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Tedoro CANEDA, et al., petitioners vs.

Hon. COURT OF APPEALS and William CABRERA, as Special Administrator

of the Estate of Mateo Caballero, respondents.
G.R. No. 103554, May 28, 1993
Mateo Caballero, a widower without any children, executed a last will and testam
ent before three attesting witnesses and he was duly assisted by his lawyer and
a notary public. It was declare therein that, among other things, that the testa
tor was leaving by way of legacies and devises his real and personal properties
to specific persons, all of whom do not appear to be related to Mateo. Not long
after, he himself filed a petition before the CFI seeking the probate of his las
t will and testament but the scheduled hearings were postponed, until the testat
or passed away before his petition could finally be heard by the probate court.
Benoni Cabrera, one of the legatees named in the will, sought his appointment as
special administrator of the testators estate but due to his death, he was succe
eded by William Cabreara, who was appointed by RTC which is already the probate
court. In the course of the hearing, herein petitioners claiming to be nephews a
nd nieces of the testator, appeared as oppositors and objected to the allowance
of the testators will on the ground that on the alleged date of its execution, th
e testator was already in the poor state of health such that he could not have p
ossibly executed the same; and that the signature of the testator is not genuine
. The probate court rendered a decision that such will is the Last Will and Test
ament of Mateo Caballero and that it was executed in accordance with all the req
uisites of the law. Upon appeal to CA, the petitioners asserted that the will in
question is null and void for the reason that its attestation clause is fatally
defective since it fails to specifically state the instrumental witnesses to th
e will witnessed the testator signing the will in their presence and that they a
lso signed the will and all the pages thereof in the presence of the testator an
d of one another. However, CA affirmed the decision of the trial court ruling an
d ruling that the attestation clause in the Last Will substantially complies wit
h Article 805 of the Civil Code. Due to denial of petitioners motion for reconsid
eration, hence this appeal before the Supreme Court.
Whether or not the attestation clause in the last will of Mateo Caballero is fat
ally defective such that whether or not it affects the validity of the will.
Whether or not the attestation clause complies with the substantial compliance p
ursuant to Article 809 of the Civil Code.
An attestation clause refers to that part of an ordinary will whereby the attest
ing witnesses certify that the instrument has been executed before them and to t
he manner of the execution of the same. It is a separate memorandum or record of
the facts surrounding the conduct of execution and once signed by the witnesses
, it gives affirmation to the fact that compliance with the essential formalitie
s required by law has been observed. Under the 3rd paragraph of Article 805, suc
h a clause, the complete lack of which would result in the invalidity of the wil
l, should state:
The number of pages used upon which the will is written;
That the testator signed, or expressly cause another to sign, the will and every
page thereof in the presence of the attesting witnesses; and
That the attesting witnesses witnessed the signing by the testator of the will a
nd all its pages, and that the said witnesses also signed the will and every pag
e thereof in the presence of the testator and of one another.
It will be noted that Article 805 requires that the witness should both attest a
nd subscribe to the will in the presence of the testator and of one another. Atte
station and subscription differ in meaning. Attestation is the act of sense, while
subscription is the act of the hand. The attestation clause herein assailed is t
hat while it recites that the testator indeed signed the will and all its pages
in the presence of the three attesting witnesses and states as well the number o
f pages that were used, the same does not expressly state therein the circumstan
ce that said witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other. What is then clearly lacking, is th
e statement that the witnesses signed the will and every page thereof in the pre
sence of the testator and of one another.
The absence of the statement required by law is a fatal defect or imperfection w
hich must necessarily result in the disallowance of the will that is here sought
to be admitted to probate. Petitioners are correct in pointing out that the def
ect in the attestation clause obviously cannot be characterized as merely involv
ing the form of the will or the language used therein which would warrant the ap
plication of the substantial compliance rule, as contemplated in Article 809 of
