CIVIL LAW REVIEW (ATTY.
RUBEN BALANE)
ARTICLES 774/776
Union Bank v. Santibanez
452 SCRA 228 | Abu
FACTS:
On May 31, 1980, the First Countryside Credit Corporation
(FCCC) and Efraim Santibañez entered into a loan agreement in the
amount of P128,000.00. The amount was intended for the payment
of one (1) unit Ford 6600 Agricultural Tractor. In view thereof,
Efraim and his son, Edmund, executed a promissory note in favor of
the FCCC, the principal sum payable in five equal annual
amortizations. On Dec. 1980, FCCC and Efraim entered into another
loan agreement for the payment of another unit of Ford 6600 and
one unit of a Rotamotor. Again, Efraim and Edmund executed a
promissory note and a Continuing Guaranty Agreement for the later
loan. In 1981, Efraim died, leaving a holographic will. Testate
proceedings commenced before the RTC of Iloilo City. Edmund was
appointed as the special administrator of the estate. During the
pendency of the testate proceedings, the surviving heirs, Edmund
and his sister Florence, executed a Joint Agreement, wherein they
agreed to divide between themselves and take possession of the
three (3) tractors: (2) tractors for Edmund and (1) for Florence.
Each of them was to assume the indebtedness of their late father
to FCCC, corresponding to the tractor respectively taken by them.
In the meantime, a Deed of Assignment with Assumption of
Liabilities was executed by and between FCCC and Union Bank,
wherein the FCCC assigned all its assets and liabilities to Union
Bank.
Demand letters were sent by Union Bank to Edmund, but
the latter refused to pay. Thus, on February 5, 1988, Union Bank
filed a Complaint for sum of money against the heirs of Efraim
Santibañez, Edmund and Florence, before the RTC of Makati City.
Summonses were issued against both, but the one intended for
Edmund was not served since he was in the United States and
there was no information on his address or the date of his return to
the Philippines. Florence filed her Answer and alleged that the loan
documents did not bind her since she was not a party thereto.
Considering that the joint agreement signed by her and her brother
Edmund was not approved by the probate court, it was null and
void; hence, she was not liable to Union Bank under the joint
agreement.
Union Bank asserts that the obligation of the deceased had
passed to his legitimate heirs (Edmund and Florence) as provided
in Article 774 of the Civil Code; and that the unconditional signing
of the joint agreement estopped Florence, and that she cannot
deny her liability under the said document.
In her comment to the petition, Florence maintains that
Union Bank is trying to recover a sum of money from the deceased
Efraim Santibañez; thus the claim should have been filed with the
probate court. She points out that at the time of the execution of
the joint agreement there was already an existing probate
proceedings. She asserts that even if the agreement was
voluntarily executed by her and her brother Edmund, it should still
have been subjected to the approval of the court as it may
prejudice the estate, the heirs or third parties.
ISSUE:
W/N the claim of Union Bank should have been filed with the
probate court before which the testate estate of the late Efraim
Santibañez was pending. W/N the agreement between Edmund and
Florence (which was in effect, a partition of hte estate) was void
considering that it had not been approved by the probate court.
W/N there can be a valid partition among the heirs before the will is
probated.
HELD:
Well-settled is the rule that a probate court has the
jurisdiction to determine all the properties of the deceased, to
determine whether they should or should not be included in the
inventory or list of properties to be administered. The said court is
primarily concerned with the administration, liquidation and
distribution of the estate.
In our jurisdiction, the rule is that there can be no valid
partition among the heirs until after the will has been probated. In
the present case, Efraim left a holographic will which contained the
provision which reads as follows:
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(e) All other properties, real or personal, which I own and Uson v. Del Rosario
may be discovered later after my demise, shall be 92:530| Andres
distributed in the proportion indicated in the immediately
preceding paragraph in favor of Edmund and Florence, my FACTS:
children. This is an action for recovery of the ownership and
The above-quoted is an all-encompassing provision possession of five (5) parcels of land in Pangasinan, filed by Maria
embracing all the properties left by the decedent which might have Uson against Maria del Rosario and her four illegit children. Maria
escaped his mind at that time he was making his will, and other Uson was the lawful wife of Faustino Nebreda who upon his death
properties he may acquire thereafter. Included therein are the in 1945 left the lands involved in this litigation. Faustino Nebreda
three (3) subject tractors. This being so, any partition involving the left no other heir except his widow Maria Uson. However, plaintiff
said tractors among the heirs is not valid. The joint agreement claims that when Faustino Nebreda died in 1945, his common-law
executed by Edmund and Florence, partitioning the tractors among wife Maria del Rosario took possession illegally of said lands thus
themselves, is invalid, specially so since at the time of its depriving her of their possession and enjoyment. Defendants in
execution, there was already a pending proceeding for the probate their answer set up as special defense that Uson and her husband,
of their late father’s holographic will covering the said tractors. executed a public document whereby they agreed to separate as
The Court notes that the loan was contracted by the husband and wife and, in consideration of which Uson was given a
decedent. The bank, purportedly a creditor of the late Efraim parcel of land and in return she renounced her right to inherit any
Santibañez, should have thus filed its money claim with the probate other property that may be left by her husband upon his death. CFI
court in accordance with Section 5, Rule 86 of the Revised Rules of found for Uson. Defendants appealed.
Court.
The filing of a money claim against the decedent’s estate in
the probate court is mandatory. This requirement is for the purpose
of protecting the estate of the deceased by informing the executor
or administrator of the claims against it, thus enabling him to
examine each claim and to determine whether it is a proper one
which should be allowed. The plain and obvious design of the rule is
the speedy settlement of the affairs of the deceased and the early
delivery of the property to the distributees, legatees, or heirs.
Perusing the records of the case, nothing therein could hold
Florence accountable for any liability incurred by her late father.
The documentary evidence presented, particularly the promissory
notes and the continuing guaranty agreement, were executed and
signed only by the late Efraim Santibañez and his son Edmund. As
the petitioner failed to file its money claim with the probate court,
at most, it may only go after Edmund as co-maker of the decedent
under the said promissory notes and continuing guaranty.

ARTICLE 77

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ISSUE: cannot, therefore, be asserted to the impairment of the vested

1. W/N Uson has a right over the lands from the moment of right of Maria Uson over the lands in dispute.
death of her husband.
2. W/N the illegit children of deceased and his common-law
wife have successional rights.

HELD:
1. Yes. There is no dispute that Maria Uson, is the lawful wife of
Faustino Nebreda, former owner of the five parcels of lands
litigated in the present case. There is likewise no dispute that
Maria del Rosario, was merely a common-law wife with whom
she had four illegitimate children with the deceased. It likewise
appears that Faustino Nebreda died in 1945 much prior to the
effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five
parcels of land he was seized of at the time passed from the
moment of his death to his only heir, his widow Maria Uson (Art
777 NCC).As this Court aptly said, "The property belongs to the
heirs at the moment of the death of the ancestor as completely
as if the ancestor had executed and delivered to them a deed
for the same before his death". From that moment, therefore,
the rights of inheritance of Maria Uson over the lands in
question became vested.
The claim of the defendants that Maria Uson had
relinquished her right over the lands in question because she
expressly renounced to inherit any future property that her
husband may acquire and leave upon his death in the deed of
separation, cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract nor can it
be renounced.

2. No. The provisions of the NCC shall be given retroactive

effect even though the event which gave rise to them may have
occurred under the prior legislation only if no vested rights are
impaired. Hence, since the right of ownership of Maria Uson
over the lands in question became vested in 1945 upon the
death of her late husband, the new right recognized by the new
Civil Code in favor of the illegitimate children of the deceased

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Borja v. Borja such share is not determined until the subsequent liquidation of the
46 SCRA 577 | Ang estate.

FACTS:
Francisco de Borja filed a petition for probate of the will of
his wife who died, Josefa Tangco, with the CFI of Rizal. He was
appointed executor and administrator, until he died; his son Jose
became the sole administrator. Francisco had taken a 2 nd wife
Tasiana before he died; she instituted testate proceedings with the
CFI of Nueva Ecija upon his death and was appointed special
administatrix. Jose and Tasiana entered upon a compromise
agreement, but Tasiana opposed the approval of the compromise
agreement. She argues that it was no valid, because the heirs
cannot enter into such kind of agreement without first probating
the will of Francisco, and at the time the agreement was made, the
will was still being probated with the CFI of Nueva Ecija.

ISSUE:
W/N the compromise agreement is valid, even if the will of
Francisco has not yet been probated.

HELD:
YES, the compromise agreement is valid.
The agreement stipulated that Tasiana will receive P800,000
as full payment for her hereditary share in the estate of Francisco
and Josefa.
There was here no attempt to settle or distribute the estate
of Francisco de Borja among the heirs thereto before the probate of
his will. The clear object of the contract was merely the conveyance
by Tasiana Ongsingco of any and all her individual share and
interest, actual or eventual, in the estate of Francisco de Borja and
Josefa Tangco. There is no stipulation as to any other claimant,
creditor or legatee.
And as a hereditary share in a decedent's estate is
transmitted or vested immediately from the moment of the death
of such causante or predecessor in interest (Civil Code of the
Philippines, Art. 777) there is no legal bar to a successor (with
requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of

