Suroza v. Hon. Honrado | AM No.2026 | 12-19-1981| Testamentary 7. Marilyn used the surname Suroza.
sed the surname Suroza. She stayed with Marcelina but was not
Succession | ABALOS1
That question arises under the pleadings filed in the testate case and in the
certiorari case in the CA which reveal the following tangled strands of human
relationship
MEM AID
Anak anakan vs. “Legitimate Heir”, Igorot Illiterate testatrix thumb marked a
will
BRIEFER
The legitimate heirs of Marcelina wanted a probate of will which was granted
even if there was a subsequent opposition to the same by the “anak anakan” of
Marcelina, ergo the case filed against the Judge for probating the same.
DOCTRINE article 804 of the Civil Code that every will must be executed in a
language or dialect known to the testator.
FACTS
1. MAURO SUROZA2 married MARCELINA SALVADOR in 1923. 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.
2. Mauro died in 1942. Marcelina became a pensioner. That explains why on
her death she had accumulated some cash in 2 banks.
3. 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.
4. A woman named ARSENIA DE LA CRUZ wanted also to be his guardian in
another proceeding. Arsenia tried to prove that Nenita was living separately
from Agapito and that Nenita admitted to Marcelina that she was
unfaithful to Agapito.
5. JUDGE BIENVENIDO A. TAN dismissed the 2nd guardianship proceeding
and confirmed Nenita's appointment as guardian of Agapito.
6. Sps. ANTONIO SY and HERMOGENA TALAN begot a child named
MARILYN SY, who was entrusted to ARSENIA DE LA CRUZ (apparently
a girlfriend 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.
1 5
This case is rly long guys
2 6
a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley
legally adopted by Agapito. She married OSCAR MEDRANO.Marcelina
supposedly executed a notarial will in Manila when she was 73 years
old. That will which is in English was thumbmarked by her. She was
illiterate. Marcelina bequeathed all her estate to her supposed
granddaughter MARILYN.
8. Marcelina died. She owned a 150-square meter lot and house in Makati.
MARINA PAJE3, was the alleged executrix in her will4 she filed a petition
for the probate of Marcelina's alleged will.
9. As there was no opposition Judge Honrado appointed Marina as
administratrix and issued 3 orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw
the sum of P10,000 from the savings accounts of Marcelina and Marilyn
Suroza and to eject the occupants of the testatrix's house, among whom
was Nenita V. Suroza, and to place Marina in possession thereof.
10. Nenita, alerted, was prompted to file a motion to set aside the judgment,
alleging 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.
11. In spite of the fact that Judge Honrado was already apprised that persons,
other than Marilyn, were claiming Marcelina's estate, he issued an order
probating her supposed will wherein Marilyn was the instituted
heiress.
12. Nenita filed numerous orders5 and filed an opposition to the probate of the
will and a counter-petition for letters of administration assailing the due
execution of the will and stated the names and addresses of Marcelina's
intestate heirs, her nieces and nephews. Nenita was not aware of the earlier
decree of probate6.
13. Marina admitted that Marilyn was not Marcelina's granddaughter but was
the daughter of Agapito and Arsenia de la Cruz and that Agapito was not
Marcelina's son but merely an ANAK-ANAKAN who was not legally
adopted.
14. Judge Honrado dismissed Nenita's counter-petition for the issuance of letters
of administration because of the non-appearance of her counsel at the
hearing. Nenita contended that 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. Nenita "filed a case to annul" the probate proceedings which
Judge Honrado dismissed.
3
a laundrywoman
4
(the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband)
ejectment order, motion to set aside proceedings
dated April 23, 1975
1
15. Nenita charged Judge Honrado with having probated the fraudulent will
of Marcelina. The complainant reiterated her contention that the testatrix
was illiterate as shown by the fact that she affixed her thumbmark to the
will and that she did not know English, the language in which the win was
written.
16. Nenita further alleged that Judge Honrado, in spite of his knowledge that
the testatrix had a son named Agapito (the testatrix's supposed sole
compulsory and legal heir), who was preterited in the will, did not take into
account the consequences of such a preterition. Nenita denounced
Judge Honrado for having acted corruptly in allowing Marina and her cohorts
to withdraw from various banks the deposits Marcelina.
17. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she
(Evangeline) said that the sum of P10,000 was needed in order that Nenita
could get a favorable decision. Evangeline also denied that she has any
knowledge of Nenita's pension.
ISSUE(S): W/N 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. (YES)
CASE ESCALATION
CA: dismissed the petition because Nenita's remedy was an appeal and her
failure to do so did not entitle her to resort to the special civil action of certiorari7
HELD: WHEREFORE, for inefficiency in handling the testate case of Marcelina
S. Suroza, a fine equivalent to his salary for one month is imposed on respondent
judge
1. The judge’s improper disposition of the testate case 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.
2. A judge may be criminally liable or knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence
or ignorance8 Arts. 204 to 206, Revised Penal Code).
3. Administrative action may be taken against a judge of the court of first
instance for serious misconduct or inefficiency. Misconduct implies malice or
a wrongful intent, not a mere error of judgment.
4. Inefficiency implies negligence, incompetence, ignorance and carelessness. A
judge would be inexcusably negligent if he failed to observe in the
7 9
raffled to CA agad
8
Articles 204 to 206 RPC
performance of his duties that diligence, prudence and circumspection which
the law requires in the rendition of any public service.
5. 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.
6. 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". 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.9
7. 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.
8. In spite of the absence of an opposition, judge should have personally
conducted the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed.
9. Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.
GARCIA V. LACUESTA | L-4067 | November 29, 1951| Concept of Wills;
Testamentary Capacity and Intent; Notarial Wills’ Witnesses to Wills |
Jessica Clemente
This is a petition to disallow the will of Antero Mercado for not being in
compliance with the formalities of will prescribed by Law.
MEM AID
CROSS NOT SIGNATURE.
BRIEFER
Petitioners appeal to the SC because the CA disallowed the probation of the will
as it was considered to be defective. The attestation clause failed to expressly
state that the testator personally asked his counsel to sign on his behalf.
Moreover, petitioners argue that a cross is just as much as a signature than a
thumbmark. The SC ruled that absent an express mention of the first act, the will
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".
2
cannot be valid. Moreover, a cross is not a valid signature as the trustworthiness
of the signature itself shall be exposed to dispute.
DOCTRINE
1. 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.
2. Where the cross appearing on a will is not the usual signature of the testator or
even one of the ways by which he signed his name, the cross cannot be considered
a valid signature.
FACTS
Petitioners received an unfavorable decision from the CA when it
disallowed the will of Antero Mercado to be probated as it is considered to be
defective. It gave its decision on the following grounds:
a. The attestation clause failed 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 decedent in the presence of the testator and
each and every one of the witnesses;
b. The attestation clause failed 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 the end; and
c. The attestation clause failed to certify that the three witnesses signed
the will in all the pages thereon in the presence of the testator and of each other.
Petitioners now come to court arguing that there is no need for an
express mention that the testator personally requested his counsel to sign on his
behalf given that since a cross was already written under his name, it is deemed
to be a sufficient signature and that the attachment of Atty. Javier’s signature is
a mere surplusage. They further argue that a cross is as much as a signature as a
thumbmark.
ISSUE(S): W/N there is indeed a defect in the formalities of the will. (YES)
HELD:
1. The attestation clause is fatally defective for failing to state that
Antero Mercado caused his counsel, Atty. Javier, to write the testator’s name
under his express direction, as required by Section 618 of the Code of Civil
Procedure.
2. The cross cannot and does not have the trustworthiness of a
thumbmark. 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.
MATIAS V. SALUD | L-10751 | June 23, 1958| Concept of Wills;
Testamentary Capacity and Intent; Notarial Wills’ Witnesses to Wills |
Jessica Clemente
This is a petition to enforce the validity of the will of Gabina Raquel despite the
presence of a thumbprint as her signature.
MEM AID
THUMBPRINT IS A SIGNATURE!
BRIEFER
The testator had to put her thumbmark instead of her actual signature on her
last will because she was suffering from herpes zoster, an illness that restricts
her movement due to severe pain. When her will was to undergo probate
proceedings, this was opposed by her niece claiming that the thumbprint was not
a valid signature. The Supreme Court provided the exception to the doctrine laid
down in Garcia v. Lacuesta by stating that for exceptional cases, a thumbprint
can be considered a valid form of signature.
DOCTRINE In the absence of a valid and medical reason to sign a will, a thumb
mark cannot be considered a valid form of signature.
FACTS
1. Prior to her death, Gabina Raquel was able to draft her will in the presence of
three witnesses and an attorney. After her counsel read the will to her, Raquel
manifested conformity thereto and thumb marked the foot of the document and
the left margin of each page.
2. Upon her counsel’s insistence, she attempted to sign the will using a fountain
pen, but was only able to affix the signature at the end of the testamentary
dispositions because immediately thereafter, she felt a pang on her shoulder as
she was then suffering from an illness called herpes zoster.
3. 20 minutes have passed when, Raquel’s counsel, seeing that she could no
longer proceed to the manual signing, instructed one of the witnesses, Lourdes
Samonte, to write “Gabina Raquel by Lourdes Samonte” next to each thumbmark.
4. When Raquel passed away, she left no ascendants or descendants save her
niece, Basilia Salud. When the witnesses proceeded with the probate of the will,
3
Salud opposed this. The judge ruled in favor of Salud on numerous grounds, one
of which was that the fingermark of Raquel cannot be regarded as her valid
signature since it does not show distinct identifying ridge lines and that the
attestation clause should be held defective because it failed to state that Lourdes
Samonte signed for the testator.
ISSUE(S): W/N a thumbprint is considered a valid signature. (YES)
HELD:
1. The legal requisite that the will should be signed by the testator is satisfied by
a thumbprint or other mark affixed by him; and that where such mark is affixed
by the decedent, it is unnecessary to state in the attestation clause that another
person wrote the testator’s name at his request.
2. While the Supreme Court in the case of Garcia v. Lacuesta ruled that probate
shall not prosper where a will was signed with a cross written after the testator’s
name is not a sufficient signature, it explained that in that case, there was no
showing that the cross mark was the testator’s habitual signature nor was any
explanation given why he should use a cross when he knew how to sign.
3. Compared to the case now, it was shown that herpes zoster made writing
difficult and painful for Raquel to write to the extent that while writing on the
will, she was constrained to drop her pen because of the excruciating pain.
Beatriz Nera v. Narcisa Rimando | G.R. No. L-5971 | 02-27-1911 |
Testamentary Succession > Witnesses to Wills | Jon de Guia
The case appears to be an appeal10 from the Trial Court11 to the Supreme Court,
wherein a question of fact was raised
MEM AID
Nakita ba Nera (nila) yung isa’t-isa nung pirmahan?
BRIEFER
Testator and witnesses signed a will, but their line of vision of each other is in
dispute. At issue is the proper test to determine if the testator and the witnesses
10
The actual nature of the case is not specified
11
The case refers to the lower court only as the “trial court”
to an instrument attached their signature in the presence of each other, which is
a prerequisite for the validity of the will. SC said that if, “by merely casting
[their] eyes in the proper direction they could have seen each other sign”, they
would be considered to be in each other’s presence. Here, they were just in one
room and thus, could have seen each other sign.
DOCTRINE
…the question whether the testator and the subscribing witnesses to an alleged
will [signed] 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
[their] eyes in the proper direction they could have seen each other sign.
FACTS
 Testator12 executed a will
 There were witnesses13 to its execution, and those witnesses subsequently
ascribed their signatures to the will
 Appellant Rimando argued that one witness was in a different room (outer
room) when the other witnesses and the testator signed the will (inner room)
 The dispute, thus, is in whether or not the witnesses were in the same room
as the Testator when the will was executed, and whether or not they could
have seen each other sign
 Without explaining, majority of the members of the SC opined that they all
were in the small room, but the resolution of the case does not stop with this
factual finding.14
ISSUE(S): What is the test to determine if the execution of a will had been done
“in the presence of” witnesses?
CASE ESCALATION
Trial Court: Ruled in favor of Nera, the appellee and found that the will was
executed in the presence of witnesses; TC said that, should there be a finding that
the testator was in a different room (inner room) as the witnesses (outer room), it
would not “be sufficient in itself to invalidate the execution of the will”
HELD:
Trial Court is affirmed,15 ultimately ruling in favor of Nera, the appellee
12
Name not specified in the original
13
Names also were left unspecified
14
I italicized this because right now, as a general rule, SC does not decide factual
issues but here, the ponencia categorically considered this to be a “question of fact
of vital importance in the determination of this case”.
4
 Facts: 312 SCRA 333
Refer to the DOCTRINE for the proper test, which the Court based on Jaboneta
Facts: Celso Icasiano, filed a petition for the probate of the will of Josefa
v. Gustilo.
Villacorte and for his appointment as executor thereof. Fortunately, before she
died, executed a will in Tagalog, and through the help of her lawyer, it was
As earlier stated, the majority found that everyone was in one small room at the
prepared in duplicates, an original and a carbon copy.
time of all of their acts of signing.
On the day that it was subscribed and attested, the lawyer only brought the
However, assuming arguendo that one witness was in a different room (outer
original copy of the will while the carbon duplicate (unsigned) was left in Bulacan.
room) from the rest (inner room), it would have been, contrary to the finding of
One of the witnesses failed to sign one of the pages in the original copy but
the Trial Court, invalid as a will for the witnesses’ and testator’s acts of signing
admitted he may have lifted 2 pages simultaneously instead when he signed the
not being done “in the presence” of the lone witness in the other room. A curtain
will. Nevertheless, he affirmed that the will was signed by the testator and other
would have obstructed their view of each other “at the moment of inscription of
witnesses in his presence.
each signature.”

