that it is not essential to the validity of the will. Whether one parson or another signed the
name of the testatrix in this case is absolutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows that the requirement laid down by the trial
court, if it did lay down, is absolutely unnecessary under the law; and the reasons underlying
the provisions of the statute relating to the execution of wills do not in any sense require
such a provision. From the standpoint of language it is an impossibility to draw from the
words of the law the inference that the persons who signs the name of the testator must sign
his own name also. The law requires only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is
unable to write may be signed by another by express direction to any instrument known to
the law. There is no necessity whatever, so far as the validity of the instrument is concerned,
for the person who writes the name of the principal in the document to sign his own name
also. As a matter of policy it may be wise that he do so inasmuch as it would give such
intimation as would enable a person proving the document to demonstrate more readily the
execution by the principal. But as a matter of essential validity of the document, it is
unnecessary. The main thing to be established in the execution of the will is the signature of
the testator. If that signature is proved, whether it be written by himself or by another at his
request, it is none the less valid, and the fact of such signature can be proved as perfectly
and as completely when the person signing for the principal omits to sign his own name as it
can when he actually signs. To hold a will invalid for the lack of the signature of the person
signing the name of the principal is, in the particular case, a complete abrogation of the law
of wills, as it rejects and destroys a will which the statute expressly declares is valid.

-------------

E. Manner of Signing

Nera v Rimando, GRL-5971, February 27, 2011

https://engrjhez.wordpress.com/2017/08/14/nera-v-rimando-g-r-no-l-5971-february-21-1911/

w/n nakita pumirma

Taboada v Rosal, GR L-36033, November 5, 1982

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 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 an 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.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it
a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig
that the signatures of the subscribing witnesses should be specifically located at the end of
the wig after the signature of the testatrix. He contends that it would be absurd that the
legislature intended to place so heavy an import on the space or particular location where
the signatures are to be found as long as this space or particular location wherein the
signatures are found is consistent with good faith and the honest frailties of human nature.

H:

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).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for
the defect in the place of signatures of the witnesses, he would have found the testimony
sufficient to establish the validity of the will.

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.

Icasiano v. Icasiano, GR L-18979 , June 30, 1964

F:

https://www.scribd.com/document/273295580/Icasiano-vs-Icasiano-1964
r:

https://engrjhez.wordpress.com/2017/08/14/icasiano-v-icasiano-g-r-no-l-18979-june-30-1964/

F. Pagination

Azuela v CA, GR 122880, April 12, 2006

https://pdfcoffee.com/azuela-vs-ca-2-pdf-free.html

G. Witnesses to a Will, Art 820, 821, 824

SUBSECTION 4. - Witnesses to Wills

Article 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)

Article 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)

Article 824. A mere charge on the estate of the testator for the payment of debts due at the
time of the testator's death does not prevent his creditors from being competent witnesses to
his will. (n)

                    1. Qualification / Disqualification of Witnesses1

Gonzales v CA, GR  L-37453, May 25, 1979

https://cookiedigests.tumblr.com/post/624966000466657280/digest-gonzales-vs-ca-gr-
no-l-37453-may-25

2. Duties of Witnesses

  Vda. De Ramos v CA, GR L-40804, January 31, 1978

In the case at bar, the s bear a disparity in the quality of the testimonies of Odon Sarmiento
and Rosendo Paz on one hand, and the Notary Public, Atty. Ricardo A. Barcenas, on the
other. The testimony of Odon Sarmiento was contradicted by his own admission. Though his
admission to the effect that "when Eugenia Danila signed the testament (he) and the two
other attesting witnesses Rosendo Paz and Calixto Azusada were present" (t.s.n., Feb. 12,
1970, p. 115) was made extrajudicially, it was not squarely refuted when inquired upon
during the trial. 