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Bonilla v. Barcena
71 SCRA 491 | Angliongto
FACTS:
On March 31, 1975 Fortunata Barcena, mother of minors
Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla,
instituted a civil action in the CFI of Abra, to quiet title over certain
parcels of land located in Abra. The defendants filed a motion to
dismiss the complaint on the ground that Fortunata Barcena is
dead and, therefore, has no legal capacity to sue. In the hearing for
the motion to dismiss, counsel for the plaintiff confirmed the death
of Fortunata Barcena, and asked for substitution by her minor
children and her husband; but the court after the hearing
immediately dismissed the case on the ground that a dead person
cannot be a real party in interest and has no legal personality to
sue.
ISSUE:
W/N the CFI erred in dismissing the complaint.
HELD:
While it is true that a person who is dead cannot sue in
court, yet he can be substituted by his heirs in pursuing the case
up to its completion. The records of this case show that the death
of Fortunata Barcena took place on July 9, 1975 while the complaint
was filed on March 31, 1975. This means that when the complaint
was filed on March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person.
Under Section 16, Rule 3 of the Rules of Court "whenever a party to
a pending case dies ... it shall be the duty of his attorney to inform
the court promptly of such death ... and to give the name and
residence of his executor, administrator, guardian or other legal
representatives." This duty was complied with by the counsel for
the deceased plaintiff when he manifested before the respondent
Court that Fortunata Barcena died on July 9, 1975 and asked for the
proper substitution of parties in the case. The respondent Court,
however, instead of allowing the substitution, dismissed the
complaint on the ground that a dead person has no legal
personality to sue. This is a grave error. Article 777 of the Civil
Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the moment
of the death of the decedent, the heirs become the absolute
owners of his property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto
except by the methods provided for by law. The moment of death
is the determining factor when the heirs acquire a definite right to
the inheritance whether such right be pure or contingent. The right
of the heirs to the property of the deceased vests in them even
before judicial declaration of their being heirs in the testate or
intestate proceedings. When Fortunata Barcena, therefore, died,
her claim or right to the parcels of land in litigation in Civil Case No.
856, was not extinguished by her death but was transmitted to her
heirs upon her death. Her heirs have thus acquired interest in the
properties in litigation and became parties in interest in the case.
There is, therefore, no reason for the respondent Court not to allow
their substitution as parties in interest for the deceased plaintiff.
The claim of the deceased plaintiff which is an action to
quiet title over the parcels of land in litigation affects primarily and
principally property and property rights and therefore is one that
survives even after her death. It is, therefore, the duty of the
respondent Court to order the legal representative of the deceased
plaintiff to appear and to be substituted for her. But what the
respondent Court did, upon being informed by the counsel for the
deceased plaintiff that the latter was dead, was to dismiss the
complaint. This should not have been done for under Section 17,
Rule 3 of the Rules of Court, it is even the duty of the court, if the
legal representative fails to appear, to order the opposing party to
procure the appointment of a legal representative of the deceased.
Unquestionably, the respondent Court has gravely abused its
discretion in not complying with the clear provision of the Rules of
Court in dismissing the complaint of the plaintiff in Civil Case No.
856 and refusing the substitution of parties in the case.
ARTICLE 783
Vitug v. CA
183 SCRA 755 | JEN SUCCESSION REVIEWER
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FACTS:
Romarico Vitug and Nenita Alonte were co-administrators of
Dolores Vitug’s (deceased) estate. Rowena Corona was the
executrix. Romarico, the deceased’s husband, filed a motion with
the probate court asking for authority to sell certain shares of stock
and real properties belonging to the estate to cover alleged
advances to the estate, which he claimed as personal funds. The
advances were used to pay estate taxes.
Corona opposed the motion on ground that the advances
came from a savings account which formed part of the conjugal
partnership properties and is part of the estate. Thus, there was no
ground for reimbursement. Romarico claims that the funds are his
exclusive property, having been acquired through a survivorship
agreement executed with his late wife and the bank.
The agreement stated that after the death of either one of
the spouses, the savings account shall belong to and be the sole
property of the survivor, and shall be payable to and collectible or
withdrawable by such survivor.
The lower court upheld the validity of the agreement and
granted the motion to sell. CA reversed stating that the
survivorship agreement constitutes a conveyance mortis causa
which did not comply with the formalities of a valid will. Assuming
that it was a donation inter vivos, it is a prohibited donation
(donation between spouses).
ISSUE:
W/N the survivorship agreement was valid.
HELD:
YES. The conveyance is not mortis causa, which should be
embodied in a will. A will is a personal, solemn, revocable and free
act by which a capacitated person disposes of his property and
rights and declares or complies with duties to take effect after his
death. The bequest or devise must pertain to the testator.
In this case, the savings account involved was in the nature
of conjugal funds. Since it was not shown that the funds belonged
exclusively to one party, it is presumed to be conjugal.
It is also not a donation inter vivos because it was to take
effect after the death of one party. It is also not a donation between
spouses because it involved no conveyance of a spouse’s own
properties to the other.
It was an error to include the savings account in the
inventory of the deceased’s assets because it is the separate
property of Romarico.
Thus, Romarico had the right to claim reimbursement.
A will is a personal, solemn, revocable and free act by which
a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death.
Survivorship agreements are permitted by the NCC.
However, its operation or effect must not be violative of the law
(i.e. used as a cloak to hide an inofficious donation or to transfer
property in fraud of creditors or to defeat the legitime of a forced
heir).
ARTICLE 804
Suroza v. Honrado
110 SCRA 388 | Atcheco
FACTS:
Spouses Mauro Suroza and Marcelina Salvador, who were
childless, reared a boy named Agapito. Agapito and his wife Nenita
de Vera had a daughter named Lilia. Nenita became Agapito’s
guardian when he became disabled. A certain Arsenia de la Cruz
also wanted to be his guardian in another proceeding but it was
dismissed. Arsenia then delivered a child named Marilyn Sy to
Marcelina who brought her up as a supposed daughter of Agapito.
Marilyn used the surname Suroza although not legally adopted by
Agapito. When Marcelina (who was an illiterate) was 73 years old,
she supposedly executed a notarial will which was in English and
thumbmarked by her. In the will, she allegedly bequeathed all her
properties to Marilyn. She also named as executrix her
laundrywoman, Marina Paje. Paje filed a petition for probate of
Marcelina’s will. Judge Honrado appointed Paje as administratrix
and issued orders allowing the latter to withdraw money from the
savings account of Marcelina and Marilyn, and instructing the
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sheriff to eject the occupants of testatrix’s house, among whom
was Nenita. She and the other occupants filed a motion to set aside
the order ejecting them, alleging that Agapito was the sole heir of
the deceased, and that Marilyn was not the decedent’s
granddaughter. Despite this, Judge Honrado issued an order
probating Marcelina’s will.
Nenita filed an omnibus petition to set aside proceedings,
admit opposition with counter-petition for administration and
preliminary injunction, and an opposition to the probate of the will
and a counter-petition for letters of administration, which were
dismissed by Judge Honrado. Instead of appealing, Nenita filed a
case to annul the probate proceedings but Judge Honrado
dismissed it. The judge then closed the testamentary proceeding
after noting that the executrix had delivered the estate to Marilyn,
and that the estate tax had been paid.
Ten months later, Nenita filed a complaint before the SC,
charging Judge Honrado with having probated the fraudulent will of
Marcelina. She 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 will was written. She further alleged that Judge Honrado did not
take into account the consequences of the preterition of testatrix’s
son, Agapito. Judge Honrado in his comment did not deal
specifically with the allegations but merely pointed to the fact that
Nenita did not appeal from the decree of probate and that in a
motion, she asked for a thirty day period within which to vacate the
house of the testatrix. Nenita subsequently filed in the CA a petition
for certiorari and prohibition against Judge Honrado wherein she
prayed that the will, the decree of probate and all the proceedings
in the probate case be declared void. The 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 certiorari.
Relying on that decision, Judge Honrado filed a MTD the
administrative case for having allegedly become moot and
academic.
ISSUE:
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.
HELD:
YES. Respondent judge, on perusing the will and noting that
it was written in English and was thumbmarked by an obviously
illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was
a language “understood and known” to the testatrix. But in its
concluding paragraph, it was stated that the will was read to the
testatrix “and translated into Filipino language”. 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.
The hasty preparation of the will is shown in the attestation
clause and notarial acknowledgment where Marcelina Salvador
Suroza is repeatedly referred to as the “testator” instead of
“testatrix”. Had respondent judge been careful and observant, he
could have noted not only the anomaly as to the language of the
will but also that there was something wrong in instituting the
supposed granddaughter as sole heiress and giving nothing at all to
her supposed father who was still alive. Furthermore, after the
hearing conducted by the deputy clerk of court, respondent judge
could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent 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.
Noble v. Abaja
450 SCRA 265 | Bautista
FACTS:
The case is about the probate of the will of Alipio Abada (Not
respondent Abaja). Petitioner Belinda Noble is the administratrix of
the estate of Abada. Respondent Alipio Abaja filed a petition for the
probate of Abada’s will. Petitioner Noble moved for dismissal of the
petition for probate.
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Caponong-Noble points out that nowhere in the will can one
discern that Abada knew the Spanish language. She alleges that
such defect is fatal and must result in the disallowance of the will.
ISSUE:
Should it be expressly stated in the will that it (the will) was in a
language known by the testator?
HELD:
No. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect used in the will.
[25] This is a matter that a party may establish by proof aliunde. In
this case, Alipio testified that Abada used to gather Spanish-
speaking people in their place. In these gatherings, Abada and his
companions would talk in the Spanish language. This sufficiently
proves that Abada speaks the Spanish language.
ARTICLES 805-806
Matias v. Salud
L-10751, 23 June 1958 | JEN SUCCESSION REVIEWER
FACTS:
The CFI denied probate of the will of Gabina Raquel. It must
be noted that Gabina Raquel was suffering from herpes zoster that
afflicted the right arm and shoulder of the testatrix, which made
writing difficult and a painful act. Thus, upon the insistence of the
attorney, Gabina attempted to sign, but since it was so painful she
just managed to thumbmarked the foot of the document and the
left margin at each page. The parties opposing the probate of the
will contended that the will was void due to the irregularities in the
execution thereof.
One of the points raised by the oppositors was that the
finger mark can not be regarded as the decedent’s valid signature
as it does not show distinct identifying ridgelines. And since the
finger mark was an invalid signature, there must appear in the
attestation clause that another person wrote the testator’s name at
his request.
ISSUE:
W/N the will was valid.
HELD:
YES. As to the clarity of the ridge impressions, it is so
dependent on aleatory requirements as to require dexterity that
can be expected of very few persons; testators should not be
required to possess the skill of trained officers.
And as to the validity of the thumbprints as signature, the SC held
that it has been held in a long line of cases that a thumbprint is
always a valid and sufficient signature for the purpose of complying
with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited in
cases of illness or infirmity. A thumbprint is considered as a valid
and sufficient signature in complying with the requirements of the
article.
Garcia v. Lacuesta
90:489 | Castillo
FACTS:
This case involves the will of Antero Mercado, which among
other defects was signed by the testator through a cross mark (an
“X”). The will was signed by Atty. Javier who wrote the name of
Mercado as testator and the latter allegedly wrote a cross mark
after his name. The CFI allowed the will but the CA disallowed it
because its attestation clause was defective for failing to certify 1)
that the will was signed by Atty. Javier at the express direction of
the testator, 2) that the testator wrote a cross at the end of his
name after Atty. Javier signed for him, and 3) that the 3 witnesses
signed the will in the presence of the testator and of each other.
ISSUE:
Whether the will should be allowed despite the defect of the
attestation clause since the testator had placed a cross mark
himself as his signature.
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HELD:
The attestation clause is fatally defective for failing to state
that Mercado directed Javier to write the testator’s name under his
express direction. Petitioner’s argument that such recital is
unnecessary because the testator signed the will himself using a
cross mark which should be considered the same as a thumb-mark
(which has been held sufficient in past cases) is not acceptable. A
cross mark is not the same as a thumb mark, because the cross
mark does not have the same trustworthiness of a thumb mark.
Barut v. Cabacungan
21:461 | Casuela
FACTS:
Barut applied for the probate of the will of deceased, Maria
Salomon. The testatrix stated in the will that being unable to read
or write, the will was read to her by Ciriaco Concepcion and
Timotea Inoselda and that she had instructed Severo Agayan to
sign her name to it as testatrix. The probate was contested by a
number of the relatives of the deceased on various grounds.
The probate court found that the will was not entitled to
probate because “the handwriting of the person who it is alleged
signed the name of the testatrix to the will for and on her behalf
looked more like the handwriting of one of the other witnesses to
the will than to the person whose handwriting it was alleged to be”
(i.e. The probate court denied probate because the signature
seemed to not have been by Severo Agayan but by another
witness).
ISSUE:
Was the dissimilarity in handwriting sufficient to deny probate of
the will?
HELD:
No. The SC found that the mere dissimilarity in writing is
sufficient to overcome the uncontradicted testimony of all the
witnesses that the signature of the testatrix was written by Severo
Agayan. It is also immaterial who writes the name of the testatrix
provided it is written at her request and in her presence and in the
presence of all the witnesses to the execution of the will.
Based on Section 618 of the Code of Civil Procedure, it is
clear that with respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his
own or not. The important thing is that it clearly appears that the
name of the testatrix was signed at her express direction in the
presence of 3 witnesses and that they attested and subscribed it in
her presence and in the presence of each other. It may be wise that
the one who signs the testator’s name signs also his own; but that
is not essential to the validity of the will.
The court also held that the 3 cases cited by the lower court
was not applicable. In those cases, the person who signed the will
for the testator wrote his own name instead of the testator’s, so
that the testator’s name nowhere appeared in the will, and were
thus wills not duly executed.
Nera v. Rimando
18:450 | Cukingnan
FACTS:
The only question raised by the evidence in this case as to
the due execution of the instrument propounded as a will in the
court below, is whether one of the subscribing witnesses was
present in the small room where it was executed at the time when
the testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or
ten feet away, in a large room connecting with the smaller room by
a doorway, across which was hung a curtain which made it
impossible for one in the outside room to see the testator and the
other subscribing witnesses in the act of attaching their signatures
to the instrument.
HELD:
Citing Jaboneta v. Gustilo, the court held that “The true test
of presence of the testator and the witnesses in the execution of a
will is not whether they actually saw each other sign, but whether
they might have been seen each other sign, had they chosen to do
so, considering their mental and physical condition and position
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with relation to each other at the moment of inscription of each
signature.”
But it is especially to be noted that the position of the
parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see
each other sign if they choose to do so.
The question is 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 the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would
open the door to the possibility of all manner of fraud, substitution,
and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the
execution of a will.
Icasiano v. Icasiano
11 SCRA 422 | Dela Cuesta
FACTS:
Celso Icasiano filed a petition for the allowance and
admission to probate of the alleged will of Josefa Villacorte, and for
his appointment as executor thereof. Natividad and Enrique
Icasiano, a daughter and son of the testatrix, filed their opposition
thereto. During the course of the trial, on 19 March 1959, Celso,
started to present his evidence. But later, on 1 June 1959, he then
filed an amended and supplemental petition, alleging that the
decedent had left a will executed in duplicate and with all the legal
requirements, and that he was submitting the duplicate to the
court, which he found only on 26 May 1959. Natividad and Enrique
filed their opposition, but the will and its duplicate was admitted to
probate by the trial court. Hence, this appeal by the oppositors.
Oppositors-appellants (Natividad and Enrique) in turn
introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate are not genuine, nor were they written or
affixed on the same occasion as the original, and further aver that
granting that the documents were genuine, they were executed
through mistake and with undue influence and pressure because
the testatrix was deceived into adopting as her last will and
testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the
provisions and dispositions thereof, whereby proponents- appellees
stand to profit from properties held by them as attorneys- in-fact of
the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties
not mentioned in the will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion of free disposal.
ISSUE:
Was the trial court correct in admitting the will and its duplicate to
probate given the allegations of forgery of the testator’s signature,
or that the will was executed under circumstances constituting
fraud and undue influence and pressure?
(Not raised by the appellants in the case but discussed by the
Court and in Sir’s book) Is the failure of one of the witnesses to sign
a page of the will fatal to its validity?
HELD:
The Supreme Court dismissed the appeal, holding that both
the will and its duplicate are valid in all respects.
On the allegations of forgery, fraud and undue influence:
The Court is satisfied that all the requisites for the validity of
a will have been complied with. The opinion of a handwriting
expert trying to prove forgery of the testatrix's signature failed to
convince the Court, not only because it is directly contradicted by
another expert but principally because of the paucity of the
standards used by him (only three other signatures), considering
the advanced age of the testatrix, the evident variability of her
signature, and the effect of writing fatigue.
Similarly, the alleged slight variance in blueness of the ink in
the admitted and questioned signatures does not appear reliable,
considering that standard and challenged writings were affixed to
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different kinds of paper, with different surfaces and reflecting