NOTES
Issue: Whether or not the failure of one of the subscribing witnesses to affix his
 I think the test is the only important thing here
signature to a page is sufficient to deny probate of the will

Held: No, The Supreme court held that the failure to sign was entirely through
pure oversight or mere inadvertence. Since the duplicated bore the required
Icasiano v Icasiano| G.R. No. L018979 | 06-30-1964 | Notarial Will| Alexis
signatures, this proves that the omission was not intentional. Even if the original
A. Hiceta
is in existence, a duplicate may still be admitted to probate since the original is
Appeal from an order of the Court of First Instance of Manila admitting to deemed to be defective, then in law, there is no other will bu the duly signed
probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the carbon duplicate and the same can be probated.
true last will and testament of Josefa Villacorte, deceased, and appointing as
executor Celso Icasiano, the person named therein as such. The law should not be strictly and literally interpreted as to penalize the testatrix
on account of the inadvertence of a single witness over whose conduct she has no
This special proceeding was begun on October 2, 1958 by a petition for the control of. Where the purpose of the law is to guarantee the identity of the
allowance and admission to probate of the original, Exhibit "A" as the alleged will testament and its component pages, and there is no intentional or deliberate
of Josefa Villacorte, deceased, and for the appointment of petitioner Celso deviation existed.
Icasiano as executor thereof.

BRIEFER
The failure to sign was entirely through the pure oversight or mere inadvertence.
Since the duplicated copy bore the required signatures, this proves that the
omission was not intentional.
DOCTRINE
The law should not be strictly and literally interpreted as to penalize the testatrix
on account of the inadvertence of a single witness over whose conduct she has no
control of. Where the purpose of the law is to guarantee the identity of the
testament and its component pages, no intentional or deliberate deviation existed.
Note: This ruling should not be taken as a departure from the rules that the will
should be signed by the witnesses on every page. The carbon copy duplicate was
regular in all respects.
Testate Estate of the Late Apolinaria Ledesma. Felicidad Javellana v.
Doña Matea Ledesma | G.R. No. L-7179 | 06-30-1955 | Testamentary
Succession | Sarah Ganto
This is an appeal made directly to this Court from the decision of the CFI.
MEM AID