In this jurisdiction, all the attesting witness to a will if available, must be called to prove the
wilt Under this circumstance, they become "forced witnesses" " and their declaration
derogatory to the probate of the will need not bind the proponent hence, the latter may
present other proof of due exemption even if contrary to the testimony of or all of the at,
testing witness.   As a rule, if any or all of the submitting witness testify against the due
7

execution of the will, or do not remember having attested to it, or are otherwise of doubtful
ability, the will may, nevertheless, be allowed if the court is satisfied from the testimony of
other witness and from all the evidence presented that the will was executed and attested in
the manner by law.   Accordingly, although the subscribing witnesses to a contested will are
8

the best witness in connection with its due execution, to deserve full credit, their testimony
must be reasonable, and unbiased; if otherwise it may be overcome by any competent
evidence, direct or circubstantial. 
9

https://www.scribd.com/document/167612431/Vda-de-Ramos-vs-Court-of-Appeals

3. The Attestation Clause

 Fernandez v de Dios, GR L-21151, February 25, 1924

G.R. No. L-21151             February 25, 1924

In re will of Antonio Vergel de Dios, deceased.

RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.

Jesus Ocampo, Reyes & Imzon, Camus & Delgado and Gibbs & McDonough for appellants.
Eusebio Orense & Antonio M. Opisso for appellees.

ROMUALDEZ, J.:

The question in this case is as to the validity of the document Exhibit A as a will, which was
propounded by Ramon J. Fernandez for probate, and contested by Fernando Vergel de Dios
and Francisco, Ricardo and Virgilio Rustia, the court of First Instance of Manila having
denied its probate.

The applicant takes this appeal, assigning error to the action of the lower court in holding the
attestation fatally defective and in not finding Act No. 2645 void.

The defects attributed to the will by the contestants are as follows, to wit:

(a) It was not sufficiently proven that the testator knew the contents of the will.

(b) The testator did not sign all the pages of the will.

(c) He did not request anybody to attest the document as his last will.

(d) He did not sign it in the presence of any witness.

(e) The witnesses did not sign it in the presence of the testator, or of each other, nor
with knowledge on the part of the testator that they were signing his will.

(f ) The witnesses did not sign the attestation clause before the death of the testator.

(g) This clause was written after the execution of the dispositive part of the will and
was attached to the will after the death of the testator.

(h) The signatures of the testator on page 3 of Exhibit A are not authentic.

The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the testator,
the latter's mind was perfectly sane and he understood it: that he signed all the pages of the
will proper, although he did not sign the page containing the attestation clause; that while he
did not personally call the witnesses, yet the latter were invited by Attorney Lopez Lizo to act
as such in his presence. The law does not require that the testator precisely be the person to
request the witnesses to attest his will. It was also sufficiently established in the record,
beside being stated in the attestation clause, that the testator signed the will in the presence
of the three witnesses and that the latter, in turn, signed it in the presence of the testator and
of each other, the testator knowing that the witnesses were signing his will; that the
witnesses signed the attestation clause before the death of the testator; that this clause, with
the names of the witnesses in blank, was prepared before the testator signed the will, and
that the sheet containing said clause, just as those of the will proper, was a loose sheet, and
that all the four sheets of which the will Exhibit A was actually composed were kept together
and are the very ones presented in this case; and finally, that the signatures of the testator
on page 3 of said exhibit are authentic.

It thus appearing from the record that there are no such defects as those mentioned by the
opponents, and it having been proven that the testator executed said will in a language
known by him and consciously, freely and spontaneously, it would seen unnecessary to go
further, and the matter might be brought to a close right here, by holding the will in question
valid and allowable to probate, were it not for the fact that the trial court and the opponents
questioned the sufficiency and validity of the attestation clause because the sheet on which it
is written is not numbered, and it is not stated there that the testator signed on the margin of
each sheet of the will in the presence of the three witnesses, or that the latter signed it is the
presence of the testator and of each other, and specially because said attestation clause is
not signed by the testator either at the margin or the bottom thereof.

As to the numbering of the sheet containing the attestation clause, it is true that it does not
appeal on the upper part of the sheet, but it does not appear in its text, the pertinent part of
which is copied hereinafter, with the words, having reference to the number of sheets of the
will, underscored, including the page number of the attestation:

* * * We certify that the foregoing document written in Spanish, a language known by

the testator Antonino Vergel de Dios, consisting of three sheet actually used,
correlatively enumerated, besides this sheet . . . .