power. On the whole, the testimony of the oppositor's expert is
insufficient to overcome that of the notary and the two
instrumental witnesses as to the will’s execution, which were
presented by Celso during the trial.
Nor is there adequate evidence of fraud or undue influence.
The fact that some heirs are more favored than others is proof of
neither. Diversity of apportionment is the usual reason for making
a testament; otherwise, the decedent might as well die intestate.
The testamentary disposition that the heirs should not inquire into
other property and that they should respect the distribution made
in the will, under penalty of forfeiture of their shares in the free
part, do not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of
the estate being diverted into the hands of non- heirs and
speculators. Whether these clauses are valid or not is a matter to
be litigated on another occasion. It is also well to note that fraud
and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows absence
of definite evidence against the validity of the will.

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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
On the failure of a witness to sign a page in the original, but signed
all pages in the duplicate:
The records show that the original of the will consists of five
pages, and while signed at the end and in every page, it does not
contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page 3 thereof; but the duplicate copy attached to
the amended and supplemental petition is signed by the testatrix
and her three attesting witnesses in each and every page.
Witness Atty. Natividad, who testified on his failure to sign
page 3 of the original, admits that he may have lifted two pages
instead of one when he signed the same, but affirmed that page 3
was signed in his presence.
The failure Atty. Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as
well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause
and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
Therefore, Atty. Natividad’s failure to sign page 3 of the original
through mere inadvertence does not affect the will’s validity.
Impossibility of substitution of this page is assured not only
the fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of the
seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so
strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct
she had no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory
requisites.
This would not be the first time that this Court departs from
a strict and literal application of the statutory requirements, where
the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with
the only page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to mark the
first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is
in existence and available, the duplicate is not entitled to probate.
Since they opposed probate of the original because it lacked one
signature in its third page, it is easily discerned that oppositors-
appellants run here into a dilemma: if the original is defective and
invalid, then in law there is no other will but the duly signed carbon
duplicate, and the same is probatable. If the original is valid and
can be probated, then the objection to the signed duplicate need
not be considered, being superfluous and irrelevant. At any rate,
said duplicate serves to prove that the omission of one signature in
the third page of the original testament was inadvertent and not
intentional.
Cagro v. Cagro
92:1032 | Dina
FACTS:
Vicente Cagro died on Feb. 14, 1949 in Samar. Since the
decedent allegedly made a will prior to his death, the will was
probated before the CFI of Samar. However, the oppositors-
appellant objected the probate proceeding alleging that the will is
fatally defective because its attestation clause is not signed by the
attesting witnesses. It is undisputed that the signatures of the three
witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the
witnesses on the left-hand margin.
ISSUE:
W/N the will may be probated even if the signatures of the
witnesses do not appear at the bottom of the attestation clause,
and instead, they were placed on the left-hand margin of the page
containing the same.
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
HELD:
No. The position taken by the oppositor-appellant is correct.
The attestation clause is 'a memorandum of the facts attending the
execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner-appellee contends that signatures of the
three witnesses on the left-hand margin conform substantially to
the law and may be deemed as their signatures to the attestation
clause. This is untenable, because said signatures are in
compliance with the legal mandate that the will be signed on the
left-hand margin of all its pages. If an attestation clause not signed
by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or
all of the witnesses.
Bautista Angelo, J. dissenting:
I dissent. In my opinion the will in question has substantially
complied with the formalities of the law and, therefore, should be
admitted to probate. It appears that the will was signed by the
testator and was attested by three instrumental witnesses, not only
at the bottom, but also on the left-hand margin. The witnesses
testified not only that the will was signed by the testator in their
presence and in the presence of each other but also that when they
did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by
the oppositors to the validity of the will is the fact that the
signatures of the instrumental witnesses do not appear
immediately after the attestation clause.
This objection is too technical to be entertained. In the case
of Abangan vs. Abangan, (40 Phil. 476), this court said that when
the testamentary dispositions "are wholly written on only one sheet
signed at the bottom by the testator and three witnesses (as the
instant case),their signatures on the left margin of said sheet would
be completely purposeless." In such a case, the court said, the
requirement of the signatures on the left hand margin was not
necessary because the purpose of the law — which is to avoid the
substitution of any of the sheets of the will, thereby changing the
testator's dispositions — has already been accomplished. We may
say the same thing in connection with the will under consideration
because while the three instrumental witnesses did not sign
immediately by the majority that it may have been only added on a
subsequent occasion and not at the uncontradicted testimony of
said witnesses to the effect that such attestation clause was
already written in the will when the same was signed.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista's dissenting opinion and may
add that the majority decision erroneously sets down as a fact that
the attestation clause was not signed when the witnesses’
signatures appear on the left margin and the real and only question
is whether such signatures are legally sufficient. The law on wills
does not provide that the attesting witness should sign the clause
at the bottom. In the absence of such provision, there is no reason
why the signatures on the margin are not acceptable
Cruz v. Villasor
54 SCRA 752 | Dizon
FACTS:
The CFI of Cebu allowed the probate of Valente Z. Cruz’s last
will and testament. His surviving spouse, Agapita Cruz, opposed the
allowance of the will alleging it was executed through fraud, deceit,
misrepresentation and undue influence; that the said instrument
was execute without the testator having been fully informed of the
content thereof, particularly as to what properties he was disposing
and that the supposed last will and testament was not executed in
accordance with law. Agapita appealed the allowance of the will by
certiorari.
ISSUE:
W/N the will was executed in accordance with law (particularly
Articles 805 and 806 of the NCC, the first requiring at least three
credible witnesses to attest and subscribe to the will, and the
second requiring the testator and the witnesses to acknowledge
the will before a notary public.).
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
HELD:
NO. Of the three instrumental witnesses to the will, one of
them (Atty. Teves) is at the same time the Notary Public before
whom the will was supposed to have been acknowledged. The
notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma; Castro
v. Castro); to own as genuine, to assent, to admit; and "before"
means in front or preceding in space or ahead of. Consequently, if
the third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of himself.
This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to
obtain would be sanctioning a sheer absurdity. Furthermore, the
function of a notary public is, among others, to guard against any
illegal or immoral arrangement (Balinon v. De Leon). That function
would defeated if the notary public were one of the attesting
instrumental witnesses. It would place him in inconsistent position
and the very purpose of acknowledgment, which is to minimize
fraud, would be thwarted.
Admittedly, there are American precedents holding that
notary public may, in addition, act as a witness to the executive of
the document he has notarized. There are others holding that his
signing merely as notary in a will nonetheless makes him a witness
thereon. But these authorities do not serve the purpose of the law
in this jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to in these cases merely
acted as instrumental, subscribing attesting witnesses, and not as
acknowledging witnesses. Here, the notary public acted not only as
attesting witness but also acknowledging witness, a situation not
envisaged by Article 805-06. Probate of will set aside.
Javellana v. Ledesma
97:258 | Enriquez
FACTS:
The Court of First Instance of Iloilo admitted to probate the
documents in the Visayan dialectas the testament and codicil duly
executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952, respectively, with
Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as
witnesses. The contestant, Matea Ledesma, sister and nearest
surviving relative of said deceased, appealed from the decision,
insisting that the said exhibits were not executed in conformity with
law. Ledesma is questioning the validity of the codicil contending
that the fact that the notary did not sign the instrument in the
presence of the testator and the witness made the codicil was not
executed in conformity with the law
ISSUE:
W/N the codicil was validly executed.
HELD:
The instrumental witnesses (who happen to be the same
ones who attested the will of 1950) asserted that after the codicil
had been signed by the testatrix and the witnesses at the San
Pablo Hospital, 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. The variance does not necessarily
imply conscious perversion of truth on the part of the witnesses,
but appears rather due to a well-established phenomenon, the
tendency of the mind, in recalling past events, to substitute the
usual and habitual for what differs slightly from it.
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. The new Civil Code does
not require that the signing of the testator, witnesses and notary
should be accomplished in one single act. A comparison of Articles
805 and 806 of the new Civil Code reveals that while testator and
witnesses sign in the presence of each other, all that is thereafter
required is that "every will must be acknowledged before a notary
public by the testator and the witnesses" (Art. 806); i.e., that the
latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
testamentary disposition. This was done in this case. The
subsequent signing and sealing by the notary of his certification
that the testament was duly acknowledged by the participants
therein is no part of the acknowledgment itself nor of the
testamentary act. Hence their separate execution out of the
presence of the testatrix and her witnesses cannot be said to
violate the rule that testaments should be completed without
interruption. It is noteworthy that Article 806 of the new Civil Code
does not contain words requiring that the testator and the
witnesses should acknowledge the testament on the same day or
occasion that it was executed.
Ortega v. Valmonte
478 SCRA 247 | Escosia
FACTS:
Two years after the arrival of Placido from the United States
and at the age of 80 he wed Josefina who was then 28 years old.
But in a little more than two years of wedded bliss, Placido died.
Placido executed a notarial last will and testament written in
English and consisting of 2 pages, and dated 15 June 1983¸but
acknowledged only on 9 August 1983. The allowance to probate of
this will was opposed by Leticia, Placido’s sister. According to the
notary public who notarized the testator’s will, after the testator
instructed him on the terms and dispositions he wanted on the will,
the notary public told them to come back on 15 August 1983 to
give him time to prepare. The testator and his witnesses returned
on the appointed date but the notary public was out of town so
they were instructed by his wife to come back on 9 August 1983.
The formal execution was actually on 9 August 1983. He reasoned
he no longer changed the typewritten date of 15 June 1983
because he did not like the document to appear dirty.
Petitioner’s argument:
1. At the time of the execution of the notarial will Placido was
already 83 years old and was no longer of sound mind.
2. Josefina conspired with the notary public and the 3 attesting
witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the
attestation of the will.
ISSUE:
1. W/N Placido has testamentary capacity at the time he
allegedly executed the will.
2. W/N the signature of Placido in the will was procured by
fraud or trickery.
HELD:
1. YES. Despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his
shares in them and even their location. As regards the proper
objects of his bounty, it was sufficient that he identified his wife
as sole beneficiary. The omission of some relatives from the will
did not affect its formal validity. There being no showing of
fraud in its execution, intent in its disposition becomes
irrelevant.
2. NO. Fraud is a trick, secret devise, false statement, or
pretense, by which the subject of it is cheated. It may be of
such character that the testator is misled or deceived as to the
nature or contents of the document which he executes, or it
may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a certain
will which, but for fraud, he would not have made.
The party challenging the will bears the burden of proving
the existence of fraud at the time of its execution. The burden
to show otherwise shifts to the proponent of the will only upon a
showing of credible evidence of fraud.
Omission of some relatives does not affect the due
execution of a will. Moreover, the conflict between the dates
appearing on the will does not invalidate the document,
“because the law does not even require that a notarial
will be executed and acknowledged on the same
occasion. The variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and instrumental
witnesses.
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Guerrero v. Bihis
521 SCRA 394 | Estorninos