Codicil patago pinirmahan ni notary

15
Affirmed, but the SC disagreed with its finding that it did not matter if the
BRIEFER
witnesses and testators were in different rooms
5
The CFI admitted to probate the testament and codicil duly executed by deceased.
Matea Ledesma, sister and nearest surviving relative of deceased, appealed on
the ground that, among others, the codicil was rendered invalid and ineffective
because the notary did not sign the certification of acknowledgment in the
presence of the testatrix and the witnesses. The SC affirmed the CFI, ruling that
at any rate, 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, the NCC does not require that the signing of
the testator, witnesses and notary should be accomplished in one single act.
DOCTRINE
The subsequent signing and sealing by the notary of his certification 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.
FACTS
 The CFI admitted to probate the testament and codicil duly executed by the
deceased Apolinaria Ledesma Vda. de Javellana with Ramon Tabiana, Gloria
Tabiana and Vicente Yap as witnesses.
 Matea Ledesma, sister and nearest surviving relative of deceased, appealed,
insisting that the documents were not executed in conformity with law.
 The most important variation noted by the contestants concerns the signing
of the certificate of acknowledgment appended to the Codicil. Unlike the
testament, this codicil was executed after the enactment of the NCC, and,
therefore, had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses asserted that after the codicil had been signed by the
testatrix and witnesses, the same was signed and sealed by notary public
Gimotea on the same occasion. On the other hand, Gimotea affirmed that he
did not do so, but brought the codicil to his office, and signed and sealed it
there.
ISSUE: WON the codicil was rendered invalid and ineffective because the notary
did not sign the certification of acknowledgment in the presence of the testatrix
and the witnesses – No.
CASE ESCALATION
CFI: ruled in favor of the Testate Estate of the Late Apolinaria Ledesma
HELD:
The decision admitting the will to probate is affirmed, with costs against
appellant.
At any rate, 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, the NCC 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 NCC 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. This was done in the case before us. The
subsequent signing and sealing by the notary of his certification 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. Article
806 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 v CA| G.R. No. 103554 | 05-23-1993 | Notarial Will | Alexis A.
Hiceta
Presented for resolution by this Court in the present petition for review
on certiorari is the issue of whether or not the attestation clause contained in the
last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code
BRIEFER
The attestation clause 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.
DOCTRINE
The will must be acknowledged before a notary public by the testator and the
attesting witnesses. The attestation clause need not be written in a language
known to the testator or even to the attesting witnesses. Moreover, the
attestation clause provides strong legal guaranties for the due execution of a will
and to insure the authenticity thereof.
FACTS
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 before 3 witnesses.
6
He was assisted by his lawyer, Atty. Emilio Lumontad. In the will, it was
declared that the testator was leaving by way of legacies and devises his real and
personal properties to several people all of whom do not appear to be related to
the testator.
4 months later, Mateo Caballero himself filed a case seeking the probate of his
last will and testament, but numerous postponements pushed back the initial
hearing of the probate court regarding the will. However, on May 29, 1980, the
testator passed away before his petition could finally be heard by the probate
court.
Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special
administrator of the testator’s estate. Hereafter, the petitioners, claiming to be
nephews and nieces of the testator, instituted a second petition for intestate
proceedings. They also opposed the probate of the testator’s will and
the appointment of a special administrator for his estate.
Benoni Cabrera died and was replaced by William Cabrera as special
administrator and gave an order that the testate proceedings for the probate of
the will had to be heard and resolved first.
In the course of the proceedings, petitioners opposed to the allowance of
the testator’s will on the ground that on the alleged date of its execution,
the testator was already in poor state of health such that he could not
have possibly executed the same. Also the genuineness of the signature
of the testator is in doubt.
On the other hand, one of the attesting witnesses and the notary public testified
that the testator executed the will in question in their presence while he was of
sound and disposing mind and that the testator was in good health and was not
unduly influenced in any way in the execution of his will.
Probate court then rendered a decision declaring the will in question as the last
will and testament of the late Mateo Caballero.
CA affirmed the probate court’s decision stating that it substantially complies
with Article 805. Hence this appeal.
ISSUE: Whether or not the attestation clause in the will of the testator is
fatally defective or can be cured under the art. 809.
HELD
No. The Supreme Court said that it does not comply with the provisions of the
law.
Ordinary or attested wills are governed by Arts. 804 to 809. The will must be
acknowledged before a notary public by the testator and the attesting witnesses.
The attestation clause need not be written in a language known to the testator or
even to the attesting witnesses.
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 contended by petitioners that the attestation clause in the will failed to
specifically state the fact that the attesting witnesses witnessed the testator sign
the will and all its pages in their presence and that they, the witnesses, likewise
signed the will and every page thereof in the presence of the testator and of each
other. And the Court agrees.
The phrase, “and he has signed the same and every page thereof, on the space
provided for his signature and on the left hand margin,” obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words” as his last will and testament.”
Clearly lacking is the statement that the witnesses signed the will and every page
thereof in the presence of the testator and of one another. That the absence of the
statement required by law is a fatal defect or imperfection which must necessarily
result in the disallowance of the will that is here sought to be probated.
Also, Art. 809 does not apply to the present case because the attestation clause
totally omits the fact that the attesting witnesses signed each and every page of
the will in the presence of the testator and of each other. The defect in this case is
not only with respect to the form or the language of the attestation clause. The
defects must be remedied by intrinsic evidence supplied by the will itself which is
clearly lacking in this case.
Therefore, the probate of the will is set aside and the case for the intestate
proceedings shall be revived.
Article 809 cannot be used to cure the defects of the will when it does not pertain
to the form or language of the will. This is because there is not substantial
compliance with Article 805
In the Matter of the Petition for the Probate of the Will of Dorotea Perez
(Deceased), Apolonio Taboada v. Hon. Avelio S. Rosal | G.R No L-36033 |
November 5, 1982 | Testamentary Succession | Ricardo Francisco D.
Puno
Briefer:
Petitioner filed a petition with the CFI for the probate of a will of the
deceased. The will was composed of two pages, the first page contains the entire
testamentary provisions and is signed at the bottom of the page by the testatrix
7
alone and at the left hand margin by the three instrumental witnesses. The
second page that contains the attestation clause and acknowledgement is signed
at the end of the said clause by the three attesting witnesses and at the left hand
margin by the testatrix. The CFI denied the probate for failing to comply with the
formalities set forth in NCC 805. SC granted the petition as it held that so far as
the requirement of subscription is concerned, the manner that it was done in this
case satisfies the purpose of identifying the will
Doctrine:”…. While the perfecton in the drafting of the will may be desirable,
unsubstantial departure from the usual forms should be ignored, especially when
the authenticity is of the will is not assailed (Gonzales v. Gonzales, 90 Phil, 444,
449)”
Facts:
1. Petitioner filed a petition with the CFI for the probate of the will of the
deceased.
2. The will was composed of two pages, the first page contains the entire
testamentary provisions and is signed at the bottom of the page by the
testatrix alone and at the left hand margin by the three instrumental
witnesses. The second page that contains the attestation clause and
acknowledgement is signed at the end of the said clause by the three
attesting witnesses and at the left hand margin by the testatrix.
3. The CFI denied the probate for failing to comply with the formalities set
forth in NCC 805. Hence this petition.
4. Respondent judge argues that it is not enough that only the testatrix
signs at the end, but the three subscribing witnesses must also sign at
the same place, in the presence of the testatrix and of one another. It is
not sufficient compliance to sign the page, where the end of the will is
found at he left hand margin of that page
5. Petitioner argues that NCC 805 does not make it a condition precedent
for the extrinsic validity of the will that the signatures of the subscribing
witnesses should be specifically located at the end of the will after the
signature of the testatrix.
Issues: W/N Petitioner’s failure to comply with the formalities in NCC 805 is
fatal to the probate of the will
Case Escalation: CFI denied the probate.
Held: Petition is granted. Orders of the respondent court which denied the
probate of the will, the motion for reconsideration of the denial of the probate, and
the motion for appointment of a special administrator are set aside
Notes:
1. The court gives an explanation of what the terms Attested and
Subscribed as used in NCC 805. Attestation consists in witnessing the
testator’s execution of the will in order to see and take note mentally
what those things are. Subscription is the signing of the witnesses’
names upon the same page for the purpose of identification of such paper
as the will which was executed by the testator.
Alvarado v Gaviola | G.R. No. 74695 |Sept. 14, 1993 | Testamentary
Succession | Chesca S.
Before us is an appeal from the Decision dated 11 April 1986 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament with codicil of the
late Brigido Alvarado.
MEM AID
The double-reading requirement for testator with Glaucoma but not entirely
blind.
BRIEFER
Testator Brigido Alvarado had poor eyesight due to glaucoma during the
execution of his notarial will and a codicil which amended the notarial will.
Petitioner, his illegitimate child who was disinherited in the notarial will,
opposed the probate of the notarial will alleging that Art. 808 of the CC was not
complied with. The SC ruled that although testator was not entirely blind, he had
poor eyesight and thus, the reading aloud of the draft by testator’s lawyer in the
presence of three witnesses and the notary public was considered as substantial
compliance of Art. 808.
DOCTRINE
The topic-related doctrine in verbatim.
FACTS
 79-year old Brigido Alvarado executed a notarial will (“Huling Habilin”)
wherein he disinherited an illegitimate son (petitioner) and expressly revoked
a previously executed holographic will at the time awaiting the probate
before RTC Laguna.
 Three instrumental witnesses, the notary public, and private respondent
(lawyer) testified that the testator did not read the final draft or the will
himself. Instead, the lawyer who drafted the 8-paged document, read the
same aloud while the other four followed the reading with their own copies.
 Meanwhile, Brigido’s holographic will was subsequently admitted to probate
on Dec. 9, 1977. On Dec. 29, a codicil entitled "Kasulatan ng Pagbabago sa
8
 Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre
5, 1977 ni Brigido Alvarado" was executed to change some dispositions in the
notarial will to generate cash for the testator’s eye operation (for Glaucoma).
 The testator died on Jan. 3, 1979. A petition for the probate of the notarial
will was filed by private respondent as executor.
 Petitioner filed an opposition.16
 A Probate Order was issued. Petitioner appealed on the ground that the
deceased was blind within the meaning of the law at the time his Huling
Habilin and the codicil attached was executed. Thus, the probate should be
denied for not complying with Art. 808 of the CC.
 CA: Testator was not entirely blind during the execution of the documents;
there was substantial compliance of Art. 808 since its purpose of making
known to the testator the contents of the drafted will was served.
ISSUE(S): Whether the foregoing circumstances would qualify Brigido as a
"blind" testator under Art. 808
HELD: WHEREFORE, the petition is DENIED and the assailed Decision
of respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
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.
There is no dispute on the following facts: 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 on 14 December 1977.
Regardless of respondent's staunch contention that the testator was still capable
of reading at the time his will and codicil were prepared, the fact remains and
this was testified to by his witnesses, that Brigido did not do so because of his
"poor," "defective," or "blurred" vision making it necessary for private respondent
to do the actual reading for him.
Garcia v. Vasquez: 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), 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…
16 on the following grounds: that the will sought to be probated was not executed and attested as
required by law; that the testator was insane or otherwise mentally incapacitated to make a will at
the time of its execution due to senility and old age; that the will was executed under duress, or
influence of fear and threats; that it was procured by undue and improper pressure and influence on
the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that
the signature of the testator was procured by fraud or trick.
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)." Since Brigido Alvarado was incapable of reading the final drafts of his
will and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to conclude
that Brigido Alvarado comes within the scope of the term "blind" as it is used in
Art. 808. Unless the contents were read to him, he had no way of ascertaining
whether or not the lawyer who drafted the will and codicil did so conformably
with his instructions. Hence, to consider his will as validly executed and entitled
to probate, it is essential that we ascertain whether Art. 808 had been complied
with.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being that
the solemnities surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege.
In the case at bar, private respondent 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 acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to
the "Huling Habilin," the day of the execution was not the first time that Brigido
had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes
even prior to 5 November 1977 when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity to the draft.
Garcia v. Vasquez| G.R. No. L-26615 | 04-30-1970 | Testamentary
Succession | A. Tolentino
This is an appeal from the order of the Court of First Instance of Manila admitting
to probate the alleged last will and testament of the late Gliceria Avelino del
Rosario
MEM AID
Blind Testator
BRIEFER
9
Gliceria Avelino del Rosario died without any ascendants or descendants.
Consuelo, the niece of Glicerio filed a petition to probate the 1960 will executed by
Gliceria. It was claimed that said will was read by her silently. The petition was
opposed by several heirs on the ground that such will was void given that the
eyesight of the deceased was so poor that she could not have read the provisions
of the will. CFI-Manila issued an order admitting the probate of the 1960 will.
However, the SC held that said will was void on the ground that it failed to
comply with the requisites under Art. 808 of the Civil Code which provides that if
the testator is blind, the will shall be read to him twice.
DOCTRINE
The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will himself 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.
FACTS
 Gliceria Avelino del Rosario died without any ascendants or descendants.
 She executed 2 wills. The first will consists of 12 pages and was written in
Spanish which is the language known to her. The second will was executed on
December 1960 consisting of one page, and written in Tagalog. The second
will was read by her silently and it was during this time that her physician
said that she had possible glaucoma.
 Consuelo S. Gonzales Vda. de Precilla, niece of Gliceria, petitioned for
probate of the 1960 will, and for her appointment as special administratrix
 This petition was opposed by several groups and claimed that such will was
void because the eyesight of the deceased was so poor and defective that she
could not have read the provisions contrary to the testimony of the witnesses.
 The 1960 will has a lot of typographical errors (HULINH” for “HULING”
(last), “Alfonsa” for “Alfonso”, “MERCRDRS” for MERCEDES”,
“instrumental” for “Instrumental”, and “acknowledged” for “acknowledge”)
 The Trial Court issued an order admitting to probate the 1960 Will of
Gliceria on the ground that no evidence has been presented to establish that
the deceased was not of sound mind during the execution of both wills and
that the erasures and alterations in the instruments were insignificant to
warrant rejection.
ISSUE(S): WON the 1960 Will is valid
CASE ESCALATION
CFI-Manila: ruled in favor of Consuelo
HELD:
FOR THE FOREGOING REASONS, the order of the court below allowing to
probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set
aside.
The declarations in court of the ophthalmologist as to the condition of the
testatrix's eyesight fully establish the fact that her vision remained mainly for
viewing distant objects and not for reading print; that she was, at the time of the
execution of the second will on December 29, 1960, incapable of reading and could
not have read the provisions of the will supposedly signed by her. Upon its face,
the testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, apparently to save on space.
Plainly, the testament was not prepared with any regard for the defective vision
of Doña. Gliceria, the typographical errors remained uncorrected thereby
indicating that the 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
untidy 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.
Whereas in the 1960 will there is nothing in the record to show that the requisites
of Art. 808 of the Civil Code of the Philippines that "if the testator is blind, the
will shall be read to him twice," have not been complied with, the said 1960 will
suffer from infirmity that affects its due execution. The rationale behind this
requirement 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.
NOTES
Bella A. Guerrero v. Resurrecion A. Bihis| G.R. No. 174144 | 04-17-2007 |
Testamentary Succession-Notarial Will | Trish Veluya (digest-writer)
The case originates from an action to probate the last will and testament of
Felisa Tamio de Buenaventura which reached up to the Supreme Court. This is a
petition for review Certiorari under Rule 45 from the CA decision affirming the
RTC.
MEM AID
Sisters fighting over the will of their mother Felisa. Notary public acting beyond
his authority.
BRIEFER
10
Mother Felisa is the decedent and the petitioner (Guerrero) and respondent
(Bihis) were sister and Guerrero sought the probate of the will of Felicia. This was
opposed by Bihis and claimed that the will of Felicia did not comply with the
requirements of the law since the will was acknowledged by the testatrix and the
notary public in Q.C. which was outside the territorial jurisdiction of the Notary
Public. The SC held that the will of Felicia is not valid since it did not comply
with the requirements laid down by Art. 804 and Art. 805 of the NCC. The will
was acknowledged by the Notary Public in Q. C. but the Commission of the
Notary Public is only within Caloocan City. Since it was acknowledged by the
notary public in a territory that is beyond its jurisdiction then, the will is not
valid.
DOCTRINE
ART. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. Acknowledgement can only be made before a competent
officer, that is, a lawyer duly commissioned as a notary public.
A notary public is authorized to perform notarial acts, including the taking of
acknowledgments, within that territorial jurisdiction only. Outside the place of
his commission, he is bereft of power to perform any notarial act; he, is not a
notary public. Any notarial act outside the limits of his jurisdiction has no force
and effect.
FACTS
 Felisa de Buenaventura died and she was survived by her 2 daughters
Guerrero and Bihis. Guerrero filed a petition for the probate of the last will
and testament of Felisa in the RTC. Guerrero was named as the executrix in
the will.
 The petition was opposed by Felisia’s other daughter Bihis who contends that
the will was not executed and attested according to Arts. 804 and 805 of the
NCC.
 The RTC dismissed the petition on the ground that the will did not comply
with Art. 806 of the Civil Code since the will was will was “acknowledged” by
the testatrix and the witnesses at the testatrix’s residence in Q.C. before
Atty. Macario O. Directo who was a commissioned notary public for and in
Caloocan City. Hence it was outside the territorial jurisdiction of Atty.
Directo.
 CA upheld the decision of the RTC.
ISSUE(S): WON the will of Felisia is valid
CASE ESCALATION
RTC: ruled in favor of Bihis
CA: affirmed
HELD:
Upheld the CA, petition is DENIED, ultimately ruling in favor Bihis
Art. 806 of the Civil Code provides “Every will must be acknowledged before a
notary public by the testator and the witnesses.” In the execution of a notarial
will, the acknowledgement of the will by the testator and the witnesses must be
before a notary public. This is a formal requirement and is indispensable for the
validity of a will. If a will is not acknowledged by the testator and the witnesses
before a notary public, the will is deemed void and cannot be accepted for probate.
The Court defined Acknowledgement as the act of one who has executed a deed in
going before some competent officer and declaring it to be his act or deed. In the
case of a notarial will, that competent officer is the notary public.
The Court held that in this case, the will of Felisa failed to comply with the
requirements of Art. 806 of the NCC because the notary public whom the testator
and the witnesses made their acknowledgement to acted beyond his authority.
The will was acknowledged in Q.C. but the commission of the notary public was
only limited to Caloocan city. The notary public can only validly perform his duty
within Caloocan city. Thus, since he acted beyond his authority it was as if the
Acknowledgement was not made before a competent officer. The will is deemed
void.
NOTES
 Focus on the acknowledgement and authority of the notary public.
Lee vs Tambago | AM No.5281 | 12-12-2008| Testamentary Succession |
ABALOS
A letter-complaint charging respondent Atty. Regino B. Tambago with violation of
the Notarial Law and the ethics of the legal profession for notarizing a spurious
last will and testament.
MEM AID
Why notarize a fake will? Also, FOLLOW dem formalities gurl
BRIEFER
Tambago notarized a will that did not follow the formalities required of a will and
is now suspended and perpetually disqualified as a notary public
DOCTRINE #2 of Held
FACTS
11
1. MANUEL L. LEE charged ATTY. REGINO B. TAMBAGO with violation
of the Notarial Law and the ethics of the legal profession for notarizing a
spurious last will and testament.
2. He averred that his father, Vicente Lee, Sr., never executed the contested
will and such will contained the forged signatures of CAYETANO NOYNAY
and LORETO GRAJO, the purported witnesses to its execution.
3. The will stated that Vicente bequeathed his entire estate to his wife LIM
HOCK LEE, save for a parcel of land which he devised to Vicente Lee, Jr.
and Elena Lee, half-siblings of Manuel.
4. The will was purportedly executed and acknowledged before respondent on
June 30, 1965. Complainant, however, pointed out that the residence
certificate of the testator noted in the acknowledgment of the will was
dated January 5, 1962.
5. Additionally, Vicente’s signature was not the same as his signature as donor
in a deed of donation which supposedly contained his purported signature.
ISSUE(S): W/N Tambago violated notarial law by notarizing a spurious last will
and testament (YES)
CASE ESCALATION N/A
HELD: WHEREFORE, respondent Atty. Regino B. Tambago is hereby found
guilty of professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138
of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional
Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old
Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one
year and his notarial commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an officer of the court,
he is PERPETUALLY DISQUALIFIED from reappointment as a notary public.
1. Yes, Tambago violated the Notarial Law and the ethics of legal profession.
2. There are certain formalities that must be followed in the execution of
wills. The object of solemnities surrounding the execution of wills is to
close the door on bad faith and fraud, to avoid substitution of wills
and testaments and to guarantee their truth and authenticity.
3. A notarial will, as the contested will in this case, is required by law to be
subscribed at the end thereof by the testator himself. In addition, it
should be attested and subscribed by 3 or more credible witnesses in
the presence of the testator and of one another.
4. The will in question was attested by only 2 witnesses. On this circumstance
alone, the will must be considered void.
5. This is in consonance with the rule that acts executed against the
provisions of mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.
6. The Civil Code likewise requires that a will must be acknowledged
before a notary public by the testator and the witnesses.
7. An acknowledgment is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signatory actually declares to
the notary public that the same is his or her own free act and deed.
8. The acknowledgment in a notarial will has a two-fold purpose: (1) to
safeguard the testator’s wishes long after his demise and (2) to assure that
his estate is administered in the manner that he intends it to be done.
9. The will in question shows that this particular requirement was neither
strictly nor substantially complied with. For one, there was the
conspicuous absence of a notation of the residence certificates of the
notarial witnesses Noynay and Grajo in the acknowledgment.
10. Similarly, the notation of the testator’s old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by
respondent invalidated the will.
11. As the acknowledging officer of the contested will, Tambago was required
to faithfully observe the formalities of a will and those of notarization.
These formalities are mandatory and cannot be disregarded.
SAMANIEGO-CELADA V. ABENCA | G.R. NO. 145545 |June 30, 2008|
Concept of Wills; Testamentary Capacity and Intent; Notarial Wills’
Witnesses to Wills | Jessica Clemente
This is a petitioner to determine whether the requisites of a valid will has been
complied with.
MEM AID
LIFE LONG COMPANION NI TITA VS. FIRST COUSINS NI TITA.
BRIEFER
Petitioners are the only surviving heirs and first cousins of the decedent.
They instituted this action against the decedent’s lifelong partner as the decedent
bequeathed her properties to the latter. Claiming that the will was invalid as it
was not done in accordance with the formalities of the law and at the same time,
it was executed under undue influence, it must be declared defective. The SC
ruled that the will was executed in accordance with the formalities prescribed by
the Civil Code and that the petitioners failed to prove that undue influence was
present in the execution of the will.
DOCTRINE
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
12
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 the law.
FACTS
1. Petitioner was the first cousin of the decedent Margarita while respondent was
the decedent’s lifelong companion. Margarita died single and without any
ascending or descending heirs as they have predeceased her. Before her death,
Margarita executed a Last Will and Testament where she bequeathed her
properties to respondent.
2. Petitioners then filed a petition for letters of the administration of the estate of
Margarita before the RTC as they believe that they are Margarita’s rightful heirs.
While this was ongoing, respondent, on the other hand filed a petition for probate
of Margarita’s will before the RTC.
It was proven that at the time of the execution of the will, the testator
was not mentally capable of making one. The opposition failed to establish
through preponderance of evidence that there existed a mental illness at the time
of the execution of the will. While it is true that the testator was physically weak,
it does not follow that that she was of unsound mind.
ON THE NUMBER OF PAGES:
The error in the number of pages as stated in the attestation clause is
not material to invalidate the subject will. It must be noted that the will is
consecutively lettered with pages A,B, and C which is a sufficient safeguard from
the possibility of an omission of some of hte pages.
ON THE SIGNATURES:

The petitioners failed to support this claim through substantial evidence.

CASE ESCALATION
Hence, the decedent executed a valid will which allows her to dispose of her
RTC- ruled in favor of respondents when it declared that the last will and
testament probated and that respondent was the rightful executor of the will. properties and have the same probated. This being so, petitioners have no legal
right to claim any part of the properties.
CA- affirmed in toto.

Petitioners now come to court arguing that:

a. Margarita’s will failed to comply with the formalities required under

the Civil Code because it was the attestation clause states that the will is
composed of three pages when in truth, it was only two;

b. that the signatures were not similar implying that they were not
signed on the same day;

c. and that the will was procured through undue influence as Margarita
was already sickly; and by reason of these allegations, petitioners must be
declared as Margarita’s rightful heirs.

ISSUE(S): W/N the defects mentioned in the prayer are sufficient to warrant
that the will is invalid. (NO)

HELD:

ON MENTAL ILLNESS/ UNSOUND MIND:

13
B. HOLOGRAPHIC WILLS; INCORPORATION OF DOCUMENT BY REFERENCE;
CODICILS; REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS;
REPUBLICATION AND REVIVAL OF WILLS; ALLOWANCE AND
DISALLOWANCE OF WILLS
Article 804. Every will must be in writing and executed in a language or
dialect known to the testator. (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)
Article 825. A codicil is supplement or addition to a will, made after the
execution of a will and annexed to be taken as a part thereof, by which
disposition made in the original will is explained, added to, or altered.
(n)
Article 826. In order that a codicil may be effective, it shall be executed
as in the case of a will. (n)
Article 827. If a will, executed as required by this Code, incorporates
into itself by reference any document or paper, such document or
paper shall not be considered a part of the will unless the following
requisites are present:
(1) The document or paper referred to in the will must be in existence
at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating among
other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document
or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each and
every page, except in case of voluminous books of account or
inventories. (n)
Article 828. A will may be revoked by the testator at any time before his
14
death. Any waiver or restriction of this right is void. (737a) even if the new will should become inoperative by reason of the
incapacity of the heirs, devisees or legatees designated therein, or by
their renunciation. (740a)

Article 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 Article 833. A revocation of a will based on a false cause or an illegal
to the law of the place in which the testator had his domicile at the cause is null and void. (n)
time; and if the revocation takes place in this country, when it is in
accordance with the provisions of this Code. (n)

Article 834. The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made should be
Article 830. No will shall be revoked except in the following cases: revoked. (741)

(1) By implication of law; or

Article 835. The testator cannot republish, without reproducing in a
(2) By some will, codicil, or other writing executed as provided in case of subsequent will, the dispositions contained in a previous one which is
wills; or void as to its form. (n)
(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 Article 836. The execution of a codicil referring to a previous will has the
direction of the testator, the will may still be established, and the estate effect of republishing the will as modified by the codicil. (n)
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)
Article 837. If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second will does not
revive the first will, which can be revived only by another will or codicil.
Article 831. Subsequent wills which do not revoke the previous ones in (739a)
an express manner, annul only such dispositions in the prior wills as are
inconsistent with or contrary to those contained in the later wills. (n)

Article 838. No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.
Article 832. A revocation made in a subsequent will shall take effect,

15

The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the
testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as
may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during
the lifetime of the testator or after his death, shall be conclusive as to
its due execution. (n)
Article 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)
Article 1335. There is violence when in order to wrest consent, serious
or irresistible force is employed.
There is intimidation when one of the contracting parties is compelled
by a reasonable and well-grounded fear of an imminent and grave evil
upon his person or property, or upon the person or property of his
spouse, descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and condition of
the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the
claim is just or legal, does not vitiate consent. (1267a)
Article 1337. There is undue influence when a person takes improper
advantage of his power over the will of another, depriving the latter of
a reasonable freedom of choice. The following circumstances shall be
considered: the confidential, family, spiritual and other relations
between the parties, or the fact that the person alleged to have been
unduly influenced was suffering from mental weakness, or was ignorant
or in financial distress. (n)
Article 1338. There is fraud when, through insidious words or
machinations of one of the contracting parties, the other is induced to
enter into a contract which, without them, he would not have agreed
to. (1269)
16