the Civil Code:
In the absence of bad faith, forgery, or fraud or undue and improper pressure an
d influence, defects and imperfection in the form of attestation or in the langu
age used therein shall not render the will invalid if it is not proved that the
will was in fact executed and attested in substantial compliance with all the re
quirements of Article 805.
The defects and imperfection must only be with respect to the form of the attest
ation or the language employed therein. Such defects or imperfection would not r
ender a will invalid should it be proved that the will was really executed and a
ttested in compliance with Article 805. These considerations do not apply where
the attestation clause totally omits the fact that the attesting witnesses signe
d each and every page of the will in the presence of the testator and of each ot
her. In such a situation, the defect is not only in the form or language of the
attestation clause but the total absence of a specific element required by Artic
le 805 to be specifically stated in the attestation clause of a will. That is pr
ecisely the defect complained of in the present case since there is no plausible
way by which it can be read into the questioned attestation clause statement, o
r an implication thereof, that the attesting witness did actually bear witness t
o the signing by the testator of the will and all of its pages and that said ins
trumental witnesses also signed the will and every page thereof in the presence
of the testator and of one another.
Rosario Feliciano VDA. DE RAMOS, et al., petitioners, vs.
COURT OF APPEALS, Marcelina (Martina) GUERRA, et al., respondents.
G.R. No. L-40804, January 31, 1978
Adelaida Nista claimed to be one of the instituted heirs, filed a petition for t
he probate of the alleged will and testament as well as codicil of the late Euge
nia Danila. Adelaida prayed that after due notice and hearing, the alleged will
and codicil be probated and that she or any other person be appointed as adminis
trator of the estate. Buenaventura and Marcelina, both surnamed Guerra, filed an
opposition alleging among others that they are legally adopted children of the
late spouses Florentino Guerra and Eugenia Danila; that the purported will and c
odicil were procured through fraud and undue influence; that the formalities req
uired by law for the execution of a will and codicil have not been complied with
; that the late Eugenia Danila had already executed her last will and testament
was duly probated and not revoked or annulled during her lifetime; and that Adel
aida is not competent and qualified to act as administration of the estate. Afte
rwards, the parties entered into a compromise agreement which was approved by th
e lower court. The petitioners herein filed a motion for leave to intervene as c
o-petitioners and filed a reply partly admitting and denying the material allega
tions in the opposition to the petition and alleging among other things, that op
positors repudiated their institution as heirs and executors because they failed
to cause the recording in the Register of Deeds the will and testament in accor
dance with the Rules and committed acts of ingratitude when they abandoned the t
estatrix and denied her support. Subsequently, the intervenors (petitioners here
in) also filed a motion for new trial and/or re-hearing and/or relief from judgm
ent and to set aside the judgment based on the compromise agreement and conseque
ntly, the oppositors interposed an opposition to the motion to which the interve
nors filed their reply. The lower court allowed and admitted to intervene the pe
titioners herein, the compromise agreement was disapproved except as regards to
their lawful rights, and the original petition and amended opposition to probate
of the alleged will and codicil stand. The lower court also denied the motion f
or the appointment of a special administrator filed by the intervenors. The latt
er filed a motion for reconsideration but was denied. The lower court then allow
ed the probate of the will although two of the instrumental witnesses testified
that they did not see the testatrix sign the will. The oppositors herein appeale
d to the Court of Appeals set aside the order of allowing the probate. Hence, th
is present action.
Whether or not the last will and testament and its accompanying codicil were exe
cuted in accordance with the formalities of the law considering the complicated
circumstances that two (2) of the attesting witnesses testified against their du
e execution while other non-subscribing witnesses testified to the contrary.
There is ample and satisfactory evidence to convince the Supreme Court that the
will and codicil were executed in accordance with the formalities required by la
w. It appears positively and convincingly that the documents were prepared by a
lawyer and the execution of the same was evidently supervised by his associate a