If, as stated in this clause, the foregoing document consists of three sheets, besides that of
the clause itself, which is in singular, it is clear that such a sheet of the attestation clause is
the fourth and that the will, including said sheet, has four sheets. This description contained
in the clause in question constitutes substantial compliance with the requirements prescribed
by the law regarding the paging. So it was held by this Court in the case of Abangan vs.
Abangan (40 Phil., 476), where the sheet containing the attestation, as well as the preceding
one, was also not paged. Furthermore the law, as we shall see later on, does not require that
the sheet containing nothing but the attestation clause, wholly or in part, be numbered or
paged. Consequently this lack of paging on the attestation sheet does not take anything from
the validity of the will.

Turning now to the question whether or not in this clause it is stated that the testator signed
on the margin of each sheet of the will, in the presence of the witnesses and the latter in the
presence of each other, let us see what is said in said clause on this point, and to this end its
pertinent part is hereinafter transcribed and is as follows:

* * * and he (the testator) signed at the bottom of the aforesaid will in our presence
and we at his request did the same in his presence and in that of each other as
witnesses to the will, and lastly, the testator, as well as we, as witnesses, signed in
the same manner on the left margin of each sheet. (Emphasis ours.)

The underscored phrase "in the same manner" cannot in the instant case mean, and it in fact
means nothing, but that the testator and the witnesses signed on the left margin of each
sheet of the will "in the same manner" in which they signed at the bottom thereof, that is, the
testator in the presence of the witnesses and the latter in the presence of the testator and of
each other. This phrase in the same manner cannot, in view of the context of the pertinent
part, refer to another thing, and was used here as a suppletory phrase to include everything
and avoid the repetition of a long and difficult one, such as what is meant by it. The same
section 618 of the Code of Civil Procedure, in order to avoid the repetition of the same long
phrase about the testator having signed in the presence of the witnesses and the latter in the
presence of each other, resorts to a similar expression in the second paragraph and says,
"as aforesaid."
Concerning the absolute absence of the signature of the testator from the sheet containing
the attestation clause, this point was already decided in the above cited case of Abangan vs.
Abangan, where this court held that:

The testator's signature is not necessary in the attestation clause because this, as its
name implies, appertains only to the witnesses and not to the testator.

In that case of Abangan vs. Abangan it was held that the signature of the testator is not
necessary in the attestation clause, but the theory is not announced that such a clause is
unnecessary to the validity to the will.

For this reason such doctrine does not annul the judgment in the case of Uy Coque vs.
Navas L. Sioca (43 Phil., 405), where in effect the doctrine, among others, was laid down
that the attestation clause is necessary to the validity of the will. One of the points on which
greatest stress was laid in that case Uy Coque is that the requirements of the law regarding
the number of the pages used, the signing of the will and of each of its pages by the testator
in the presence of three witnesses, and the attestation and signing of the will and of each of
its pages by the witnesses in the presence of each other cannot be proven aliunde but by
the attestation clause itself which must express the complaince of the will with such
requirements. But it was not held in that case of Uy Coque that the signature of the testator
was necessary in the attestation clause, nor was such point discussed there, which was the
point at issue in the case of Abangan vs. Abangan, supra.

The appellees, however, argue that such clause in the case of Abangan vs. Abangan begins
at the bottom and on the same sheet in which the testamentary provision terminated, that is
to say, the will properly speaking. Even then if it is intended to commit misrepresentation or
fraud, which are the things that with the requirements of the law for the making and attesting
of wills it is intended to avoid, it is just the same that the clause; as in the case of Abangan
vs. Abangan, begins at the bottom of the will properly speaking, as, like the case before us, it
is wholly contained in a separate sheet. The fact is that this separate sheet, containing the
attestation clause wholly or in part, is not signed any place by the testator in the case
of Abangan vs. Abangan, as it is not in the present case.