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA
MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO,
respondents.| G.R. No. 76464| February 29, 1988 | Holographic Wills|
Cruz, F.
MEM AID
They though there was no will. Turns out there is. Question now is was it
revoked?
BRIEFER
Adriana Maloto dies supposedly without a will. The heirs entered into ann
extrajudicial partition of estate. However it turns out there was a will left by
Adriana. It is being alleged that the will was revoked because Adriana asked her
household to burn the will. The court ruled in the negative. Animus revocandi in
this case was not sufficiently proven.
DOCTRINE
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.
FACTS
 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.
 While the case was still in progress, Aldina, Constancio, Panfilo, and Felino
— executed an agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four equal parts among
the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did.
 Three years later, Atty. Sulpicio Palma, 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. The document was submitted to the office of the clerk of the
Court of First Instance.
 Incidentally, 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, among them being the
petitioners Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
 Aldina and Constancio, joined by the other devisees and legatees named in
the will, filed in Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will.
(DENIED, Petition for certiorari was also denied.)
 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.
ISSUE(S): Whether the will was revoked by Adriana?
HELD: NO .The provisions of the new Civil Code pertinent to the issue can be
found in Article 830. 17
17
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
17
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.
In this case, while animus revocandi or the intention to revoke, may be conceded,
for that is a state of mind, yet that requisite alone would not suffice. "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.
Nowhere in the records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably
positive that the document burned was indeed Adriana's will. Guadalupe, we
think, believed that the papers she destroyed was the will only because, according
to her, Adriana told her so. Eladio, on the other hand, obtained his information
that the burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
Testate Estate of the Deceased Mariano Molo, Juana Juan Vda. De Molo
v. Luz, Gliceria and Cornelio Molo | G.R. No. L-2538 | 09-21-1951 |
Testamentary Succession > Revocation of Wills and Testamentary
Dispositions | Jon de Guia
The case originates from an action to probate a last will and testament, which
reached the Supreme Court. This is an appeal from CFI Rizal decision admitting
said probate
MEM AID
Mololose mo lang yung luma pag pinalitan ng bago na gumana
fact of its unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court
BRIEFER
Husband executed two wills: an old will (1918) and a new will (1939). In the new
will, he said he’s revoking the old will. Unfortunately, the new will didn’t comply
with legal requisites for wills and so could not be given effect. SC said that (1)
because the new will cannot be given effect, its revoking clause also cannot be
given effect and the old will subsists and (2) in making the revoking clause, the
testator intended to replace the old will with the new one; since no such
replacement occurred, the old one remains valid.
DOCTRINE
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 or the rules] as to the making of the wills, cannot produce the
effect of annulling the previous will, inasmuch as said revocatory clause is void
(Samson v. Naval)18.
xxx
The rule is established that where the act of destruction is connected with the
making of another will so as fairly to arise the inference that the testator meant
the revocation of the old to depend upon the efficacy of the new disposition
intended to be substituted, the revocation will be conditional and dependent upon
the efficacy of the new disposition; and if, for any reason , the new will intended to
be made as a substitute is inoperative, the revocation fails and the original will
remains in full force. [This is called] the doctrine of dependent relative revocation.
(Gardner, pp. 232-233)19
FACTS
 Before his death, Mariano Molo made two wills:
1. 1918 August 17 will: It was alleged, without proof or explanation, that
this will is more favorable to Juana
2. 1939 June 20 will: Contains a clause expressly revoking 1918 will
 Mariano Molo passed away on 1941
 He died “without leaving any forced heir”
 He was survived, however, by his wife, Juana (petitioner-appellee herein), his
nieces and nephew (oppositors-appellants herein, hereafter referred to as “the
other relatives”)
 Wife Juana sought a probate of the 1939 will, which CFI Rizal allowed
18
41 Phil., 838
19
This is the only citation in the case, it didn’t get more specific; Note that the SC
quoted this with approval and used it as its own doctrine
18
 Later, though, the other relatives opposed the probate 20 and the order
allowing said probate was set aside
 Since she was not allowed to probate the 1939 will, she then proceeded to
probate the 1918 will
 The other relatives again opposed, this time saying:
o Wife Juana is estopped
o 1918 will was not executed in the manner required by law
o 1918 will was subsequently revoked by the 1939 will
 After a calamity21 that destroyed court records, Wife Juana sought to probate
the will again
 This time, the other relatives’ arguments were the following:
o Wife Juana deliberately frustrated the probate of 1939 will to obtain
the probate of the 1918 will (allegedly more favorable to her)
o Wife Juana is estopped
o Wife Juana has “unclean hands” and cannot be entertained by the
Court
o 1918 will was not executed in the manner required by law
o Testator-Decedent Mariano Molo deliberately revoked the 1918 will
o 1918 will was subsequently revoked by the 1939 will
 Because of the calamity, Wife Juana presents the court with only a copy of
1918 will and the 1939 will
 Issues are in the HELD
CASE ESCALATION
CFI Rizal: Ruled in favor of Wife Juana and admitted the probate of the 1918 will
HELD:
CFI Rizal is affirmed; ultimately, SC ruled in favor of petitioner-appellee Wife
Juana
Preliminary Issue: W/N Wife Juana deliberately frustrated the probate of
the 1939 will to give effect to the 1918 will and, thus, is “estopped” and
had “unclean hands” as she acted with bad faith (NO)
Wife Juana actually sought the probate of the 1939 will and it was the other
relatives that opposed. Why would she have gone through the trouble?
Issue 1: W/N the 1918 will was revoked by the 1939 will (NO)
20
Grounds for the opposition were not specified in the original
21
Battle of liberation—destroyed the records of the case and they could not be
reconstituted due to lack of copies
Refer to DOCTRINE for the applicable rule. Summary is that the 1939 will did
not meet the requisites for its validity and so, its clause revoking the 1919 will
cannot be given effect.
Oppositors, however, argue that the 1939 will, while not executed with the legally
required formalities, shows the intention of Testator-Decedent Mariano Molo to
do away with the 1918 will.
To address this, refer to the second paragraph under DOCTRINE which, in
essence, states that the clause in the 1939 will which revokes the 1918 will
presupposes that the newer will replaces the old one. Thus, the old will can only
be invalid if it has the new will to replace it. Since that didn’t happen, then the
old will is also not revoked.
Oppositors then argue that the original of the 1918 was destroyed by Testator
Mariano himself, and that is why Wife Juana cannot present it in court.
SC finds this strange since the Testator would then have no reason to make the
1939 which revokes the 1918 will. Assuming arguendo that Testator-Decedent
Mariano Molo did destroy the 1918 will, still, such destruction cannot defeat the
validity of the 1918 will. He clearly intended to die testate and assumed that the
1939 would be given effect. It wasn’t. So, 1918 will subsists.
Issue 2: W/N the due execution of the 1918 has been sufficiently proven
by evidence (YES)
The will in question was attested, as required by law, by three witnesses. Two of
them died. Wife Juana presented not only the last surviving witness, Angel
Cuenca, but also the notary public who prepared and notarized the will.
NOTES
 Hindi ko alam anong pinaglalaban nung mga oppositors. In both the 1939
will and the 1918 will, the Testator “instituted his wife as his universal heir”.
So, either way, panalo si wife.
Marcela Rodelas v. Amparo Aranza | G.R. No. L-58509 | 12-07-1982 |
Holographic Wills | n.r.d.domingo
This case was certified to the Supreme Court by the Court of Appeals under
Section 3 Rule 50 of the RoC. This case originated from an action to probate the
will of Bonilla
MEM AID
19
Photostatic copy of Bonilla’s Holographic Will.
BRIEFER
Rodelas sought to probate the photostatic copy of Bonilla’s Holographic Will
before the RTC. Aranza sought to contest the probate on the ground that lost or
destroyed holographic wills cannot be proved by secondary evidence unlike
ordinary wills. However, the Supreme Court ruled that a Photostatic Copy of a
Holographic Will is allowed because the handwriting of the decedent may be
compared to other specimens.
DOCTRINE
“[I]f the holographic will has been lost or destroyed and no other copy is
available, the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a comparison
between sample handwritten statements of the testator and the handwritten will.
But, a photostatic copy or Xerox copy of the holographic will may be allowed
because comparison can be made with the standard writings of the testator.”
FACTS
 Marcela Rodelas filed a petition with the CFI for the probate of a photostatic
copy of the holographic will of Ricardo B. Bonilla.
 Amparo Aranza Bonilla, however, filed a motion to dismiss on the ground
that the holographic will itself, and not a copy, must be produced, otherwise
it would produce no effect; that Rodelas is estopped from claiming that
Bonilla left a will by failing to produce it within 20 days of death; that the
holographic will did not contain a disposition of property; and that Bonilla did
not leave any will.
ISSUE(S):
Whether or not a holographic will which was lost or cannot be found can
be proved by means of a photostatic copy?
CASE ESCALATION
RTC: Granted the motion to dismiss and ruled that once an original copy of a
holographic will is lost, a copy cannot stand in lieu of the original.
CA: Referred to the Supreme Court because the action does not involve any
question of fact.
HELD:
Reversed the decision of the RTC and the Order which dismissed the petition to
approve the will of Bonilla is SET ASIDE.
YES. A lost holographic will can be proved by means of a
photostatic copy.
As a general rule, if the holographic will has been lost it can no longer be
proved because the best and only evidence in the authenticity of the will is the
handwriting of the testator which should be compared with other handwriting
specimens.
However, a photostatic copy or Xerox copy of the holographic will may be
allowed because such copy allows the comparison between the handwriting of in
the will with the standard handwriting of the testator.
This situation was also contemplated by the court in the case of Gam v.
Yap, wherein in the court said in a footnote that a photographic, photostatic,
mimeographed, or carbon copy may be allowed because the authenticity of the
handwriting could be tested before the probate court.
AZAOLA V. SINGSON (no digest)
Rosa Cayetano Cuenco v. Court of Appeals, et al. | G.R. No. L-24742 | 10-
26-1973 | Revocation of Wills and Testamentary Dispositions | Sarah
Ganto
This is a petition for certiorari to review the decision of respondent Court of
Appeals and its subsequent Resolution denying petitioner's Motion for
Reconsideration.
MEM AID
Testate vs. intestate
BRIEFER
When Senator Cuenco died, one of his children from his first marriage (Lourdes)
filed a Petition for Letters of Administration with CFI Cebu, alleging he died
intestate. While the case was pending, his second wife filed a petition with CFI
Quezon for the probate of his last will and testament, which was admitted to
probate by said court. The CA barred CFI Quezon from proceeding with the
testate case as the first proceeding (the intestate case) was instituted in CFI
Cebu. The SC reversed the CA because testate proceedings for the settlement of
the estate of a deceased person take precedence over intestate proceedings for the
same purpose.
DOCTRINE
20
Testate proceedings for the settlement of the estate of a deceased person take
precedence over intestate proceedings for the same purpose. Thus, if in the course
of intestate proceedings pending before a CFI it is found that the decedent had
left a last will, proceedings for the probate of the latter should replace the
intestate proceedings even if at that state an administrator had already been
appointed, the latter being required to render final account and turn over the
estate in his possession to the executor subsequently appointed. This however, is
understood to be without prejudice that should the alleged last will be rejected or
is disapproved, the proceeding shall continue as an intestacy. (Doctrine of
precedence of probate proceedings over intestate proceedings)
FACTS
 Senator Mariano Jesus Cuenco died in Manila. He was survived by his widow
and two minor sons, residing in Quezon City, and children of the first
marriage, residing in Cebu. Lourdes, one of the children from the first
marriage, filed a Petition for Letters of Administration with CFI Cebu,
alleging that the senator died intestate in Manila but a resident of Cebu with
properties in Cebu and Quezon City.
 The petition still pending with CFI Cebu, Rosa, the second wife, filed a
petition with CFI Quezon for the probate of his last will and testament.
 CFI Quezon admitted to probate the last will and testament as having been
"freely and voluntarily executed by the testator" and "with all formalities of
the law" and appointed Rosa as executrix of his estate "following the desire of
the testator" in his will.
 CFI Cebu issued an order holding in abeyance its resolution on petitioner's
motion to dismiss until CFI Quezon shall have acted on the probate
proceedings.
 Lourdes filed an opposition and motion to dismiss in CFI Quezon, on the
grounds of lack of jurisdiction and improper venue, considering that CFI
Cebu already acquired exclusive jurisdiction over the case.
 The children from the first marriage filed a special civil action of certiorari
and prohibition with preliminary injunction with the CA to bar CFI Quezon
from proceeding with the testate case.
ISSUE: WON CFI Quezon acted without jurisdiction or grave abuse of discretion
in taking cognizance and assuming exclusive jurisdiction over the probate
proceedings – No.
CASE ESCALATION
CFI Quezon: denied Lourdes’ opposition and motion to dismiss
CA: in favor of respondents; issued a writ of prohibition to CFI Quezon for said
court to refrain perpetually from proceeding and taking any action in the
intestate proceeding pending before it (“Considering that the first proceeding was
instituted in CFI Cebu, it follows that said court must exercise jurisdiction to the
exclusion of CFI Quezon.”)
HELD:
Reversed the appealed decision and resolution of the CA.
The Judiciary Act confers original jurisdiction upon all CFIs over "all matter of
probate, both of testate and intestate estates." On the other hand, Rule 73, section
1 of the Rules of Court lays down the rule of venue, and the Rule specifies that
"the court first taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts."
Since the QC court took cognizance over the probate petition before it and
assumed jurisdiction over the estate, with the consent and deference of the Cebu
court, the QC court should be left now, by the same rule of venue of said Rule 73,
to exercise jurisdiction to the exclusion of all other courts.
Testate proceedings for the settlement of the estate of a deceased person take
precedence over intestate proceedings for the same purpose. Thus, if in the course
of intestate proceedings pending before a CFI it is found that the decedent had
left a last will, proceedings for the probate of the latter should replace the
intestate proceedings even if at that state an administrator had already been
appointed, the latter being required to render final account and turn over the
estate in his possession to the executor subsequently appointed. This however, is
understood to be without prejudice that should the alleged last will be rejected or
is disapproved, the proceeding shall continue as an intestacy.
Codoy v Calugay| G.R. No. 103554 | 05-23-1993 | Notarial Will | Alexis A.
Hiceta
Before us is a petition for review on certiorari of the decision of the Court of
Appeal and its resolution denying reconsideration
BRIEFER: Article 811 of the New Civil Code states that in the probate of
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 witnesess 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.
21
DOCTRINE: The will must be acknowledged before a notary public by the
testator and the attesting witnesses. The attestation clause need not be written in
a language known to the testator or even to the attesting witnesses.
Facts: On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased Matilde
Seño Vda. de Ramonal, filed a petition for probate of the said will. They attested
to the genuineness and due execution of the will on 30 August 1978.
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that
the will was a forgery and that the same is even illegible. They raised doubts as
regards the repeated appearing on the will after every disposition, calling the
same out of the ordinary. If the will was in the handwriting of the deceased, it
was improperly procured.
Evangeline Calugay, etc. presented witnesses and various documentary evidence:
The first witness was the clerk of court of the probate court who produced and
identified the records of the case bearing the signature of the deceased.
The second witness was election registrar who was made to produce and identify
the voter’s affidavit, but failed to as the same was already destroyed and no
longer available.
The third, the deceased’s niece, claimed that she had acquired familiarity with
the deceased’s signature and handwriting as she used to accompany her in
collecting rentals from her various tenants of commercial buildings and the
deceased always issued receipts. The niece also testified that the deceased left a
holographic will entirely written, dated and signed by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate
proceedings of her late husband, who said that the signature on the will was