FACTS:
Felisa Tamio de Buenaventura, mother of petitioner Bella A.
Guerrero and respondent Resurreccion A. Bihis, died. Guerrero filed
for probate in the RTC QC. Respondent Bihis opposed her elder
sister's petition on the following grounds: the will was not executed
and attested as required by law; its attestation clause and
acknowledgment did not comply with the requirements of the law;
the signature of the testatrix was procured by fraud and petitioner
and her children procured the will through undue and improper
pressure and influence. Petitioner Guerrero was appointes special
administratrix. Respondent opposed petitioner's appointment but
subsequently withdrew her opposition. The trial court denied the
probate of the will ruling that Article 806 of the Civil Code was not
complied with because the will was "acknowledged" by the testatrix
and the witnesses at the testatrix's residence at No. 40 Kanlaon
Street, Quezon City before Atty. Macario O. Directo who was a
commissioned notary public for and in Caloocan City.

ISSUE:
Did the will "acknowledged" by the testatrix and the instrumental
witnesses before a notary public acting outside the place of his
commission satisfy the requirement under Article 806 of the Civil
Code?

HELD:
No. One of the formalities required by law in connection with
the execution of a notarial will is that it must be acknowledged
before a notary public by the testator and the witnesses. 6 This
formal requirement is one of the indispensable requisites for the
validity of a will. 7 In other words, a notarial will that is not
acknowledged before a notary public by the testator and the
instrumental witnesses is void and cannot be accepted for probate.
cDICaS
The Notarial law provides: SECTION 240.Territorial
jurisdiction. — The jurisdiction of a notary public in a province shall
be co-extensive with the province. The jurisdiction of a notary