Section 618 of the code of Civil Procedure, as amended by Act No. 2645, contains three
paragraphs, of which the first enumerates in general terms the requirements to be met by a
will executed after said Code took effect, to wit, that the language or dialect in which it is
written be known by the testator, that it be signed by the latter or by another person in the
name of the testator by his express direction and in his presence, and that it be attested and
signed by three or more credible witnesses in the presence of the testator and of each other.

These general rules are amplified in the next two paragraphs as to the special requirements
for the execution of the will by the testator and the signing thereof by the witnesses, with
which the second paragraph of the section deals, and as to the attestation clause treated in
the third and last paragraph of said section 618.

For this reason the second paragraph of this section 618 says:

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, on
the left margin, and said pages shall be numbered correlatively in letters placed on
the upper part of each sheet.

These are the solemnities that must surround the execution of the will properly speaking,
without any reference whatsoever to the attestation clause not treated in this second
paragraph. It is in this second paragraph which deals only with the will (without including the
attestation clause), that the signature or name of the testator and those of the witnesses are
mentioned as necessary on the left margin of each and everyone of the sheets of the will
(not of the attestation clause), as well as the paging of said sheet (of the will, and not of the
attestation clause which is not yet spoken of).

Now, are the signatures of the testator and the paging of the will also necessary in the
attestation clause? Let us see the last paragraph of this section 618 of the Code which
already deals with the requirements for the attestation clause. This last paragraph reads
thus:

The attestation shall state the number of sheets or 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 three witnesses, and the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of each other.

As may be seen this last paragraph refers to the contents of the text of the attestation, not
the requirements or signatures thereof outside of its text. It does not require that the
attestation be signed by the testator or that the page or sheet containing it be numbered.

From this analysis of our law now in force it appears:

First. That the will must have an attestation clause as a complement, without which it
cannot be probate and with which only not aliunde (Uy Coque vs. Navas L.
Sioca , supra) may the requirements to be stated in its text be proven. The
attestation clause must be prepared and signed, as in the instant case, on the same
occasion on which the will is prepared and signed, in such a way that the possibility
of fraud, deceit or suppression of the will or the attestation clause be reduced to a
minimum; which possibility always exists, as experience shows, in spite of the many
precautions taken by the legislator to insure the true and free expression of one's last
will.

Second. That the will is distinct and different from the attestation, although both are
necessary to the validity of the will, similar, in our opinion, to a document which is not
public so long as it is not acknowledged before a notary, the document being a
distinct and different thing from the acknowledgment, each of which must comply
with different requisites, among which is the signature of the maker which is
necessary in the document but not in the acknowledgment and both things being
necessary to the existence of the public document.

Third. That the will proper must meet the requirements enumerated in the second
paragraph of section 618 of the Code of Civil Procedure.

Fourth. That the text of the attestation clause must express compliance with the
requirements prescribed for the will.

In the case at bar the attestation clause in question states that the requirements prescribed
for the will were complied with, and this is enough for it, as such attestation clause, to be
held as meeting the requirements prescribed by the law for it.

The fact that in said clause the signature of the testator does not appear does not affect its
validity, for, as above stated, the law does not require that it be signed by the testator.

We find no merit in the assignment of error raising the question as to the validity of Act No.
2645, which is valid. For the purposes of this decision, it is not necessary to reason out this
conclusion, it being sufficient for the adjudication of this case to hold the first error assigned
by the appellants to have been demonstrated.

The foregoing conclusions lead us to hold, as we do here by hold, that the documents
Exhibit A, as the last will and testament of the deceased Antonio Vergel de Dios, meets all
the requirements prescribed by the low now in force and therefore it must be allowed to
probate as prayed for by the petitioner.

The judgment appealed from is reversed, and it is ordered that the lower court proceed with
the probate of the will Exhibit A in accordance with law, without express pronouncement as
to costs. So ordered.

Street, Malcolm, Avanceña and Johns, JJ., concur.

Cagro v Cagro, GR L-5826, April 29, 1953

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 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.