similar to that of the deceased but that he can not be sure.
The fifth was an employee of the DENR who testified that she was familiar with
the signature of the deceased which appeared in the latter’s application for
pasture permit. The fifth, respondent Evangeline Calugay, claimed that she had
lived with the deceased since birth where she had become familiar with her
signature and that the one appearing on the will was genuine.
Codoy and Ramonal’s demurrer to evidence was granted by the lower court. It
was reversed on appeal with the Court of Appeals which granted the probate.
ISSUE: Whether or not Article 811 of the Civil Code, providing that at least three
witnesses explicitly declare the signature in a contested will as the genuine
signature of the testator, is mandatory
Held: Yes. The word “shall” connotes a mandatory order, an imperative obligation
and is inconsistent with the idea of discretion and that the presumption is that
the word “shall”, when used in a statute, is mandatory.
In the case at bar, the goal to be achieved by the law, is to give effect to the
wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat the
wishes of the testator.
The paramount consideration in the present petition is to determine the true
intent of the deceased.
A visual examination of the holographic will convinces that the strokes are
different when compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in support of
their opposition.
The object of solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial 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 the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged
as the will of the testator, which is why if the holographic will is contested, the
law requires three witnesses to declare that the will was in the handwriting of the
deceased.
Article 811, paragraph 1. provides: “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.”
The word “shall” connotes a mandatory order, an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word
“shall”, when used in a statute, is mandatory.
Ethel Grimm Roberts v. Judge Tomas R. Leonidas | 129 SCRA 33 | April
27, 1984 | Testamentary Succession | Ricardo Francisco D. Puno
Briefer: Edward Grimm died and left his children from his first marriage which
ended in a divorce as well as his second wife and two children. Before his death,
he was able to execute two wills, one governing his estate in the Philippines
where the legitimes of his children by his first marriage were provided for and the
22
other for his estate outside the Philippines. His second wife filed a petition for
probate of the two wills in an American court, at the same time also learned that
an intestate proceeding was filed in Manila by Ethel, Grimm’s daughter from his
first marriage. They subsequently entered into a compromise agreement for the
partition of the property, this along with the intestate proceeding was later
challenged as the decedent died testate which makes a probate of the will
mandatory which in turn makes NCC 838 operative. SC dismisses Ethel’s
complaint
Doctrine: NCC 838: “No will shall pass either real or personal property unless it
is proved and allowed”
Facts:
1. Edward Grimm, an American resident of Manila died. He left behind his
two children(Juanita Morris and Ethel Grimm Roberts) by his first
marriage with Juanita Kegley Grimm which ended in a divorce and
another two children (Edward Grimm and Linda Grimm) by his second
wife(Maxine Grimm)
2. Years before his death and while still in America, he was able to execute
two wills. One will disposed of his Philippine estate while the other
disposed of his estate outside of the Philippines. The legitimes for his two
children by his first marriage were provided for in the will governing his
property in the Philippines. They were subsequently excluded in the
other will.
3. The two wills and the codicil were presented for probate by Maxine
Grimm in America.
4. Maxine received notice of an intestate petition filed by Ethel Grimm in
the RTC of Manila
5. Maxine and her two children entered into a compromise agreement with
Ethel Grimm , her sister and mother for the partition of the property.
6. For a period of five months, the intestate case became stagnant.
Afterwards, a petition was filed by Maxine and her children alleging that
the interstate proceeding was void because the decedent died testate and
that the partition was contrary to decedent’s wills.
7. Ethel filed a motion to dismiss but was denied by respondent judge.
Hence this petition
Issues: W/N the intestate proceedings were proper
Case Escalation: RTC denied the MTD. Petition for Certiorari and Prohibition
with the SC
Held: No. Wherefore the petition is dismissed
Notes:
1. Focus on the provision of NCC 838 as two the reason why the intestate
proceeding was improper.
2. Testate proceeding is proper as the decedent died with two wills. As
provided for in NCC 838: “No will shall pass either real or personal
property unless it is proved and allowed”
3. It is anomalous that the estate of a person who died testate should be
settled in an intestate proceeding.
Nepomuceno v CA | G.R. No. L-62952 |Oct. 9, 1985 | Allowance and
Disallowance of Will | Chesca S.
This is a petition for certiorari to set aside that portion of the decision of the
respondent Court of Appeals (now intermediate Appellate Court) dated June 3,
1982, as amended by the resolution dated August 10, 1982, declaring as null and
void the devise in favor of the petitioner and the resolution dated December 28,
1982 denying petitioner's motion for reconsideration.
MEM AID
The will contained a provision that testator has been living with a concubine
BRIEFER
Testator Martin Jugo executed a will wherein he devised to his forced heirs (wife
and two children) his entire estate and to petitioner, his mistress (and designated
executor) whom he lived with for 22 years, the free portion thereof. The forced
heirs filed an opposition. The RTC denied the probate of the will on the ground
that the testator admitted to cohabiting with petitioner. The CA declared as valid
the will except that the devise in favor of the petitioner is null and void. The
petitioner alleged that the intrinsic validity of the will cannot be passed upon in
probate proceedings. The SC ruled that the general rule is that in probate
proceedings, the court is limited to an examination and resolution of the extrinsic
validity of the Will, however it is not absolute. Given exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and
pass upon certain provisions of the Will.
DOCTRINE
The petition below being for the probate of a Will, the court's area of inquiry is
limited to the extrinsic validity thereof. The testators testamentary capacity and
the compliance with the formal requisites or solemnities prescribed by law are the
only questions presented for the resolution of the court. Any inquiry into
the intrinsic validity or efficacy of the provisions of the will or the legality of any
devise or legacy is premature. The rule, however, is not inflexible and absolute.
Given exceptional circumstances, the probate court is not powerless to do what
the situation constrains it to do and pass upon certain provisions of the Will.
23
FACTS
 Testator Martin Jugo left a last Will and Testament (duly done).
 In the said Will,22 the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in
the Will that the testator was legally married to a certain Rufina Gomez by
whom he had two legitimate children, Oscar and Carmelita, but since 1952,
he had been estranged from his lawfully wedded wife and had been living
with petitioner as husband and wife. In fact, on December 5, 1952, the
testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the Peace. The testator
devised to his forced heirs, namely, his legal wife Rufina Gomez and his
children Oscar and Carmelita his entire estate and the free portion thereof to
herein petitioner.
 Petitioner filed a petition for the probate of the will. The legal wife and the
her children filed an opposition claiming that the Will was executed through
undue and improper influence.
 The CFI of Rizal denied the probate of the Will on the ground that the
testator admitted in his Will to cohabitating with the petitioner from Dec.
1952 until his death on July 16, 1974. The lower court ruled that he Will's
admission to probate will be an Idle exercise because on the face of the Will,
the invalidity of its intrinsic provisions is evident.
 Petitioner appealed to the CA; CA declared the Will as valid except the
portion in favor of the petitioner. Hence this petition.
 Petitioner submits that the validity of the testamentary provision in her
favor cannot be passed upon and decided in the probate proceedings but in
some other proceedings because the only purpose of the probate of a Will is to
establish conclusively as against everyone that a Will was executed with the
formalities required by law and that the testator has the mental capacity to
execute the same.
22Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina
Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare
and admit to be legally and properly entitled to inherit from me; that while I have been
estranged from my above-named wife for so many years, I cannot deny that I was legally
married to her or that we have been separated up to the present for reasons and
justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno,
whom I declare and avow to be entitled to my love and affection, for all the things which she
has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full
knowledge and consent, did comport and represent myself as her own husband, in truth and
in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous marriage;
ISSUE(S): Whether or not the respondent court acted in excess of its jurisdiction
when after declaring the last Will and Testament of the deceased Martin Jugo
validly drawn, it went on to pass upon the intrinsic validity of the testamentary
provision in favor of herein petitioner.
HELD: WHEREFORE, the petition is DISMISSED for lack of merit. The
decision of the Court of Appeals, now Intermediate Appellate Court, is
AFFIRMED.
The respondent court acted within its jurisdiction when after declaring the Will to
be validly drawn, it went on to pass upon the intrinsic validity of the Will and
declared the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is
limited to an examination and resolution of the extrinsic validity of the Will. The
rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all
questions concerning capacity of the testator and the proper execution and
witnessing of his last Will and testament, irrespective of whether its provisions
are valid and enforceable or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry is
limited to the extrinsic validity thereof. The testators testamentary capacity and
the compliance with the formal requisites or solemnities prescribed by law are the
only questions presented for the resolution of the court. Any inquiry into
the intrinsic validity or efficacy of the provisions of the will or the legality of any
devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for
probate. Probate is one thing; the validity of the testamentary provisions is
another. The first decides the execution of the document and the testamentary
capacity of the testator; the second relates to descent and distribution (Sumilang
v. Ramagosa, 21 SCRA 1369).
The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator
instituted the petitioner as universal heir and completely preterited her surviving
forced heirs. A will of this nature, no matter how valid it may appear
24
extrinsically, would be null and void. Separate or latter proceedings to determine
the intrinsic validity of the testamentary provisions would be superfluous.
Balanay Jr. v. Martinez – The Court invoked “practical considerations”:
We are of the opinion that in view of certain unusual provisions of the will, which
are of dubious legality, and because of the motion to withdraw the petition for
probate (which the lower court assumed to have been filed with the petitioner's
authorization) the trial court acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been established. The probate of a will
might become an Idle ceremony if on its face it appears to be intrinsically void.
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.
We see no useful purpose that would be served if we remand the nullified
provision to the proper court in a separate action for that purpose simply because,
in the probate of a will, the court does not ordinarily look into the intrinsic
validity of its provisions.
Nuguid v. Nuguid | G.R. No. L-23445 | 07-23-1966 | Allowance and
Disallowance of Wills | A. Tolentino
This is an APPEAL from an order of the Court of First Instance of Rizal.
MEM AID
Legitimate Parents vs. Sister
BRIEFER
Rosario Nuguid died without any descendants and she was survived by her
legitimate parents, and 6 brothers and sister. Rosario’s sister, Remedios, filed
with the Court of First Instance-Manila a petition to probate the holographic will
of Rosario. The parents of Rosario opposed on the ground that the institution of
Remedios as the sole heir will result in the preterition of compulsory heirs. CFI-
Manila dismissed the petition to probate the will. The SC affirmed the decision on
the ground that the institution of petitioner as the sole heir will only preterit the
parents who are the compulsory heirs. Furthermore, the Court noticed that such
petition questions the intrinsic validity of the will which is beyond the subject of a
proceeding for the probate of a will, however, due to practical considerations, the
Court was induced to resolve the controversy.
DOCTRINE
In a proceeding for the probate of a will, the court’s area of inquiry is limited to an
examination of, and resolution on, 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 that issue.
FACTS
 Rosario Nuguid died without any descendants.
 She was survived by her legitimate parents, Felix Nuguid and Paz Salonga
Nuguid, and 6 brothers and sisters.
 Petitioner Remedios (sister) filed with CFI-Rizal a holographic will allegedly
executed by Rosario 11 years before she died.
 Petitioner prayed that said will be admitted and that letters of
administration be issued to her
 Felix and Paz (oppositors) entered their opposition to probate the will on the
ground that the institution of Remedios as universal heir of the deceased,
oppositors – who are the compulsory heirs of the deceased in the direct
ascending line – will be illegally preterited.
 CFI-Rizal dismissed the petition to probate the Will
 Petitioner’s Motion for Reconsideration was denied. Hence, this petition.
ISSUE(S): 1. WON the Court may rule on the intrinsic validity of the will – Yes
2. WON the institution of one of the sisters of the deceased as the universal heir
preterited the compulsory heirs -Yes
CASE ESCALATION
CFI: ruled in favor of Felix and Paz. MR of Remedios was denied
HELD:
Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered
1. In a proceeding for the probate of a will, the court's area of inquiry is limited to
an examination of, and resolution on, 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. In the case at bar, however, a
peculiar situation exists. The parties shunted aside the question of whether or not
the will should be allowed probate. They questioned the intrinsic validity of the
will. Normally, this comes only after the court has declared that the will has been
duly authenticated. But if the case were to be remanded for probate of the will,
nothing will be gained. In the event of probate or if the court rejects the will,
probability exists that the case will come up once again before this Court on the
same issue of the intrinsic validity or nullity of the will. The result would be
25
waste of time, effort, expense, plus added anxiety. These practical considerations
induce this Court to meet head-on the issue of the nullity of the provisions of the
will in question, there being a justiciable controversy awaiting solution.
2. Where the deceased left no descendants, legitimate or illegitimate, but she left
forced heirs in the direct ascending line – her parents, and her holographic will
does not explicitly disinherit them but simply omits their names altogether, the
case is one of preterition of the parents, not a case of ineffective disinheritance.
Preterition “consists in the omission in the testator’s will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, through
mentioned, they are neither instituted as heirs nor are expressly disinherited”.
Disinheritance, in turn, “is a testamentary disposition depriving any compulsory
heir of his share in the legitime for a cause authorized by law”
Where the one sentence Will institutes the petitioner as the sole, universal heir
and preterits the parents of the testatrix, and it contains no specific legacies or
bequests, such universal institution of petitioner, by itself, is void. And intestate
succession ensues.
NOTES
Preterition is the omission in testator’s will of one, some or all of the compulsory
heirs in the direct line, whether living at the time of execution of the will or born
after the death of the testator. (Art. 854)
KALAW V. RELOVA (no digest)
In re: The Intestate Estate Of Andres G. De Jesus And Bibiana Roxas De
Jesus, Simeon Roxas v. Andres de Jesus| G.R. No. L-38338 | 01-28-1985 |
Testamentary Succession-Holographic Will/Allowance-Disallowance |
Trish Veluya (digest-writer)
The case originates from an action to probate the last will and testament of
Andres G. De Jesus And Bibiana Roxas De Jesus which reached up to the
Supreme Court. This is a petition for Certiorari from the CFI decision
disallowing the probate of the will of Bibiana.
MEM AID
Liberal interpretation of law. Date of will only Feb.-61.
BRIEFER
When Andres and Bibiana De Jesus died, Simeon Roxas filed a petition to probate
the will of Bibiana he found on her notebook. The will was a holographic will and
the handwriting of Bibiana was affirmed by her sons. Luz Henson (one of the
compulsory heirs of Bibiana) questioned the validity of the will on the ground that
it did not comply with the requirement of the law that the holographic will should
be dated. The SC held that the will substantially complied with the requirement
of the law hence, the probate of the holographic will should be allowed. The SC
liberally applied the rules since the will substantially complied with the
requirements of the law.
DOCTRINE
If a Will has been executed in substantial compliance with the formalities of the
law, and the possibility of bad faith and fraud in the exercise thereof is obviated,
said Will should be admitted to probate.
FACTS
 The spouses Andres G. de Jesus and Bibiana Roxas de Jesus died and the
brother of Bibiana, Simeon Roxas filed a petition to probate the estate of the
spouses. Pending the special proceedings, Simeone found the holographic will