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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
public in the City of Manila shall be co-extensive with said city. No
notary shall possess authority to do any notarial act beyond the
limits of his jurisdiction.
The compulsory language of Article 806 of the Civil Code
was not complied with and the interdiction of Article 240 of the
Notarial Law was breached. Ineluctably, the acts of the testatrix,
her witnesses and Atty. Directo were all completely void.
Lee v. Tambago
544 SCRA 393 | Fortea
FACTS:
Complainant, Manuel L. Lee, charged respondent, Atty.
Regino B. Tambago, with violation of Notarial Law and the Ethics of
the legal profession for notarizing a will that is alleged to be
spurious in nature in containing forged signatures of his father, the
decedent, Vicente Lee Sr. and two other witnesses. In the said will,
the decedent supposedly 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 complainant.
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.
Furthermore, the signature of the testator was not the same as his
signature as donor in a deed of donation which supposedly
contained his purported signature. Complainant averred that the
signatures of his deceased father in the will and in the deed of
donation were "in any way entirely and diametrically opposed from
one another in all angle[s]."
Complainant also questioned the absence of notation of the
residence certificates of the purported witnesses Noynay and Grajo.
He alleged that their signatures had likewise been forged and
merely copied from their respective voters’ affidavits.
Complainant further asserted that no copy of such
purported will was on file in the archives division of the Records
Management and Archives Office of the National Commission for
Culture and the Arts (NCCA).
ISSUE:
Was the will spurious?
HELD:
Yes, thus Tambago violated the Notarial Law and the ethics
of legal profession.
The law provides for 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.
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 three or more
credible witnesses in the presence of the testator and of one
another. The will in question was attested by only two witnesses.
On this circumstance alone, the will must be considered void. 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. The Civil Code likewise
requires that a will must be acknowledged before a notary public
by the testator and the witnesses. 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.
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.
A cursory examination of the acknowledgment of 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. 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.
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
As the acknowledging officer of the contested will,
respondent was required to faithfully observe the formalities of a
will and those of notarization. These formalities are mandatory and
cannot be disregarded.
ARTICLE 808
Garcia v. Vasquez
32 SCRA 489 | Grapilon
FACTS:
This is a petition for appeal from the CFI of Manila admitting
to probate the will of Gliceria Avelino del Rosario (“Gliceria”)
executed in 1960. Likewise, this is also an appeal to remove the
current administrator, Consuelo Gonzales-Precilla( “Consuelo”) as
special administratrix of the estate on the ground of Consuelo
possesses interest adverse to the estate and to order the RD of
Manila to annotate on the registered lands a notice of Lis Pendens.
When Gliceria died she had no descendants, ascendants,
bros or sisses and 90 yrs old. After which, her niece, Consuelo
petitioned the court to be the administratrix of the properties. The
court approved this because Consuelo has been was already
managing the properties of the deceased during her lifetime. What
the respondents allege is that in the last years of the deceased,
Consuelo sought the transfer of certain parcels of land valued at
300k for a sale price of 30k to her husband Alfonso through fraud
and intimidation. In addition, the oppositors presented evidence
that Consuelo asked the court to issue new Certificates of Titles to
certain parcels of land for the purpose of preparing the inventory to
be used in the probate. Also shown was that NEW TCTs were issued
by the RD for certain lands of the deceased after Consuelo asked
for the old TCTs.
At the end of the probate proceedings, the court ruled that
Counsuelo should be made the administrator, and that the will was
duly executed because of these reasons: NO EVIDENCE HAS BEEN
PRESENTED to establish that the deceased was not of sound mind,
that eventough the allegations state that the deceased prepared
another will in 1956 (12pages), the latter is not prevented from
executing another will in 1960 (1page), and that inconsistencies in
the testimonies of the witnesses prove their truthfulness.
ISSUE:
Was the will in 1960 (1 page) duly/properly executed?
HELD:
NO. Provision of Article 808 mandatory. Therefore, For all
intents and purposes of the rules on probate, the testatrix was like
a blind testator, and the due execution of her will would have
required observance of Article 808. 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. Likewise,
the 1970 will was done in Tagalog which the deceased is not well
versed but in Spanish. This creates doubt as to the due execution
of the will and as well as the typographical errors contain therein
which show the haste in preparing the 1 page will as compared to
the 12 page will created in 1956 written in Spanish. ALSO, as to the
blindness, there was proof given by the testimony of the doctor
that the deceased could not read at near distances because of
cataracts. (Testatrix’s vision was mainly for viewing distant objects
and not for reading print.) Since there is no proof that it was read to
the deceased twice, the will was NOT duly executed.
ALSO, Consuelo should be removed as administrator
because she is not expected to sue her own husband to reconvey
the lands to the estate alleged to have been transferred by the
deceased to her own husband.
The notice of lis pendens is also not proper where the issue
is not an action in rem, affecting real property or the title thereto.
Alvarado v. Gaviola
226 SCRA 347 | JEN SUCCESSION REVIEWER
FACTS:
On 5 November 1977, 79-year old Brigido Alvarado
executed a notarial will entitled “Huling Habilin” wherein he
disinherited an illegitimate son, petitioner Cesar Alvarado, and
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
expressly revoked a previously executed holographic will at the
time awaiting probate before the RTC of Laguna.
According to Bayani Ma. Rino, private respondent, he was
present when the said notarial will was executed, together with
three instrumental witnesses and the notary public, where the
testator did not read the will himself, suffering as he did from
glaucoma.
Rino, a lawyer, drafted the eight-page document and read
the same aloud before the testator, the three instrumental
witnesses and the notary public, the latter four following the
reading with their own respective copies previously furnished them.
Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng
Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa
Nobiembre 5, 1977 ni Brigido Alvarado” was executed changing
some dispositions in the notarial will to generate cash for the
testator’s eye operation.
Said codicil was likewise not read by Brigido Alvarado and
was read in the same manner as with the previously executed will.
When the notarial will was submitted to the court for
probate, Cesar Alvarado filed his opposition as he said that the will
was not executed and attested as required by law; that the testator
was insane or mentally incapacitated due to senility and old age;
that the will was executed under duress, or influence of fear or
threats; that it was procured by undue pressure and influence on
the part of the beneficiary; and that the signature of the testator
was procured by fraud or trick.
ISSUE:
W/N notarial will of Brigido Alvarado should be admitted to probate
despite allegations of defects in the execution and attestation
thereof as testator was allegedly blind at the time of execution and
the double-reading requirement under Art. 808 of the NCC was not
complied with.
HELD:
YES. The spirit behind the law was served though the letter
was not. Although there should be strict compliance with the
substantial requirements of law in order to insure the authenticity
of the will, the formal imperfections should be brushed aside when
they do not affect its purpose and which, when taken into account,
may only defeat the testator’s will.
Cesar Alvardo was correct in asserting that his father was
not totally blind (of counting fingers at 3 feet) when the will and
codicil were executed, but he can be so considered for purposes of
Art. 808.
That Art. 808 was not followed strictly is beyond cavil.
However, in the case at bar, there was substantial
compliance where the purpose of the law has been satisfied: that of
making the provisions known to the testator who is blind or
incapable of reading the will himself (as when he is
illiterate) and enabling him to object if they do not accord with his
wishes.
Rino read the testator’s will and codicil aloud in the
presence of the testator, his three instrumental witnesses, and the
notary public.
Prior and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with his
instructions.
Only then did the signing and acknowledgment take place.
There is no evidence that the contents of the will and the
codicil were not sufficiently made known and communicated to the
testator.
With four persons, mostly known to the testator, following
the reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was
read to him were the terms actually appearing on the typewritten
documents.
The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will to himself
(as when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance
with his wishes.
Although there should be strict compliance with the
substantial requirements of law in order to insure the authenticity
of the will, the formal imperfections should be brushed aside when
they do not affect its purpose and which, when taken into account,
may only defeat the testator’s will.
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
ARTICLE 809
Caneda v. CA
222 SCRA 781 | JEN SUCCESSION REVIEWER
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.
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.
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.
Thereafter, 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:
W/N the attestation clause in the will of the testator is fatally
defective or can be cured under the art. 809.
HELD:
No. 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.
The attestation clause, therefore, provides strong legal
guaranties for the due execution of a will and to insure the
authenticity thereof.
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 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.
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
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
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.
Azuela v. CA
487 SCRA 119 | Jalipa
ARTICLE 810
Roxas v. De Jesus
134 SCRA 245 | Lantion
FACTS:
Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec.
pro. for partition of the estate of the deceased and also delivered
the holographic will of the deceased. Simeon stated that he found a
notebook belonging to deceased, which contained a “letter-will”
entirely written and signed in deceased’s handwriting. The will is
dated "FEB./61 " and states: "This is my will which I want to be
respected although it is not written by a lawyer. Roxas relatives
corroborated the fact that the same is a holographic will of
deceased, identifying her handwriting and signature. Respondent
opposed probate on the ground that it such does not comply with
Article 810 of the CC because the date contained in a holographic
will must signify the year, month, and day.
ISSUE:
W/N the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the
Article 810 of the Civil Code.
HELD:
Valid date.
This will not be the first time that this Court departs from a
strict and literal application of the statutory requirements regarding
the due execution of Wills. The underlying and fundamental
objectives permeating the provisions of the law wills consists in the
liberalization of the manner of their execution with the end in view
of giving the testator more freedom in expressing his last wishes,
but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper
pressure and influence upon the testator. 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 (Rey v. Cartagena
56 Phil. 282).
If the testator, in executing his Will, attempts to comply with
all the requisites, although compliance is not literal, it is sufficient if
the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the testator.
In Abangan v. Abanga 40 Phil. 476, we ruled that: The object of the
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. ...
In particular, a complete date is required to provide against
such contingencies as that of two competing Wills executed on the
same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution nor was
there any substitution of Wins and Testaments. There is no
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
question that the holographic Will of the deceased Bibiana Roxas
de Jesus was entirely written, dated, and signed by the testatrix
herself and in a language known to her. There is also no question
as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their
mother and that she had the testamentary capacity at the time of
the execution of said Will. The objection interposed by the
oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing on the
holographic Will is not sufficient compliance with Article 810 of the
Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include
the day, month, and year of its execution. However, when as in the
case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid compliance with Article
810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
Labrador v. CA
184 SCRA 170 | JEN SUCCESSION REVIEWER
FACTS:
Melecio died leaving behind a parcel of land to his heirs.
However, during probate proceedings, Jesus and Gaudencio filed an
opposition on the ground that the will has been extinguished by
implication of law alleging that before Melecio’s death, the land
was sold to them evidenced by TCT No. 21178. Jesus eventually
sold it to Navat.
Trial court admitted the will to probate and declared the TCT
null and void. However, the CA on appeal denied probate on the
ground that it was undated.
ISSUE:
W/N the alleged holographic will is dated, as provided for in Article
810 of CC.
HELD:
YES. The law does not specify a particular location where
the date should be placed in the will. The only requirements are
that the date be in the will itself and executed in the hand of the
testator.
The intention to show March 17 1968 as the date of the
execution is plain from the tenor of the succeeding words of the
paragraph. It states that “this being in the month of March 17 th day,
in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than Melecio Labrador, their father.” This clearly shows that
this is a unilateral act of Melecio who plainly knew that he was
executing a will.
ARTICLE 811
Gan v. Yap
104:509 | Lugtu
FACTS:
Felicidad Yap died of a heart failure, leaving properties in
Pulilan, Bulacan, and in Manila.
Fausto E. Gan, her nephew, initiated the proceedings in the
Manila CFI with a petition for the probate of a holographic will
allegedly executed by the deceased.
The will was not presented because Felicidad’s husband,
Ildefonso, supposedly took it. What was presented were witness
accounts of relatives who knew of her intention to make a will and
allegedly saw it as well. According to the witnesses, Felicidad did
not want her husband to know about it, but she had made known to
her other relatives that she made a will.
Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor executed any
testament during her lifetime.
After hearing the parties and considering their evidence, the
Judge refused to probate the alleged will on account of the
discrepancies arising from the facts. For one thing, it is strange that
Felicidad made her will known to so many of her relatives when she
wanted to keep it a secret and she would not have carried it in her
purse in the hospital, knowing that her husband may have access
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
to it. There was also no evidence presented that her niece was her
confidant.
In the face of these improbabilities, the trial judge had to
accept the oppositor’s evidence that Felicidad did not and could not
have executed such holographic will.
ISSUE:
1. May a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it
was in the handwriting of the testator?
2. W/N Felicidad could have executed the holographic will.
HELD:
1. No. The will must be presented.
The New Civil Code effective in 1950 revived holographic
wills in its arts. 810-814. "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."
This is a radical departure from the form and solemnities
provided for wills under Act 190, which for fifty years (from
1901 to 1950) required wills to be subscribed by the testator
and three credible witnesses in each and every page; such
witnesses to attest to the number of sheets used and to the fact
that the testator signed in their presence and that they signed
in the presence of the testator and of each other. Authenticity
and due execution is the dominant requirements to be fulfilled
when such will is submitted to the courts for allowance. For that
purpose the testimony of one of the subscribing witnesses
would be sufficient if there is no opposition (Sec. 5, Rule 77). If
there is, the three must testify, if available. From the testimony
of such witnesses (and of other additional witnesses) the court
may form its opinion as to the genuineness and authenticity of
the testament, and the circumstances its due execution.
With regard to holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no
witnesses; provided however, that they are "entirely written,
dated, and signed by the hand of the testator himself."
“In the probate of a holographic will" says the New Civil
Code, "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 such
witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted to."
The witnesses need not have seen the execution of the
holographic will, but they must be familiar with the decedent’s
handwriting. Obviously, when the will itself is not submitted,
these means of opposition, and of assessing the evidence are
not available. And then the only guaranty of authenticity — the
testator's handwriting — has disappeared.
The Rules of Court, (Rule 77) approved in 1940 allow proof
(and probate) of a lost or destroyed will by secondary —
evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here.
Could Rule 77 be extended, by analogy, to holographic wills?
(NO)
Spanish commentators agree that one of the greatest
objections to the holographic will is that it may be lost or
stolen — an implied admission that such loss or theft renders it
useless.
As it is universally admitted that the holographic will is
usually done by the testator and by himself alone, to prevent
others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting
such relatives to state whether they know of the will, but
whether in the face of the document itself they think the
testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.
This holding aligns with the ideas on holographic wills in the
Fuero Juzgo, admittedly the basis of the Spanish Civil Code
provisions on the matter.(According to the Fuero, the will itself
must be compared with specimens of the testators
handwriting.)
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
All of which can only mean: the courts will not distribute the
property of the deceased in accordance with his holographic
will, unless they are shown his handwriting and signature.
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
At this point, before proceeding further, it might be
convenient to explain why, unlike holographic wills, ordinary
wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the
first, the only guarantee of authenticity is the handwriting itself;
in the second, the testimony of the subscribing or instrumental
witnesses (and of the notary, now). The loss of the holographic
will entails the loss of the only medium of proof; if the ordinary
will is lost, the subscribing witnesses are available to
authenticate.
In the case of ordinary wills, it is quite hard to convince
three witnesses (four with the notary) deliberately to lie. And
then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that
they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the
testator they are not likely to end themselves to any fraudulent
scheme to distort his wishes. Last but not least, they can not
receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony
were admissible only one man could engineer the fraud this
way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to
let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for it,
and in court they would in all good faith affirm its genuineness
and authenticity. The will having been lost — the forger may
have purposely destroyed it in an "accident" — the oppositors
have no way to expose the trick and the error, because the
document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only
one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go
undetected.
If testimonial evidence of holographic wills be permitted,
one more objectionable feature — feasibility of forgery — would
be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law.
One more fundamental difference: in the case of a lost will,
the three subscribing witnesses would be testifying to a
fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost holographic
will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not
be tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand.
In fine, even if oral testimony were admissible to establish
and probate a lost holographic will, we think the evidence
submitted by herein petitioner is so tainted with improbabilities
and inconsistencies that it fails to measure up to that "clear and
distinct" proof required by Rule 77, sec. 6.
2. No. Even if oral testimony were admissible to establish and
probate a lost holographic will, we think the evidence submitted
by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and
distinct" proof required by Rule 77, sec. 6.
Rodelas v. Aranza
119 SCRA 16 | Nieves
FACTS:
Rodelas filed a petition with the CFI of Rizal for the probate
of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:
1. Rodelas was estopped from claiming that the deceased left
a will by failing to produce the will within twenty days of the
death of the testator as required by Rule 75, section 2 of the
Rules of Court;
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
2. the copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take
effect after death, and therefore it was not a will, it was merely
an instruction as to the management and improvement of the
schools and colleges founded by the decedent;
3. the hollographic will itself, and not an alleged copy thereof,
must be produced, otherwise it would produce no effect
because lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills
4. the deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
MTD was denied. Aranza et al. filed an MR, Rodelas filed an
opposition.
The CFI set aside its order and dismissed the petition for the
probate of the will stating that “in the case of Gam vs. Yap, 104
Phil. 509, 522, the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.”
And that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976.
The lapse of more than 14 years from the time of the execution of
the will to the death of the decedent and the fact that the original
of the will could not be located shows to that the decedent had
discarded the alleged holographic will before his death.
Rodelas filed an MR which was denied. Rodelas appealed to
the CA. Aranza et al. moved to forward the case to the SC as it
involves a question of law not of fact.
ISSUE:
W/N a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy.
HELD:
If the holographic will has been lost or destroyed and no
other copy is available, the will cannot 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 by the probate court
with the standard writings of the testator. The probate court would
be able to determine the authenticity of the handwriting of the
testator.
In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled
that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must
be presented; otherwise, it shall produce no effect. The law regards
the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved
by a photographic or photostatic copy. Even a mimeographed or
carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited
and tested before the probate court,"
Azaola v. Singson
109:102 | Ong
FACTS:
Fortunata S. Vda. De Yance died in Quezon City on
September 9, 1957. Petitioner submitted for probate her
holographic will, in which Maria Azaola was made the sole heir as
against the nephew, who is the defendant. Only one witness,
Francisoco Azaola, was presented to testify on the handwriting of
the testatrix. He testified that he had seen it one month, more or
less, before the death of the testatrix, as it was given to him and
his wife; and that it was in the testatrix’s handwriting. He presented
the mortgage, the special power of the attorney, and the general
power of attorney, and the deeds of sale including an affidavit to
reinforce his statement. Two residence certificates showing the
testatrix’s signature were also exhibited for comparison purposes.
The probate was opposed on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last
will, and that the same was actually written either on the 5th or 6th
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day of August 1957 and not on November 20, 1956 as appears on
the will.
The probate was denied on the ground that under Article
811 of the Civil Code, the proponent must present three witnesses
who could declare that the will and the signature are in the writing
of the testatrix, the probate being contested; and because the lone
witness presented "did not prove sufficiently that the body of the
will was written in the handwriting of the testatrix."
Petitioner appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity was
not questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the
handwriting and signature of a holographic will, even if its
authenticity should be denied by the adverse party.
ISSUE:
W/N Article 811 of the Civil Code is mandatory or permissive.
HELD:
Article 8111 is merely permissive and not mandatory. Since
the authenticity of the will was not contested, petitioner was not
required to produce more than one witness; but even if the
genuineness of the holographic will were contested, Article 811 can
not be interpreted to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty
of having the probate denied. Since no witness may have been
present at the execution of a holographic will, none being required
by law (Art. 810, new Civil Code), it becomes obvious that the
existence of witness possessing the requisite qualifications is a
matter beyond the control of the proponent. For it is not merely a
question of finding and producing any three witnesses; they must
1
ART. 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 witnesses referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may
be resorted to. (691a)
be witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if the law
does not so express) "that the will and the signature are in the
handwriting of the testator". There may be no available witness of
the testator's hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility.
This is the reason why the 2nd paragraph of Article 811
allows the court to resort to expert evidence. The law foresees the
possibility that no qualified witness may be found (or what amounts
to the same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
What the law deems essential is that the court should be
convinced of the will's authenticity. Where the prescribed number
of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary to
call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the
Court may still, and in fact it should, resort to handwriting experts.
The duty of the Court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that
the true intention of the testator be carried into effect.
Codoy v. Calugay
312 SCRA 333 | JEN SUCCESSION REVIEWER
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.
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
Evangeline Calugay, etc. presented 6 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:
1. W/N 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 or
directory.
2. Whether or not the witnesses sufficiently establish the
authenticity and due execution of the deceased’s holographic
will.
HELD:
1. 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.
2. NO. We cannot be certain that the holographic will was in
the handwriting of the deceased.
The clerk of court was not presented to declare explicitly
that the signature appearing in the holographic will was that of
the deceased.
The election registrar was not able to produce the voter’s
affidavit for verification as it was no longer available.
The deceased’s niece saw pre-prepared receipts and letters
of the deceased and did not declare that she saw the deceased
sign a document or write a note.
The will was not found in the personal belongings of the
deceased but was in the possession of the said niece, who kept
the fact about the will from the children of the deceased,
putting in issue her motive.
Evangeline Calugay never declared that she saw the
decreased write a note or sign a document.
The former lawyer of the deceased expressed doubts as to
the authenticity of the signature in the holographic will.
(As it appears in the foregoing, the three-witness
requirement was not complied with.)
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.
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
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.
ARTICLES 813-814
Ajero v. CA
236 SCRA 488 | JEN SUCCESSION REVIEWER
FACTS:
The holographic will of Annie San was submitted for probate.
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.
The petition was also contested by Dr. Ajero with respect to
the disposition in the will of a house and lot. He claimed that said
property could not be conveyed by decedent in its entirety, as she
was not its sole owner.
However, the trial court still admitted the decedent’s
holographic will to probate.
The trial court held that since it must decide only the
question of the identity of the will, its due execution and the
testamentary capacity of the testatrix, it finds no reason for the
disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the
testatrix.
On appeal, the CA reversed said Decision holding that the
decedent did not comply with Articles 313 and 314 of the NCC. It
found that certain dispositions in the will were either unsigned or
undated, or signed by not dated. It also found that the erasures,
alterations and cancellations made had not been authenticated by
decedent.
ISSUE:
Whether the CA erred in holding that Articles 813 and 814 of the
NCC were not complies with.
HELD:
YES. A reading of Article 813 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.
Likewise, a holographic will can still be admitted to probate
notwithstanding non-compliance with the provisions of Article 814.
Unless the authenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator’s signature, their presence does not invalidate the will
itself. The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that he requirements of
authentication of changes and signing and dating of dispositions
appear in provisions (Article 813 and 814) separate from that which
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)