 
4. Supervening Incompetency of Witnesses, Art 822
Article 822. If the witnesses attesting the execution of a will are competent at the time of
attesting, their becoming subsequently incompetent shall not prevent the allowance of the
will. (n)

  5. Competency of Interested Witnesses, Art 823

Article 823. If a person attests the execution of a will, to whom or to whose spouse, or
parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far
only as concerns such person, or spouse, or parent, or child of such person, or any one
claiming under such person or spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such person so attesting shall be admitted
as a witness as if such devise or legacy had not been made or given. (n)

  H. The Notary Public, Art 806

Article 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)

Guerrero v Bihis, GR 174144, April 17, 2007

https://ibpzn.com/guerrero-v-bihis/

notarizing atty acknowledged the will outside of his jurisdiction/ will not valid

Lee v Tambago, AC 5281, February 12, 2008

Gabucan v Manta, GR L-51546, January 28, 1980

https://engrjhez.wordpress.com/2017/08/14/gabucan-v-judge-manta-g-r-no-l-51546-
january-28-1980/

Javellana vs. Ledesma, GR L-7179,  June 30, 1955

http://lawtechworld.com/blog/blog/2013/06/case-digest-javellana-v-ledesma-
97258/

Cruz v Villasor, GRL-32213, November 26, 1973

 
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november-26-1973/
agapita spouse
Furthermore, the function of a notary public is, among others, to guard against
any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G. 583.) That
function would be defeated if the notary public were one of the attesting or
instrumental witnesses. For them he would be interested in sustaining the
validity of the will as it directly involves himself and the validity of his own act. It
would place him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud (Report of the Code Commission p.
106-107), would be thwarted.

I. Special Requirements for Handicapped Testators, Art 807, 808

Article 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)

Article 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 v Vasquez, GR L-26884, April 30, 1973 (consolidated with  GR   L-26615)

https://ibpzn.com/garcia-v-vasquez/

The foregoing testimony of the ophthalmologist who treated the deceased and,
therefore, has first hand knowledge of the actual condition of her eyesight from
August, 1960 up to 1963, fully establish the fact that notwithstanding the
operation and removal of the cataract in her left eye and her being fitted with
aphakic lens (used by cataract patients), her vision remained mainly for viewing
distant objects and not for reading print. Thus, the conclusion is inescapable that
with the condition of her eyesight in August, 1960, and there is no evidence that
it had improved by 29 December 1960, Gliceria del Rosario was incapable f
reading, and could not have read the provisions of the will supposedly signed by
her on 29 December 1960. It is worth noting that the instrumental witnesses
stated that she read the instrument "silently" (t.s.n., pages 164-165). which is a
conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the

appearance of the will, Exhibit "D", acquires striking significance. Upon its face,
the testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, to much so that the words had to
be written very close on the top, bottom and two sides of the paper, leaving no
margin whatsoever; the word "and" had to be written by the symbol" &",
apparently to save on space. Plainly, the testament was not prepared with any
regard for the defective vision of Doña Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for
"acknowledge’’, remained uncorrected, thereby indicating that execution thereof
must have been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of one’s worldly
possessions should be embodied in an informal and untidily written instrument;
or that the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so. The
record is thus convincing that the supposed testatrix could not have physically
read or understood the alleged testament, Exhibit "D", and that its admission to
probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange
flowers and attend to kitchen tasks shortly prior to the alleged execution of the
testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in
no way proves; that she was able to read a closely typed page, since the acts
shown do not require vision at close range. It must be remembered that with the
natural lenses removed, her eyes had lost the power of adjustment to near
vision, the substituted glass lenses being rigid and uncontrollable by her. Neither
is the signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see
at normal reading distances. Writing or signing of one’s name, when sufficiently
practiced, becomes automatic, so that one need only to have a rough indication
of the place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph, Exhibit
"O", et seq., reinforces the contention of oppositors that the alleged testatrix
could not see at normal reading distance: the signatures in the checks are
written far above the printed base, lines, and the names of the payees as well as
the amounts written do not appear to be in the handwriting of the alleged
testatrix, being in a much firmer and more fluid hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria
del Rosario was, as appellant oppositors contend, not unlike a blind testator, and
the due execution of her will would have required observance of the provisions of
Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by
one of the subscribing witnesses, and again, by the notary public before whom
the will is acknowledged." cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will himself (as when he is illiterate), 18 is to
make the provisions thereof known to him, so that he may be able to object if
they are not in accordance with his wishes. That the aim of the law is to insure
that the dispositions of the will are properly communicated to and understood by
the handicapped testator, thus making them truly reflective of his desire, is
evidenced by the requirement that the will should be read to the latter, not only
once but twice, by two different persons, and that the witnesses have to act
within the range of his (the testator’s) other senses. 19