of Bibiana from a notebook belonging to Bibiana.
 The 2 children of Bibiana (Pedro and Manuel) confirmed that the document
was written in the handwriting of their mother. The will was dated “Feb./61”
the document further provides that “This is my will which I want to be
respected altho it is not written by a lawyer. x x x”
 Luz Henson (a compulsory heir) opposed the petition for probate on the
ground that the holographic will did not comply with the requirements of the
law.
 Judge Colayco of the CFI issued an order allowing the probate of the
holographic will and held that it complied with the requirements of the law.
 Luz filed an MR and claims that the will did not comply with the requirement
of Art. 810 of the Civ Code that the will must be dated. She claims that the
year, month and day when the will was made is required.
 Judge Colayco reversed his order and disallowed the probate of the will on
the ground that it was not dated since the year, month and date must be
indicated.
ISSUE(S): WON the will of Bibiana complied with the requirement of Art. 810 of
the Civil Code
CASE ESCALATION
CFI: Initially ruled in favor of Simeon or the probate of the will. It reversed its
order in the MR filed by Luz.
HELD:
Reversed the CFI, petition is GRANTED, The order appealed from is REVERSED
and SET ASIDE and the order allowing the probate of the holographic Will of the
26
deceased Bibiana Roxas de Jesus is reinstated. Ultimately ruling in favor Simeon
Roxas
As a general rule, the “date” in a holographic Will should include the day, month,
and year of its execution. However, if 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.
The Court further held that the prevailing policy is to require satisfaction of the
legal requirements in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of testamentary privilege. If a Will has been
executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Will
should be admitted to probate authority it was as if the Acknowledgement was
not made before a competent officer. The will is deemed void.
NOTES
 Focus on liberal construction of the rules on succession.
Maloles II vs Phillips | GR 129505 | 1-1-2000| Holographic Wills,etc.|
ABALOS
These are petitions for review on certiorari of the decisions of the Thirteenth and
the Special Eighth Divisions of the Court of Appeals which ruled that petitioner
has no right to intervene in the settlement of the estate of Dr. Arturo de Santos.
The cases were consolidated considering that they involve the same parties and
some of the issues raised are the same.
MEM AID
Palipat lipat ng courts (Branch 61?65?); Nagfefeeling na heir eh hindi naman lol
BRIEFER
There was a petition for a probate of will filed and Octavio wanted in on that
inheritance (heir daw siya and administrator) but the Court ruled that he is not a
compulsory heir.
DOCTRINE Only if the appointed executor is incompetent, refuses the trust, or
fails to give bond may the court appoint other persons to administer the estate.
FACTS
1. 1995: DR. ARTURO DE LOS SANTOS filed a petition for probate of his
will in RTC-Makati Branch 61. He declared that he has no compulsory
heirs and that he is naming as sole devisee and legatee the ARTURO DE
SANTOS FOUNDATION, INC. (ASF).
2. The named executrix is PACITA DE LOS REYES PHILLIPS. JUDGE
FERNANDO GOROSPE of said court determined that Arturo is of sound
mind and was not acting in duress when he signed his last will and
testament. The last will and testament was allowed to be probated.
3. Arturo died. Pacita, as executrix, filed a motion for the issuance of letters of
testamentary with the Branch 61. She however withdrew the motion but
later on refilled it with a diffeerent RTC Makati Branch 65.
4. OCTAVIO MALOLES II filed a motion for intervention with Branch 61
claiming that as a next of kin,23 he should be appointed as the
administrator of the estate and that he is an heir.
5. JUDGE ABAD SANTOS of Branch 65 issued an order transferring the
motion filed by Pacita to Branch 61. Judge Santos ratiocinated that since the
probate proceeding started in Branch 61, then it should be the same
court which should hear Pacita’s motion.
6. Branch 61 refused to consolidate and referred the case back to
Branch 65. Branch 65 subsequently consolidated the case. Eventually,
Branch 65 allowed the motion for intervention filed by Octavio.
ISSUE(S): W/N Octavio, being a creditor of the late Dr. Arturo de Santos, has a
right to intervene and oppose the petition for issuance of letters testamentary
filed by the respondent24
CASE ESCALATION
RTC: Granted the motion to intervene by Octavio
CA: Reversed; Octavio had not shown any right or interest to intervene
HELD: W/N Octavio may intervene in the case in question
12. NO.
13. Octavio, as nephew of the testator, is not a compulsory heir who may have
been preterited in the testator’s will. He does he have any right to intervene
in the settlement proceedings based on his allegation that he is a creditor of
the deceased.
23
him being the full blooded nephew of Arturo
24
W/N Octavio may intervene in the case in question
27
14. Since the testator instituted or named an executor in his will, it is
incumbent upon the Court to respect the desires of the testator.
15. Only if the appointed executor is incompetent, refuses the trust, or fails to
give bond may the court appoint other persons to administer the estate. None
of these circumstances is present in this case.
16. In sum: Octavio is not an heir. Arturo died testate. Next of kins may only
inherit if a person dies intestate. In this case, Arturo left a valid will which
expressly provided that Arturo is the sole legatee and devisee of his estate.
Additional Notes:
Rule 79, 1: Under this provision, it has been held that an "interested person"
is one who would be benefited by the estate, such as an heir, or one who has
a claim against the estate, such as a creditor, and whose interest is material
and direct, not merely incidental or contingent.25
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be
considered an "heir" of the testator. It is a fundamental rule of testamentary
succession that one who has no compulsory or forced heirs may dispose of his
entire estate by will.
Additionally, probate of will filed in Branch 61 has already terminated upon the
allowance of the will. Hence when Pacita filed a motion with Branch 65, the same
is already a separate proceeding and not a continuance of the now concluded
probate in Branch 61. There is therefore no reason for Branch 65 to refer back the
case to Branch 61.
Further even if the probate was terminated, under Rule 73 of the Rules of Court
concerning the venue of settlement of estates, it is provided that when a case is
filed in one branch, jurisdiction over the case does not attach to the branch or
judge alone, to the exclusion of the other branches.
DOROTHEO V. CA | G.R. NO. 108581| December 8, 1999| Holographic
Wills; Incorporation of Document by Reference; Codicils; Revocation of
Wills and Testamentary Dispositions; Republication and Revival of Wills;
Allowance and Disallowance of Wills | Jessica Clemente
25
Opposition to issuance of letters testamentary. Simultaneous petition for administration. - Any person interested in a
will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors,
or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may,
at the same time, be filed for letters of administration with the will annexed.
This is a petition to have the will of Alejandro Dorotheo be declared as
intrinsically void.
MEM AID
Once you go black, you never go back.
BRIEFER
Petitioner is the caretaker of the late Alejandro Dorotheo while respondents are
the decedent’s legal heirs. Petitioner’s special proceeding for the probate of
Dorotheo’s will was opposed by the respondents in a Motion to Declare the Will
Intrinsically Void. The trial court ruled in the respondents’ favor and held that
the Order be final and executory. Petitioner failed to appeal to this and now
comes to court assailing this decision. The Supreme Court ruled that an appeal
was the proper remedy that she should have first taken. However, since the
Decision attained finality, even if the will was wrong, it can no longer be
entertained.
DOCTRINE Please see #3 of the Held part.
FACTS
1. Private respondents were the heirs and legitimate children of the late
Alejandro Dorotheo while petitioner was the alleged caretaker and life partner of
the decedent. Petitioner filed a special proceeding for the probate of Dorotheo’s
will which was later admitted.
2. Respondents later filed a “Motion to Declare the Will Intrinsically Void” which
the trial court granted. Petitioner then moved for a motion for reconsideration
which was denied forcing her to appeal to the CA. However, this was met with a
dismissal which later on became final and executory. Later an entry of
judgment was issued by the Court of Appeals.
3. Instead of filing an appeal or motion of reconsideration to the CA,
petitioner went back to the RTC which issued an Order setting aside the final and
executive order of the CA as well as the Order directing the issuance of the writ of
execution on the ground that the same were merely interlocutory. Not receiving a
favorable decision from the trial court, the respondents appealed to the CA which
nullified the Orders given by the trial court.
4. Petitioner now comes to Court assailing the Order of the CA upholding the
intrinsic invalidity of Dorotheo’s will.
ISSUE(S): W/N a last will and testament admitted to probate but declared
instrinsically void in an order that has become final and executory still be given
effect. (NO)
28
HELD:
1. A final an executory decision or order can no longer be disturbed or reopened
no matter how erroneous it may be. It has been ruled that a final judgment on
probated wills, albeit erroneous, is binding on the whole world.
2. If no appeal is taken in due time from a judgment or order of the trial court, the
same attains finality by mere lapse of time. The matters of due execution of the
will and the capacity of the testator acquired the character of res judicata and
cannot be brought into question against, all juridical questions in connection
therewith being for once and forever closed. Such final order makes the will
conclusive against the whole world as to its extrinsic validity and due execution.
3. While the failure to appeal and/or assail the extrinsic validity of a will after it
has attained finality can no longer prosper, the case is different when it comes to
the will’s intrinsic validity as the same may still be raised after it has been
authenticated. Thus, it does not necessarily follow that an extrinsically valid last
will and testament is always intrinsically valid.
4. However, the failure to avail of the remedies provided by law constitute a
waiver. And if the party does not avail of other remedies despites its belief that it
was aggrieved by a decision or court action, then it is deemed to have fully agreed
and is satisfied with the decision.
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.| G.R.
No. 106720| September 15, 1994| Holographic Wills| Cruz, F.
This is an appeal by certiorari from the Decision of the Court of
Appeals dated March 30, 1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the
trial court is hereby REVERSED and SET ASIDE, and the petition for probate is
hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp.
Proc. No. Q-37171, and the instrument submitted for probate is the holographic
will of the late Annie Sand, who died on November 25, 1982.
MEM AID
A holographic will is being questioned because of the alterations and corrections
not signed by the decedent
BRIEFER
Annie Sand left a holographic will. The validity of the will is being questioned
because of alleged alterations and corrections not signed by the decedent. The
court ruled that the holographic will is valid.
DOCTRINE
Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
FACTS
1. In the will, decedent named as devisees, the following: petitioners Roberto and
Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah
Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
2. Petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence,
and was in every respect capacitated to dispose of her estate by will
3. Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting; it
contained alterations and corrections which were not duly signed by decedent;
and, the will was procured by petitioners through improper pressure and
undue influence.
4. Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It ruled that no evidence was presented to show
that the will in question is different from the will actually executed by the
testatrix. it is a well-established doctrine in the law on succession that in case
of doubt, testate succession should be preferred over intestate succession.
5. Ca reversed. It ruled that "the holographic will fails to meet the requirements
for its validity." 4 It held that the decedent did not comply with Articles 81326
and 814 of the New Civil Code
26
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 date, such date
validates the dispositions preceding it, whatever be the time of prior dispositions.
29
6. It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations
and cancellations made thereon had not been authenticated by decedent.
ISSUE(S): Whether the holographic will is valid?
HELD: YES
Section 9, Rule 76 of the Rules of Court27 and Article 839 of the New Civil Code28
provides for instances when a will shall be disallowed. These lists are exclusive;
no other grounds can serve to disallow a will. In a petition to admit a holographic
will to probate, the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities prescribed by law; (3) whether
the decedent had the necessary testamentary capacity at the time the will was
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will,
the testator must authenticate the same by his full signature.
27
Sec. 9, Rule 76
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend
that the instrument should be his will at the time of fixing his signature thereto.
28
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.
executed; and, (4) whether the execution of the will and its signing were the
voluntary acts of the decedent.
In the case of holographic wills, on the other hand, what assures authenticity is
the requirement that they be totally autographic or handwritten by the testator
himself, 7 as provided under Article 810 of the New Civil Code,29
Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects
the validity of the dispositions contained in the holographic will, but not its
probate. If the testator fails to sign and date some of the dispositions, the result is
that these dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.
In re: Last Will and Testatement of Enrique S. Lopez: Richard B. Lopez v.
Diana Jeanne Lopez et. al. | G.R. No. 189984 | 11-12-2012 | Testamentary
Succession > Revocation of Wills and Testamentary Dispositions | Jon
de Guia
The case originates from an action to probate a last will and testament with prayer
for the issuance of letters testamentary. This is an appeal from CA decision
affirming the RTC Manila decision disallowing such probate
MEM AID
Lopez, lo-pez, low-pays, low-pages. Lower number of pages in attestation than in
truth = invalid will
BRIEFER
Richard, the son of testator-decedent seeks (1) probate of his father’s will (2) his
appointment as executor and administrator, pursuant to the will. Son thus
presented the attesting witnesses and the notary public, all of whom testified to
the due execution of the will. Nonetheless, Courts disallowed the probate. Why?
The actual page count of the will, inclusive of the acknowledgement/attestation
page, is eight pages. The attestation portion only says seven pages.
DOCTRINE (footnotes for complete provisions)
[Article 805]30 is clear… the attestation must state the number of pages used
upon which the will is written… to safeguard against possible interpolation or
29 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.
30
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
30
omission of one or some of its pages and prevent any increase or decrease in the
pages.
While Article 80931 allows substantial compliance for defects in the form of the
attestation clause… Justice J.B.L. Reyes [clarifies]:
. . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings.
FACTS
 Enrique Lopez has a wife and four legitimate children
o Richard Lopez (petitioner) is his son
o Diana, Marybeth, and Victoria (respondents) are his daughters
 Enrique executed a Last Will and Testament constituting Richard as his
executor and administrator in 1996
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)
31
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)
 Said will has an acknowledgement/attestation portion claiming that it only
had seven pages, inclusive of the acknowledgement portion; in reality, it had
eight pages if you include the acknowledgement
 This is despite Art. 805’s mandate: “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”
 Enrique died in 1999
 Thus, petitioner-son Richard sought to probate Enrique’s will and filed for
letters testamentary in his favor with RTC Manila
 Respondent-daughters Marybeth and Victoria32 opposed, saying
o Richard exerted undue pressure and influence on their father to
execute the contested will
o The will was non-compliant with legal requisites on execution and
attestation (while not specifically stated in the case, such requisite
probably pertained to the page-count defect)
 To prove due execution, Richard presented the attesting witnesses and the
notary public who testified that
o Enrique read and signed the will on each page
o The witnesses did the same in each other’s presence and that of
Enrique’s
o Notary public Atty. Nolasco said Enrique consulted him to prepare
the will, and he did so, and that Enrique was of sound mind and
good health when the will was prepared and signed
ISSUE: Considering that the attestation clause states that the will was
only 7 pages, including the acknowledgement portion, when in fact, it
was actually 8 pages, is the will valid? (NO)
CASE ESCALATION
RTC Manila: Ruled against Richard Lopez and disallowed probate
CA: Affirmed
Note, the RTC and CA said that, to prove substantial compliance, there must
have been evidence aliunde (from an outside source) that explained the
discrepancy. No such evidence aliunde was presented33 in this case.
32
I have no idea why Diana isn’t included in the enumeration of persons that
opposed Richard’s petition even though she’s one of the respondents in this case
33
The digest-writer submits that the reason why they did not consider the
testimonies of the attesting witnesses and the notary public as sufficient is because
they did not categorically state (not found in the case, I mean) that the will was
actually eight pages, or that the same will Richard presented was the will they
attested to / notarized.
31