provides for the necessary conditions for the validity of the the probate of her holographic Will executed on December 24,
holographic will (Article 810). 1968.
This separation and distinction adds support to the The holographic Will, as first written, named Rosa Kalaw, a
interpretation that only the requirements of Article 810 of the NCC sister of the testatrix as her sole heir. She opposed probate alleging
– and not those found in Articles 813 and 814 – are essential to the that the holographic Will contained alterations, corrections, and
probate of a holographic will. insertions without the proper authentication by the full signature of
Section 9, Rule 76 of the Rules of Court and Article 839 of the testatrix as required by Article 814 of the Civil Code reading:
the Civil Code enumerate the grounds for disallowance of wills. Art. 814. In case of any insertion, cancellation, erasure or alteration
These lists are exclusive; no other grounds can serve to disallow a in a holographic will the testator must authenticate the same by his
will. full signature.
In a petition to admit a holographic will, the only issues to ROSA's position was that the holographic Will, as first
be resolved are: written, should be given effect and probated so that she could be
1. whether the instrument submitted is, indeed, the decedent’s the sole heir thereunder.
last will and testament; Trial Court denied petition to probate the holographic will.
2. whether said will was executed in accordance with the Reconsideration denied.
formalities prescribed by law;
3. whether the decedent had the necessary testamentary
capacity at the time the will was executed; and
4. whether the execution of the will and its signing were the
voluntary acts of the decedent.
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud; accordingly,
laws on this subject should be interpreted to attain these primordial
ends.
In the case of holographic wills, what assures authenticity is
the requirement that they be totally authographic or handwritten
by the testator himself. Failure to strictly observe other formalities
will no result in the disallowance of a holographic will that is
unquestionable handwritten by the testator.

ARTICLE 814

Kalaw v. Relova
132 SCRA 237 | Posadas

FACTS:
On September 1, 1971,Gregorio Kalaw, claiming to be the
sole heir of his deceased sister, Natividad Kalaw, filed a petition for