In connection with the will here in question, there is nothing in the records to
show that the above requisites have been complied with. Clearly, as already
stated, the 1960 will sought to be probated suffers from infirmity that affects its
due execution.

Alvarado v Gaviola, GR 74695, September 14, 1993

FACTS:

On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will

entitled “Huling Habilin” wherein he disinherited an illegitimate son, petitioner
Cesar Alvarado, and expressly revoked a previously executed holographic will at
the time awaiting probate before the RTC of Laguna.
 According to Bayani Ma. Rino, private respondent, he was present when
the said notarial will was executed, together with three instrumental witnesses
and the notary public, where the testator did not read the will himself, suffering
as he did from glaucoma.
Rino, a lawyer, drafted the eight-page document and read the same aloud before
the testator, the three instrumental witnesses and the notary public, the latter
four following the reading with their own respective copies previously furnished
them.

Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng Ilang

Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni
Brigido Alvarado” was executed changing some dispositions in the notarial will to
generate cash for the testator’s eye operation.
Said codicil was likewise not read by Brigido Alvarado and was read in the same
manner as with the previously executed will.

When the notarial will was submitted to the court for probate, Cesar
Alvarado filed his opposition as he said that the will was not executed and
attested as required by law; that the testator was insane or mentally incapacitated
due to senility and old age; that the will was executed under duress, or influence
of fear or threats; that it was procured by undue pressure and influence on the
part of the beneficiary; and that the signature of the testator was procured by
fraud or trick.

ISSUE:

W/N notarial will of Brigido Alvarado should be admitted to probate despite

allegations of defects in the execution and attestation thereof as testator was
allegedly blind at the time of execution and the double-reading requirement
under Art. 808 of the NCC was not complied with.

HELD:

YES. The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial requirements of
law in order to insure the authenticity of the will, the formal imperfections should
be brushed aside when they do not affect its purpose and which, when taken into
account, may only defeat the testator’s will.

Cesar Alvardo was correct in asserting that his father was not totally blind
(of counting fingers at 3 feet) when the will and codicil were executed, but he can
be so considered for purposes of Art. 808.

That Art. 808 was not followed strictly is beyond cavil.

However, in the case at bar, there was substantial compliance where the
purpose of the law has been satisfied: that of making the provisions known to the
testator who is blind or incapable of reading the will himself (as when he is
illiterate) and enabling him to object if they do not accord with his wishes.
Rino read the testator’s will and codicil aloud in the presence of the testator, his
three instrumental witnesses, and the notary public.

Prior and subsequent thereto, the testator affirmed, upon being asked, that
the contents read corresponded with his instructions.

Only then did the signing and acknowledgment take place.

There is no evidence that the contents of the will and the codicil were not
sufficiently made known and communicated to the testator.
With four persons, mostly known to the testator, following the reading word for
word with their own copies, it can be safely concluded that the testator was
reasonably assured that what was read to him were the terms actually appearing
on the typewritten documents.

The rationale behind the requirement of reading the will to the testator if
he is blind or incapable of reading the will to himself (as when he is illiterate), is
to make the provisions thereof known to him, so that he may be able to object if
they are not in accordance with his wishes.

Although there should be strict compliance with the substantial

requirements of law in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the testator’s will.

J. Rule of Substantial Compliance, Art 809

Article 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 v Murciano, GR L-3362, March 1, 1951

Caneda v CA, GR 103554, May 28, 1993