nd before whom the deeds were also acknowledged. The solemnity surrounding the e
xecution of a will is attended by some intricacies not usually within the compre
hension of an ordinary layman. The object is to close the door against bad faith
and fraud, to avoid substitution of the will and testament, and to guarantee th
eir truth and authenticity. If there should be any stress on the participation o
f lawyers in the execution of a will, other than an interested party, it cannot
be less than the exercise of their primary duty as members of the Bar to uphold
the lofty purpose of the law. There is no showing that the lawyers who participa
ted in the execution of the will had been remiss in their sworn duty. Consequent
ly, the Court of Appeals failed to consider the presumption of regularity on the
questioned documents. There were no incidents brought to the attention of the t
rial court to arouse suspicion of anomaly. While the opposition alleged fraud an
d undue influence, no evidence was presented to prove their occurrence. There is
no question that each and every page of the will and codicil carry the authenti
c signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly,
the attestation claim far from being deficient were properly signed by the atte
sting witnesses. Neither it is disputed that these witnesses took turns in signi
ng the will and codicil in the presence of each and the testatrix. Both instrume
nts were duly acknowledged before a Notary Public who was all the time present d
uring the execution.
Agapita N. CRUZ, petitioner vs.
Hon. Judge Guillermo P. VILLASOR and Manuel LUGAY, respondents.
G.R. No. L-32213, November 26, 1973
Agapita Cruz is the surviving spouse of the deceased Valente Cruz. Agapita filed
before the CFI an opposition for the allowance of the will of his late husband
alleging that the will was executed through fraud, deceit, misrepresentation and
undue influence because the said instrument was executed without the testator h
aving been fully informed of the content thereof, particularly as to what proper
ties he was disposing and that the supposed last will and testament was not exec
uted in accordance with law. However, due to unfavorable decision, Agapita appea
led by certiorari before the Supreme Court.
Whether or not the supposed last will and testament was executed in accordance w
ith law.
Of the three instrumental witnesses, one of them is at the same time the Notary
Public before whom the will was supposed to have been acknowledged.
The Supreme Court is inclined to sustain the last will and testament in question
was not executed in accordance with law. The notary public before whom the will
was acknowledged cannot be considered as the third instrumental witness since h
e cannot acknowledge before himself his having signed the will. To acknowledge b
efore means to avow. Consequently, if the third witness were the notary public h
imself, he would have to avow assent, or admit his having signed the will in fro
nt of himself. This cannot be done because he cannot split his personality into
To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two attesting witn
esses to the will which would be in contravention of the provisions of Article 8
05 requiring at least three credible witnesses to act as such and of Article 806
which requires that the testator and the required number of witnesses must appe
ar before the notary public to acknowledge the will. The result would be that on
ly two witnesses appeared before the notary public for or that purpose. In the c
ircumstance, the law would not be duly observed.
Rev. Father Lucio V. Garcia, petitioner, vs.
Hon. Conrado M. VASQUEZ, respondent.
G.R. No. L-26808, March 28, 1969
Gliceria Avelino del Rosario died unmarried and leaving no descendants, ascendan
ts, brother or sister thereafter, Consuelo S. Gonzales Vda. De Precilla, niece o
f the deceased petitioned for probate the alleged last will and testament of Gli
ceria dated December 1960 and that she be appointed as special administratrix. V
arious parties opposed the petition contending that the 1960 will was not intend
ed by Gliceria to be her true will and that there was a 1956 will executed by Gl
iceria were the oppositors were named as legatees. Consequently, Dr. Jesus V. Ta
mesis an ophthalmologist testified that Glicerias left eye suffered form cataract
in 1960 which made her vision mainly for viewing distant object but not for rea
ding prints.
Whether or not Article 808 regarding blind testator be followed in the instant c
ase to make Glicerias will valid?
For all intents and purposes of the rules on probate, the deceased Gliceria del
Rosario was like a blind testator and the due execution of her will would have r
equired observance of the provisions of Article 808 of the Civil Code.
Art. 808. If the testator is blind, the will shall be read to him twice; once, b
y the notary public before whom the will is acknowledged.
The rationale behind the requirement of reading the will to the testator if he i