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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
ISSUE:
W/N the original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of authentication
by the full signature of the testatrix, should be probated or not,
with Rosa as sole heir.
HELD:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will litem not
been noted under his signature, ... the Will is not thereby
invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined.
However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was altered by
substituting the original heir with another, but which alteration did
not carry the requisite of full authentication by the full signature of
the testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will after
that which could remain valid. To state that the Will as first written
should be given efficacy is to disregard the seeming change of
mind of the testatrix. But that change of mind can neither be given
effect because she failed to authenticate it in the manner required
by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a holographic
Will, which affect only the efficacy of the altered words themselves
but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with certitude.
ARTICLES 820-821
Gonzales v. CA
90 SCRA 183 | Reyes
FACTS:
Isabel Gabriel died on June 7, 1961 without issue. Lutgarda
Santiago (respondent), niece of Isabel, filed a petition for probate
of Isabel's will designating her as the principal beneficiary and
executrix. The will was typewritten in Tagalog and was executed 2
months prior to death of Isabel.
The petition was opposed by Rizalina Gonzales (petitioner),
also a niece of Isabel, on the following grounds: 1. the will is not
genuine, 2. will was not executed and attested as required by law,
3. the decedent at the time of the making of the will did not have
testamentary capacity due to her age and sickness, and 4. the will
was procured through undue influence.
The trial court disallowed the probate of the will but the
Court of Appeals Reversed the said decision of the trial court. The
petitioner filed a petition for review with SC claiming that the CA
erred in holding that the will of the decedent was executed and
attested as required by law when there was absolutely no proof
that the 3 instrumental witnesses are credible.
ISSUE:
1. 1. Can a witness be considered competent under Art 820-
821 and still not be considered credible as required by Art.
805?
2. Is it required that there must be evidence on record that the
witness to a will has good standing in his/her community or
that he/she is honest or upright?
HELD:
1. Yes. The petitioner submits that the term credible in Article
805 requires something more than just being competent and,
therefore, a witness in addition to being competent under
Articles 820-821 must also be credible under Art. 805. The
competency of a person to be an instrumental witness to a will
is determined by the statute (Art. 820 and 821), whereas his
credibility depends on the appreciation of his testimony and
arises from the belief and conclusion of the Court that said
witness is telling the truth. In the case of Vda. de Aroyo v. El
Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3,
1968, the Supreme Court held and ruled that: "Competency as
a witness is one thing, and it is another to be a credible witness,
so credible that the Court must accept what he says. Trial
courts may allow a person to testify as a witness upon a given
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
matter because he is competent, but may thereafter decide
whether to believe or not to believe his testimony."
2. No. There is no mandatory requirement that the witness
testify initially or at any time during the trial as to his good
standing in the community, his reputation for trustworthiness
and for being reliable, his honesty and uprightness (such
attributes are presumed of the witness unless the contrary is
proved otherwise by the opposing party) in order that his
testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the soundness of his
mind can be shown by or deduced from his answers to the
questions propounded to him, that his age (18 years or more) is
shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb
and that he is able to read and write to the satisfaction of the
Court, and that he has none of the disqualifications under
Article 821 of the Civil Code.
ARTICLE 830
Gago v. Mamuyac
49:902| Saranillo
FACTS:
Miguel Mamuyac died on January 2, 1922. It appears from
the record that Miguel executed a last will and testament on July
27, 1918. Gago presented such will for probate which was opposed
by Cornelio Mamuyac et. al. Said petition for probate was denied on
the ground that the deceased executed another will on April 16,
1919. Gago presented the April 16 will for probate which was again
opposed by Cornelio et. al. alleging that the will presented by Gago
is a carbon copy of the original April 16 will; such will was cancelled
during the lifetime of the deceased; and that said will was not the
last will and testament of the deceased. The RTC found that the
deceased executed another will on December 30, 1920.
ISSUE:
W/N the April 16 will was cancelled.
HELD:
YES. With reference to the said cancellation, it may be
stated that there is positive proof, not denied, which was accepted
by the lower court, that will in question had been cancelled in 1920.
The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes difficult
at times to prove the revocation or cancellation of wills. The fact
that such cancellation or revocation has taken place must either
remain unproved of be inferred from evidence showing that after
due search the original will cannot be found. Where a will which
cannot be found is shown to have been in the possession of the
testator, when last seen, the presumption is, in the absence of
other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the
testator had ready access to the will and it cannot be found after
his death. It will not be presumed that such will has been destroyed
by any other person without the knowledge or authority of the
testator. The force of the presumption of cancellation or revocation
by the testator, while varying greatly, being weak or strong
according to the circumstances, is never conclusive, but may be
overcome by proof that the will was not destroyed by the testator
with intent to revoke it.
In view of the fact that the original will of 1919 could not be
found after the death of the testator Miguel Mamuyac and in view
of the positive proof that the same had been cancelled, we are
forced to the conclusion that the conclusions of the lower court are
in accordance with the weight of the evidence. In a proceeding to
probate a will the burden of proofs is upon the proponent clearly to
establish not only its execution but its existence. Having proved its
execution by the proponents, the burden is on the contestant to
show that it has been revoked. In a great majority of instances in
which wills are destroyed for the purpose of revoking them there is
no witness to the act of cancellation or destruction and all evidence
of its cancellation perishes with the testator. Copies of wills should
be admitted by the courts with great caution. When it is proven,
however, by proper testimony that a will was executed in duplicate
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in
evidence when it is made to appear that the original has been lost
and was not cancelled or destroyed by the testator.
Casiano v. CA
158 SCRA 451 | Sia
FACTS:
On October 20, 1963, Adriana Maloto died leaving as heirs
her niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private respondents Panfilo Maloto and
Felino Maloto. Believing that the deceased did not leave behind a
last will and testament, these four heirs commenced on November
4, 1963 an intestate proceeding for the settlement of their aunt's
estate in the CFI of Iloilo. While the case was still pending the
parties — 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 on March 21, 1964.
3 years later, Atty. Sulpicio Palma, a former associate of Adriana's
counsel, the late Atty. Eliseo Hervas, discovered a document
entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated
January 3,1940, and purporting to be the last will and testament of
Adriana. Atty. Palma claimed to have found the testament, the
original copy, while he was going through some materials inside
the cabinet drawer formerly used by Atty. Hervas. The document
was submitted to the clerk of court of the Iloilo CFI. 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 the same court which approved
the EJ settelement a motion for reconsideration and annulment of
the proceedings therein and for the allowance of the will which was
denied by the CFI. Upon petition to the SC for certiorari and
mandamus, the SC dismissed that petition and advised that a
separate proceeding for the probate of the alleged will would be
the appropriate vehicle to thresh out the matters raised by the
petitioners. The CFI and CA found that the will to be probated had
been revoked by the burning thereof by the housemaid upon
instruction of the testatrix.
ISSUE:
W/N 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.
The physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done
by the testator himself. It may be performed by another person but
under the express direction and in the presence of the testator. Of
course, it goes without saying that the document destroyed must
be the will itself.
"Animus revocandi” is only one of the necessary elements
for the effective revocation of a last will and testament. The
intention to revoke must be accompanied by the overt physical act
of burning, tearing, obliterating, or cancelling the will carried out by
the testator or by another person in his presence and under his
express direction.
There is paucity of evidence to show compliance with these
requirements. For one, the document or papers burned by
Adriana's maid, Guadalupe, was not satisfactorily established to be
a will at all, much less the will of Adriana Maloto. For another, the
burning was not proven to have been done under the express
direction of Adriana. And then, the burning was not in her presence.
Both witnesses, Guadalupe and Eladio, were one in stating that
they were the only ones present at the place where the stove
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
(presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The two witnesses were illiterate and does not appear to be
unequivocably positive that the document burned was indeed
Adriana's will. Guadalupe 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.
It is an important matter of public interest that a purported win is
not denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its very
foundations.
ARTICLE 838
Gallanosa v. Arcangel
83 SCRA 676 | JEN SUCCESSION REVIEWER
FACTS:
Florentino Hitosis was a childless widower and was survived
by his brother Lito. In his will, Florentino bequeathed his ½ share in
the conjugal estate to his second wife, Tecla, and, should Tecla
predecease him, as was the case, his ½ share would be assigned to
spouses Gallanosa. Pedro Gallanosa was Tecla’s son by her first
marriage who grew up under the care of Florentino. His other
properties were bequeathed to his protégé Adolfo Fortajada.
Upon his death, a petition for the probate of his will was
wile. Opposition was registered by Florentino’s brother, nephews
and nieces.
After a hearing, where the oppositors did not present any
evidence, the Judge admitted the will to probate.
The testator’s legal heirs did not appeal from the decree of
probate and from the order of partition and distribution.
Later, the legal heirs filed a case for recovery of 61 parcels
of land against Pedro alleging that they had been in continuous
possession of those lands and praying that they be declared
owners thereof.
Pedro moved for a dismissal which was later granted by the
Judge on the ground of res judicata.
The legal heirs did not appeal from the order of dismissal.
15 years after the dismissal of the first civil case and 28
years after the probate of the will, the legal heirs filed a case for
“annulment of the will” alleging fraud and deceit.
The court dismissed said action. However, the court set
aside the dismissal after the heirs filed a motion for
reconsideration. Hence, this appeal.
ISSUE:
Whether the legal heirs have a cause of action for the “annulment”
of the will of Florentino and for the recovery of the 61 parcels of
land adjudicated under that will to the petitioners.
HELD:
NO. The SC held that the lower court committed a grave
abuse of discretion in setting aside its order of dismissal and
ignoring the testamentary case and the first civil case which is the
same as the instant case. It is evident that second civil case is
barred by res judicata and by prescription.
The decree of probate is conclusive as to the due execution
or formal validity of the will. That means that the testator was of
sound and disposing mind at the time he executed the will and was
not acting under duress, menace, fraud, or undue influence; that
the will was signed by him in the presence of the required number
of witnesses, and that the will is genuine.
Accordingly, these facts cannot again be questioned in a
subsequent proceeding, not even in a criminal action for the
forgery of the will.
After the finality of the allowance of a will, the issue as to
the voluntariness of its execution cannot be raised anymore.
The SC also held that the decree of adjudication, having
rendered in a proceeding in rem, is binding upon the whole world.
Moreover, the dismissal of the first civil case, which is a judgment
in personam, was an adjudication on the merits. Thus. It constitutes
a bar by former judgment under the Rules of Court.
The SC also held that the lower court erred in saying that
the action for the recovery of the lands had not prescribed. The SC
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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
ruled that the Art. 1410 of NCC (the action or defense for the
declaration of the inexistence of a contract does not prescribe)
cannot apply to last wills and testaments.
The Rules of Court does not sanction an action for
“annulment” of a will.
A final decree of probate is conclusive as to the due
execution of the will.
A decree of adjudication in a testate proceeding is binding
on the whole world.After the period for seeking relief from a final
order or judgment under Rule 38 of the Rules of court has expired,
a final judgment or order can be set aside only on the grounds of:
(a) lack of jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral fraud. In
the latter case, the period for annulling the judgment is four (4)
years from the discovery of fraud.
The Civil Law rule that an action for declaration of inexistence of a
contract does not prescribe cannot be applied to last wills and
testaments.
Dela Cerna v. Potot
12 SCRA 576 | JEN SUCCESSION REVIEWER
FACTS:
Spouses Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will ad testament where they willed that their
2 parcels of land be given to Manuela Rebaca, their niece and that
while each of them are living, he/she will continue to enjoy the
fruits of the lands mentioned.
Bernabe died. Gervasia submitted the will for probated. By
order of Oct. 31, 1939, the Court admitted for probate the said will
but only for the part of Bernabe.
When Gervasia died, another petition for probate was
instituted by Manuela, but because she and her attorney failed to
appear in court, the petition was dismissed. When the same was
heard, the CFI declared the will void for being executed contrary to
the prohibition on joint wills. On appeal, the order was reversed.
ISSUE:
W/N the will may be probated.
HELD:
Admittedly the probate of the will in 1939 was erroneous,
however, because it was probated by a court of competent
jurisdiction it has conclusive effect and a final judgment rendered
on a petition for the probate of a will is binding upon the whole
world. However, this is only with respect to the estate of the
husband but cannot affect the estate of the wife; considering that a
joint will is a separate will of each testator.
The joint will being prohibited by law, its validity, in so far as
the estate of the wife is concerned, must be reexamine and
adjudicated de novo.
The undivided interest of the wife should pass upon her
death to her intestate heirs and not to the testamentary heir. Thus
as to the disposition of the wife, the will cannot be given effect.
A decree of probate decree is conclusive on the due
execution and the formal validity of the will subject to such
probate.
Roberts v. Leonidas
129 SCRA 754 | Suarez
FACTS:
Grimm, an American resident of Manila, died in 1977. He
was survived by his second wife (Maxine), their two children (Pete
and Linda), and by his two children by a first marriage (Juanita and
Ethel) which ended by divorce.
Grimm executed two wills in San Francisco, California on
January 23, 1959. One will disposed of his Philippine estate
described as conjugal property of himself and his second wife. The
second will disposed of his estate outside the Philippines. The two
wills and a codicil were presented for probate in Utah by Maxine on
March 1978. Maxine admitted that she received notice of the
intestate petition filed in Manila by Ethel in January 1978. The Utah
Court admitted the two wills and codicil to probate on April 1978
and was issued upon consideration of the stipulation between the
attorneys for Maxine and Ethel.
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Also in April 1978, Maxine and Ethel, with knowledge of the
intestate proceeding in Manila, entered into a compromise
agreement in Utah regarding the estate.
As mentioned, in January 1978, an intestate proceeding was
instituted by Ethel. On March 1978, Maxine filed an opposition and
motion to dismiss the intestate proceeding on the ground of
pendency of the Utah probate proceedings. She submitted to the
court a copy of Grimm’s will. However, pursuant to the compromise
agreement, Maxine withdrew the opposition and the motion to
dismiss. The court ignored the will found in the record.The estate
was partitioned.
In 1980, Maxine filed a petition praying for the probate of
the two wills (already probated in Utah), that the partition approved
by the intestate court be set aside and the letters of administration
revoked, that Maxine be appointed executrix and Ethel be ordered
to account for the properties received by them and return the same
to Maxine. Maxine alleged that they were defrauded due to the
machinations of Ethel, that the compromise agreement was illegal
and the intestate proceeding was void because Grimm died testate
so partition was contrary to the decedent’s wills.
Ethel filed a motion to dismiss the petition which was denied
by Judge Leonidas for lack of merit.
ISSUE:
Whether the judge committed grave abuse of discretion amounting
to lack of jurisdiction in denying Ethel’s motion to dismiss.
HELD:
We hold that respondent judge did not commit any grave
abuse of discretion, amounting to lack of jurisdiction, in denying
Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm
died with two wills and "no will shall pass either real or personal
property unless it is proved and allowed" (Art. 838, Civil Code; sec.
1, Rule 75, Rules of Court).
The probate of the will is mandatory. It is anomalous that
the estate of a person who died testate should be settled in an
intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to
the testate proceeding should continue hearing the two cases.
Nepomuceno v. CA
139 SCRA 206 | Sumagaysay
FACTS:
Martin Jugo left a duly executed and notarized Last Will and
Testament before he died. Petitioner was named as sole executor.
It is clearly stated in the Will that he was legally married to a
certain Rufina Gomez by whom he had two legitimate children, but
he had been estranged from his lawful wife. In fact, the testator
Martin Jugo and the petitioner were married despite the subsisting
first marriage. The testator devised the free portion of his estate to
petitioner. On August 21, 1974, the petitioner filed a petition for
probate. On May 13, 1975, Rufina Gomez and her children filed an
opposition alleging undue and improper influence on the part of the
petitioner; that at the time of the execution of the Will, the testator
was already very sick and that petitioner having admitted her living
in concubinage with the testator.
The lower court denied the probate of the Will on the ground
that as the testator admitted in his Will to cohabiting with the
petitioner. Petitioner appealed to CA. On June 2, 1982, the
respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the will. The respondent
court declared the Will to be valid except that the devise in favor of
the petitioner is null and void.
ISSUE:
W/N the CA 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.
HELD:
No. 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
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proceedings, the court's area of inquiry is limited to an examination
and resolution of the extrinsic validity of the Will. 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.
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 (Nuguid v. Nuguid)
The Will is void under Article 739. The following donations
shall be void: (1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation; and Article
1028. The prohibitions mentioned in Article 739, concerning
donations inter vivos shall apply to testamentary provisions.
There is no question from the records about the fact of a
prior existing marriage when Martin Jugo executed his Will. The
very wordings of the Will invalidate the legacy because the testator
admitted he was disposing the properties to a person with whom he
had been living in concubinage.
Reyes v. CA
281 SCRA 277 | Tan
FACTS:
This case involves a 383 sq.m. parcel of land owned by
pettitioner’s and respondents’ father. Petitioner alleges that a Deed
of Exrajudicial Partition (Deed) was entered into between him and
the respondents. Petitioner managed to register 335 sq.m. of the
land under his name; while 50 sq.m. of the land was registered
under the name of his sister, Paula (one of the respondents). After
discovering the registration of the Deed, respondents denied
having knowledge of its execution and disclaimed having signed
the same; nor did they ever waive their rights, shares and interest
in the subject parcel of land. According to respondents, subject
Deed was fraudulently prepared by petitioner and that their
signatures thereon were forged. They also assert that one Atty.
Jose Villena, the Notary Public who notarized the said Deed was not
even registered in the list of accredited Notaries Public of Pasay
City.
Thereafter, petitioner executed a Deed of Absolute Sale
selling 240 square meters of the land to his children. After the
property was partitioned, petitioner, his children and private
respondent Paula allegedly executed a Deed of Co-owners' Partition
dividing the property among themselves. This led the respondents
to file a Complaint for "Annulment of Sale and Damages With
Prayer for Preliminary Injunction/Restraining Order" before the RTC,
which ruled that private respondents' signatures on the questioned
Deed of Extrajudicial Partition and Settlement were indeed forged
and simulated. The CA affirmed. Hence, this petition.
ISSUES:
1. Whether the Deed was forged.
2. Whether petitioner(s) had become absolute owners of the
subject property by virtue of acquisitive prescription.
RULING:
1. YES. Petitioner(s) cast doubt on the findings of the lower
court as affirmed by the Court of Appeals regarding the
existence of forgery. Factual findings of the trial court, adopted
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and confirmed by the Court of Appeals, are final and conclusive
and may not be reviewed on appeal. Petitioners' ludicrous claim
that private respondents imputed no deception on his part but
only forgery of the subject Deed and the simulation of their
signatures is nothing short of being oxymoronic. For what is
forgery and simulation of signatures if not arrant deception! The
allegation made by petitioner that the execution of a public
document ratified before a notary public cannot be impugned
by the mere denial of the signatory is baseless. It should be
noted that there was a finding that the subject Deed was
notarized by one Atty. Villena who at that time was not
commissioned as a notary in Pasay City.
probate. Private respondents did not appeal from said order. In
1983, they filed a "Motion To Declare The Will Intrinsically Void."
The trial court granted the motion and issued an order.
Petitioner moved for reconsideration arguing that she is
entitled to some compensation since she took care of Alejandro
prior to his death although she admitted that they were not married
to each other.
Later on, Judge Zain B. Angas set aside the final and
executory Order, as well as the Order directing the issuance of the
writ of execution, on the ground that the order was merely
"interlocutory", hence not final in character.