HELD:
The pertinent provisions of the Civil Code, as well as the explanation for the
application of the law, are in the DOCTRINE part.
Hence, CA properly sustained the disallowance of the will.
Jose Rivera v. IAC and Adelaido J. Rivera | G.R. No. 75005-06 | 02-15-
1990 | Holographic Wills | n.r.d.domingo
This case is a consolidated case of a petition for the issuance of letters of
administration and a petition for the probate of holographic wills.
MEM AID
Stranger challenging the authenticity of the will.
BRIEFER
Jose Rivera and Adelaido J. Rivera both claims to be the sole surviving heir of
Venancio Rivera. Jose Rivera claims that Venancio died intestate while Adelaido
presented a holographic will. Under Art. 811, the presentation of 3 witnesses is
required when the holographic will is contested. The Supreme Court considered
the holographic will valid and did not require the presentation of 3 witnesses
despite Jose’s contest. The Court rationed that Jose, being a mere stranger, did
not have any personality to contest the will and his opposition did not produce the
legal effect of requiring the three witnesses.
DOCTRINE
“Being a mere stranger, he had no personality to contest the wills and his
opposition thereto did not have the legal effect of requiring the three witnesses.”
FACTS
 Upon the death of Venancio Rivera, Jose Rivera, claiming to be the sole heir,
filed a petition for the issuance of letters of administration over Venancio’s
estate.
 Adelaido J. Rivera also claimed to be the sole heir and filed a petition for the
probate of the holographic wills.
 The case was consolidated and the trial court found that Jose Rivera was not
the son of the decedent but of a different Venancio Rivera who was married to
Maria Vital.
 In order to prove his claim, Jose presented a marriage certificate and his own
baptismal certificate. He further claims that Adelaido is the illegitimate son
of his father.
 Adelaido, on the other hand, presented his own birth certificate and the
baptismal certificate of Venancio which shows that Venacnio’s parents were
Magno Rivera and Gertrude de los Reyes as contrasted with the marriage
certificate submitted by Jose which indicated that Venancio was the son of
Florencio Rivera and Estrudez Reyes.
ISSUE(S):
Whether or not the presentation of 3 witnesses are required to prove the
authenticity of the holographic in view of Jose’s contest?
CASE ESCALATION
RTC: ruled in favor of Adelaida and said that Jose is the son of a different
Venancio
IAC: affirmed
HELD:
IAC decision affirmed.
NO. The presentation of 3 witnesses are not necessary in view of the fact
that Jose is a stranger to the action.
Art. 81134 provides that if the will is contested, then at least 3 witnesses who
knows the handwriting of the testator must be presented. In this case, Adelaida
presented only 1 witness despite the fact that the authenticity of the will was
questioned by Jose.
The Supreme Court ruled that the presentation of 3 witnesses is not necessary in
view of the fact that Jose is a stranger. Being a mere stranger, he had no
personality to contest the wills and his opposition thereto did not have the legal
effect of requiring 3 witnesses.
NOTES
The Court declared Jose to be be the son of a different Venancio based on the
following reasons:
1. Presumption of validity of marriage
34 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.
32
2. Conflict between the baptismal certificate submitted by Adelaida
and the Marriage Certificate submitted by Jose.
3. Illogical actions of Jose. (While, struggling to support himself and his
mother as a driver and gasoline attendant he did not ask support
from his alleged father when Venancio was filthy rich and was living
in the same town with another family.)
4. Maria Vital, the alleged wife of Venancio, was not presented by Jose.

33