s blind or incapable of reading the will himself, is to make the provisions of t
he will known to the testator, so that he may be able to object if they are not
in accordance with his wishes. That the aim of the law is to insure that the dis
positions of the will are properly communicated to and understood by the handica
pped testator, thus making them truly reflective of his desire, is evidenced by
the requirement that the will should be read to the latter, not only once but tw
ice, by two different persons, and that the witnesses have to act within the ran
ge of his (the testators) other senses.
Brigido Alvarado,
Cesar ALVARADO, petitioner vs.
Hon. Ramon GAVIOLA
G.R. No. 74695, September 14, 1993
Brigido Alvarado executed a notarial will entitled, Huling Habilin wherein he disi
nherited an illegitimate son, Cesar Alvarado, and expressly revoked a previously
executed a holographic will at the time awaiting probate before RTC. As testifi
ed to by the three instrumental witnesses, the notary public and Cesar, the test
ator did not read the final draft of the will, instead, Atty. Rino, as the lawye
r who drafted the document read the same aloud in the presence of the testator,
the three instrumental witnesses and the notary public. While the testators will
was admitted to probate, a codicil was subsequently executed changing some dispo
sitions in the notarial will to generate cash for the testators eye operation bec
ause he was then suffering from glaucoma. But the disinheritance and the revocat
ory clauses remained and as in the case of the notarial will, the testator did n
ot personally read the final draft of the codicil. Instead, it was Atty. Rino wh
o read it alound in his presence and in the presence of the three instrumental w
itnesses and of the notary public. Upon the testators death, Atty Rino as executo
r filed a petition for probate of the notarial will which was in turn opposed by
Cesar alleging that the will sought to be probated was not executed and atteste
d as required by law. Upon failure of Cesar to substantiate his Opposition, a Pr
obate Order was issued from which an appeal was made to IAC stating that the pro
bate of the deceaseds last will and codicil should have been denied because the t
estator was blind within the meaning of the law at the time his Huling Habilin and
the codicil thereto was executed;and that since reading required by Art. 808 wa
s admittedly not complied with. CA concluded that although Art. 808 was not foll
owed, there was, however, as substantial compliance.
Whether or not Brigido Alvarado was blind within the meaning of Article 808 at t
he time his Huling Habilin and codicil were executed.
If so, whether or not the requirement of double-reading in said Article was comp
lied with such that whether or not, they were validly executed.
Art. 808 applies not only to blind testators but also to those who, for one reas
on or another, are incapable of reading their wills. Since the deceased was incap
able of reading the final drafts of his will and codicil on the separate occasio
ns of their execution due to his poor, defective, or blurred vision, there can be no o
ther course but to conclude that he comes within the scope of the term blind as us
ed in Art. 808. Unless the contents were read to him, he had no way of ascertain
ing whether or not the lawyer who drafted the will and codicil did so conformabl
y with his instruction. Hence, to consider his will as validly executed and enti
tled to probate, it is essential to ascertain whether or not Art. 808 had been c
omplied with.
There is no evidence and Cesar does not allege that the contents of the will and
codicil were not sufficiently made known and communicated to the testator. On t
he contrary, with respect to the Huling Habilin, the day of the execution was not
the first time that the testator had affirmed the truth and authenticity of the
contents of the draft. Moreover, with four persons following the reading word fo
r word with their own copies, it can be safely concluded that the testator was r
easonably assured that what was read to him were the terms actually appearing on
the typewritten documents. This is especially true considering the fact that th
e three instrumental witnesses were persons known to the testator.
The spirit behind that law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in orde
r to insure authenticity of the will, the formal imperfection should be brushed
aside when they do not affect its purpose and which, when taken into account may
only defeat the testators will. Substantial compliance is acceptable where the p
urpose of the law has been satisfied, the reason being that the solemnities surr
ounding the execution of will are intended to protect the testator from all kind
s of fraud and trickery but are never intended to be so rigid and inflexible as
to destroy the testamentary privilege.
Abangan v Abangan
Avancena; Nov 12, 1919FACTS:

Trial Court admitted Ana Abangans

The will is described in thefollowing manner:

First sheet:

Contains all the disposition ofthe testatrix.

at the bottom
byMartin Montalban (in thename and under the directionof Ana Abangan)

Signed by three witnesses

Second sheet:

Contains only the attestationclause.

Duly signed by the same threewitnesses at the bottom.

Was not signed by thetestatrix herself

Anastacia Abangan (differentperson) et al. appealed from thisdecision. She says
that the probateshould have been denied on threegrounds:

Neither of the sheets weresigned
on the left margin
bythe testatrix and the threewitnesses

The pages were notnumbered by letters

It was written in a dialectthat the testatrix did notunderstand.Issue: WON the p
robate should have beenadmitted.Ruling: Yes. The trial court was correct inadmit
ting the probate.1. Re: signing on the left margin- The object of Act 2645, whic
hrequires that every sheet should be signedon the left margin, is only to avoid
thesubstitution of any sheet, thereby changingthe dispositions of the testatrix.
- Act 2645 only took intoconsideration cases of wills written onseveral sheets,
which did not have to besigned at the bottom by the testator and thewitnesses.-
But when the dispositions are dulywritten only on one sheet, and signed at thebo
ttom by the testator and the witnesses,the signatures on the left would bepurpos
eless.- If the signatures at the bottomalready guarantee its authenticity, anoth
ersignature on the left margin would beunnecessary.- This interpretation of Act
2645 alsoapplies to the page containing theattestation clause (the second sheet)
. Such asignature on the margin by the witnesseswould be a formality not require
d by thestatute.- It is also not required that thetestatrix sign on the attestat
ion clausebecause the attestation, as its name implies,appertains only to the wi
tnesses and not thetestator since the testator does attest, butexecutes the will
.2. Re: Page numbering-
Act 2645s object in requiring this
was to know whether any sheet of the willhas been removed.- But when all the dis
positive partsof the will are written on one sheet only, theobject of the Act 26
45 disappears becausethe removal of this single sheet althoughunnumbered, cannot
be hidden.
G.R. 122880, 12 April 2006, Tinga, J. (Third Division)
A will whose attestation clause does not contain the number of pages on which th
e will is written is fatally
defective. A will whose attestation clause is not signed by the instrumental wit
nesses is fatally defective. And perhaps
most importantly, a will which does not contain an acknowledgment, but a mere ju
rat, is fatally defective. Any one of
these defects is sufficient to deny probate. A notarial will with all three defe
cts is just aching for judicial rejection.
Felix Azuela filed a petition with the trial court for the probate of a notaria
l will purportedly
executed by Eugenia E. Igsolo on June 10, 1981 and notarized on the same day. Th
e will consisted of
two (2) pages and was written in Filipino. The attestation clause did not state
the number of pages
and it was not signed by the attesting witnesses at the bottom thereof. The said
witnesses affixed
their signatures on the left-hand margin of both pages of the will though. Geral
da Castillo opposed
the petition, claiming that the will was a forgery. She also argued that the wil
l was not executed and
attested to in accordance with law. She pointed out that the decedents signature
did not appear on
the second page of the will, and the will was not properly acknowledged.
The trial court held the will to be authentic and to have been executed in accor
dance with
law and, thus, admitted it to probate, calling to fore the modern tendency in res
pect to the
formalities in the execution of a willwith the end in view of giving the testator
more freedom in
expressing his last wishes. According to the trial court, the declaration at the
end of the will under
the sub-title, Patunay Ng Mga Saksi, comprised the attestation clause and the ackn
and was a substantial compliance with the requirements of the law. It also held
that the signing by the
subscribing witnesses on the left margin of the second page of the will containi
ng the attestation
clause and acknowledgment, instead of at the bottom thereof, substantially satis
fied the purpose of
identification and attestation of the will. The Court of Appeals, however, rever
sed the trial courts
decision and ordered the dismissal of the petition for probate. It noted that th
e attestation clause
failed to state the number of pages used in the will, thus rendering the will vo
id and undeserving of
Azuela argues that the requirement under Article 805 of the Civil Code that the
number of
pages used in a notarial will be stated in the attestation clause is merely direc
tory, rather than
mandatory, and thus susceptible to what he termed as the substantial compliance r
Whether or not the subject will complied with the requirements of the law and,
should be admitted to probate
The petition is DENIED.
A will whose attestation clause does not contain the number of pages on which th
e will is
written is fatally defective. A will whose attestation clause is not signed by t
he instrumental witnesses
is fatally defective. And perhaps most importantly, a will which does not contai
n an acknowledgment,
but a mere jurat, is fatally defective. Any one of these defects is sufficient t
o deny probate. A notarial
will with all three defects is just aching for judicial rejection. RECENT JURISP
Prior to the New Civil Code, the statutory provision governing the formal requi
rements of
wills was Section 618 of the Code of Civil Procedure. Extant therefrom is the re
quirement that the
attestation state the number of pages of the will. The enactment of the New Civi
l Code put in force a
rule of interpretation of the requirements of wills, at least insofar as the att
estation clause is
concerned, that may vary from the philosophy that governed the said Section 618.
Article 809 of the
Civil Code, the Code Commission opted to recommend a more liberal construction t
hrough the
substantial compliance rule. However, Justice J.B.L. Reyes cautioned that the rule
must be limited to
disregarding those defects that can be supplied by an examination of the will it
self: whether all the pages are
consecutively numbered; whether the signatures appear in each and every page; wh
ether the subscribing witnesses are
three or the will was notarized...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, bein
g the only check against perjury in the
probate proceedings. The Court suggested in Caneda v. Court of Appeals (G.R. No.
103554, May 28, 1993,
222 SCRA 781): the rule, as it now stands, is that omission which can be supplied
by an
examination of the will itself, without the need of resorting to extrinsic evide
nce, will not be fatal
and, correspondingly, would not obstruct the allowance to probate of the will be
ing assailed.
However, those omissions which cannot be supplied except by evidence aliunde wou
ld result in the
invalidation of the attestation clause and ultimately, of the will itself.
The failure of the attestation clause to state the number of pages on which the
will was
written remains a fatal flaw, despite Art. 809. This requirement aims at safegua
rding the will against
possible interpolation or omission of one or some of its pages and thus preventi
ng any increase or
decrease in the pages. Following Caneda, there is substantial compliance with th
is requirement if the
will states elsewhere in it how many pages it is comprised of, as was the situat
ion in Singson and
Taboada. In this case, however, there could have been no substantial compliance
with the
requirements under Art. 805 of the Civil Code since there is no statement in the
attestation clause or
anywhere in the will itself as to the number of pages which comprise the will. T
here was an
incomplete attempt to comply with this requisite, a space having been allotted f
or the insertion of the
number of pages in the attestation clause. Yet the blank was never filled in.
The subject will cannot be considered to have been validly attested to by the i
witnesses. While the signatures of the instrumental witnesses appear on the left
-hand margin of the
will, they do not appear at the bottom of the attestation clause. Art. 805 parti
cularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the
requisite that the will
be attested and subscribed by them. The signatures on the left-hand corner of ev
ery page signify,
among others, that the witnesses are aware that the page they are signing forms
part of the will. On
the other hand, the signatures to the attestation clause establish that the witn
esses are referring to the
statements contained in the attestation clause itself. An unsigned attestation c
lause results in an
unattested will. Even if the instrumental witnesses signed the left-hand margin
of the page containing
the unsigned attestation clause, such signatures cannot demonstrate these witnes
ses undertakings in
the clause, since the signatures that do appear on the page were directed toward
s a wholly different
The notary public who notarized the subject will wrote, Nilagdaan ko at ninotari
o ko ngayong
10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila. By no manner of contemplat
ion can these words
be construed as an acknowledgment. An acknowledgment is the act of one who has e
xecuted a deed
in going before some competent officer or court and declaring it to be his act o
r deed. It might be
possible to construe the averment as a jurat, even though it does not follow to
the usual language
thereof. A jurat is that part of an affidavit where the notary certifies that be
fore him/her, the
document was subscribed and sworn to by the executor.
It may not have been said before, but a notarial will that is not acknowledged
before a notary
public by the testator and the witnesses is fatally defective, even if it is sub
before a notary public. The importance of the requirement of acknowledgment is h
ighlighted by the
fact that it had been segregated from the other requirements under Art. 805 and
entrusted into a
separate provision, Art. 806. The express requirement of Art. 806 is that the wi
ll be acknowledged,
and not merely subscribed and sworn to. The acknowledgment coerces the testator
and the
instrumental witnesses to declare before an officer of the law that they had exe
cuted and subscribed
to the will as their own free act or deed. Such declaration is under oath and un
der pain of perjury,
thus allowing for the criminal prosecution of persons who participate in the exe
cution of spurious
wills, or those executed without the free consent of the testator. It also provi
des a further degree of
assurance that the testator is of certain mindset in making the testamentary dis
positions to those
persons he/she had designated in the will.