2. NO. Petitioners cannot justify their ownership and

possession of the subject parcel of land since they could not
ave been possessors in good faith of the subject parcel of land
considering the finding that at the very inception they forged
the Deed of Extrajudicial Partition and Settlement which they
claim to be the basis for their just title. Having forged the Deed
and simulated the signatures of private respondents,
petitioners, in fact, are in bad faith. The forged Deed containing
private respondents' simulated signatures is a nullity and
cannot serve as a just title. There can be no acquisitive
prescription considering that the parcel of land in dispute is
titled property, i.e., titled in the name of the late Bernardino
Reyes, the father of both petitioner Florentino and the private
respondents.

Dorotheo v. CA
320 SCRA 12 | Tuazon

FACTS:
Private respondents were the legitimate children of
Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969
without her estate being settled. Alejandro died thereafter.
Sometime in 1977, after Alejandro's death, petitioner, who claims
to have taken care of Alejandro before he died, filed a special
proceeding for the probate of the latter's last will and testament. In
1981, the court issued an order admitting Alejandro's will to

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 CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
ISSUE:
May a last will and testament admitted to probate but declared
intrinsically void in an order that has become final and executory
still be given effect?
HELD:
No. A final and executory decision or order can no longer be
disturbed or reopened no matter how erroneous it may be. In
setting aside the Order that has attained finality, the trial court in
effect nullified the entry of judgment made by the Court of Appeals.
It is well settled that a lower court cannot reverse or set aside
decisions or orders of a superior court, for to do so would be to
negate the hierarchy of courts and nullify the essence of review. It
has been ruled that a final judgment on probated will, albeit
erroneous, is binding on the whole world.
Camaya v. Patulandong
423 SCRA 480 | Valdez
FACTS:
On November 17, 1972, Rufina Reyes (testatrix) executed a
notarized will wherein she devised Lot no. 288-A to her grandson
Anselmo Mangulabnan. During her lifetime, the testatrix herself
filed the petition for the probate of her will before the CFI. Later, on
June 27, 1973, the testatrix executed a codicil modifying her will by
devising the said Lot 288-A in favor of her four children Bernardo
(the executor), Simplicia, Huillerma and Juan (all surnamed
Patulandong), and her grandson Mangulabnan – to the extent of 1/5
each.
Mangulabnan later sought the delivery to him by executor
Patulandong of the title of Lot 288-A, but Patulandong refused to
heed the request because of the codicial which modified the will of
the testatrix. Thus, Mangulabnan filed an ‘action for partition’
against Patulandong in the RTC. The court in this partition ordered
the partitioning of the property. However, the court holds that ‘the
partition is without prejudice to the probate of the codicil in
accordance with the Rules of Court.’ So, by virtue of the decision in
partition case, Mangulabnan caused the cancellation of the title of
the testatrix over Lot 288-A, and another TCT was issued in his
name. Mangulabnan later sold to herein petitioners Camayas Lot
no. 288-A by a Deed of Sale, and thus, a TCT was issued under the
name of the Camayas.
However, come now the decision of the probate court
admitting the codicil, and disposing that the Deed of Sale in favor
of the Camayas, and the corresponding TCT issued in their name
are null and void, and that the Register of Dees was ordered to
issue instead corresponding certificates of titles to the aforesaid
four children of the testatrix, and her grandson Mangulabnan to the
extent of 1/5 each pursuant to the codicil.
The Camayas and Mangulabnan filed an MR. But the probate court
denied this. The CA affirmed the decision of the probate court.
Thus, the case was brought to the SC via a petition for review on
certiorari.
ISSUES:
1. Whether the probate court exceeded its jurisdiction when it
declared null and void and ordered the cancellation of the TCT
of Camayas and the deed of sale.
2. Whether the final judgment in partition case bars the
allowance of the codicil.
HELD:
1. As to the first issue, the probate court exceeded its
jurisdiction when it declared the deed of sale as null and void,
and also as to the cancellation of the TCTs under the name of
the Camayas. It is well-settled rule that a probate court or one
in charge of proceedings whether testate or intestate cannot
adjudicate or determine title to properties claimed to be a part
of the estate and which are equally claimed to belong to outside
parties. All that said court could do as regards said properties is
to determine whether they should not be included in the
inventory. If there is no dispute, well and good; but if there is,
then the parties, the administrator, and the opposing parties
have to resort to an ordinary action for final determination of
the conflicting claims of title because the probate court cannot
do so. Having been apprised of the fact that the property in
question was in the possession of third parties and more
important, covered by a transfer certificate of title issued in the
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name of such third parties, the respondent court should have
denied the motion of the respondent administrator and
excluded the property in question from the inventory of the
property of the estate. It had no authority to deprive such third
persons of their possession and ownership of the property. The
probate court exceeded its jurisdiction when it declared the
deed of sale and the titles of the Camayas as null and void, it
having had the effect of depriving them possession and
ownership of the property.
2. As to the second issue, petitioners argue that by allowing
the codicil to probate, it in effect amended the final judgment in
the partition case which is not allowed by law; and that
petitioner Camayas are innocent purchasers for value and enjoy
the legal presumption that the transfer was lawful. Petitioners’
argument does not persuade. Though the judgment in the
partition case had become final and executory as it was not
appealed, it specifically provided in its dispositive portion that
the decision was "without prejudice [to] ... the probate of the
codicil." The rights of the prevailing parties in said case were
thus subject to the outcome of the probate of the codicil.
The probate court being bereft of authority to rule upon the
validity of petitioners’ titles, there is no longer any necessity to
dwell on the merits of petitioners Camayas’ claim that they are
innocent purchasers for value and enjoy the legal presumption
that the transfer was lawful.
The petition is granted in part. The decision of the probate
court allowing the codicil is affirmed. But, the declaration of the
aforesaid Deed of Sale, and the order to reissue corresponding
certificates of titles to the four children of the testratrix, and her
grandson Mangulabnan are set aside, without prejudice to the
respondent’s ventilation of their right in an appropriate action.
ARTICLE 850
Austria v. Reyes
31 SCRA 754 | Vargas
FACTS:
Basilia Austria vda. de Cruz filed with the CFI of Rizal a
petition for probate, ante mortem, of her last will and testament.
The probate was opposed by the present petitioners, who are
nephews and nieces of Basilia. The will was subsequently allowed
with the bulk of her estate designated for respondents, all of whom
were Basilia’s legally adopted children. The petitioners, claiming to
be the nearest of kin of Basilia, assert that the respondents had not
in fact been adopted by the decedent in accordance with law,
thereby making them mere strangers to the decedent and without
any right to succeed as heirs. Petitioners argue that this
circumstance should have left the whole estate of Basilia open to
intestacy with petitioners being the compulsory heirs.
It is alleged by petitioners that the language used imply that
Basilia was deceived into believing that she was legally bound to
bequeath one-half of her entire estate to the respondents as the
latter's legitime, with the inference that respondents would not
have instituted the respondents as heirs had the fact of spurious
adoption been known to her. The petitioners inferred that from the
use of the terms, "sapilitang tagapagmana" (compulsory heirs) and
"sapilitang mana" (legitime), the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under
the law she could not do otherwise. Thus Article 850 of the Civil
Code applies whereby, “the statement of a false cause for the
institution of an heir shall be considered as not written, unless it
appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.”
ISSUE:
W/N the lower court committed grave abuse of discretion in barring
the petitioners nephews and niece from registering their claim even
to properties adjudicated by the decedent in her will.
HELD:
No. Before the institution of heirs may be annulled under
article 850 of the Civil Code, the following requisites must concur:
First, the cause for the institution of heirs must be stated in the will;
second, the cause must be shown to be false; and third, it must
appear from the face of the will that the testator would not have
made such institution if he had known the falsity of the cause. The
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decedent's will does not state in a specific or unequivocal manner
the cause for such institution of heirs. Absent such we look at other
considerations. The decedent’s disposition of the free portion of her
estate, which largely favored the respondents, compared with the
relatively small devise of land which the decedent left for her blood
relatives, shows a perceptible inclination on her part to give the
respondents more than what she thought the law enjoined her to
give to them. Excluding the respondents from the inheritance,
considering that petitioner nephews and nieces would succeed to
the bulk of the testate by virtue of intestacy, would subvert the
clear wishes of the decedent.
Testacy is favored and doubts are resolved on its side,
especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate, as was done in
this case. Intestacy should be avoided and the wishes of the
testator should be allowed to prevail. Granted that a probate court
has found, by final judgment, that the decedent possessed
testamentary capacity and her last will was executed free from
falsification, fraud, trickery or undue influence, it follows that giving
full expression to her will must be in order.
ARTICLE 854
Reyes v. Barretto-Datu
19 SCRA 85 | Ventura
FACTS:
Bibiano Barretto was married to Maria Gerardo. When
Bibiano Barretto died he left his share in a will to Salud Barretto
and Lucia Milagros Barretto and a small portion as legacies to his
two sisters Rosa Barretto and Felisa Barretto and his nephew and
nieces. The usufruct of a fishpond was reserved for his widow,
Maria Gerardo. Maria Gerardo, as administratrix prepared a project
of partition. It was approved and the estate was distributed and the
shares delivered.
Later on, Maria Gerardo died. Upon her death, it was
discovered that she executed two wills, in the first, she instituted
Salud and Milagros, both surnamed Barretto, as her heirs; and, in
the second, she revoked the same and left all her properties in
favor of Milagros Barretto alone. The later will was allowed and the
first rejected. In rejecting the first will presented by Tirso Reyes, as
guardian of the children of Salud Barretto, the LC held that Salud
was not the daughter of the decedent Maria Gerardo by her
husband Bibiano Barretto. This ruling was appealed to the SC,
which affirmed the same.
Having thus lost this fight for a share in the estate of Maria
Gerardo, as a legitimate heir of Maria Gerardo, plaintiff now falls
back upon the remnant of the estate of the deceased Bibiano
Barretto, which was given in usufruct to his widow Maria Gerardo.
Hence, this action for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her
right of ownership, not only of the fishpond under litigation, but of
all the other properties willed and delivered to Salud Barretto, for
being a spurious heir, and not entitled to any share in the estate of
Bibiano Barretto, thereby directly attacking the validity, not only of
the project of partition, but of the decision of the court based
thereon as well.
ISSUE:
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W/N the partition from which Salud acquired the fishpond is void ab
initio and Salud did not acquire valid title to it.
HELD:
NO. Salud Barretto admittedly had been instituted heir in
the late Bibiano Barretto's last will and testament together with
defendant Milagros; hence, the partition had between them could
not be one such had with a party who was believed to be an heir
without really being one, and was not null and void. The legal
precept (Article 1081) does not speak of children, or descendants,
but of heirs (without distinction between forced, voluntary or
intestate ones), and the fact that Salud happened not to be a
daughter of the testator does not preclude her being one of the
heirs expressly named in his testament; for Bibiano Barretto was at
liberty to assign the free portion of his estate to whomsoever he
chose. While the share (½) assigned to Salud impinged on the
legitime of Milagros, Salud did not for that reason cease to be a
testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's
will a share smaller than her legitime invalidate the institution of
Salud as heir, since there was here no preterition, or total
ommission of a forced heir.
Whether the estate, after deducting the legacies, should be equally
divided or whether the inheritance of Lucy as instituted heir should
be merely reduced to the extent necessary to cover the legitime of
Helen Garcia, equivalent to ¼ of the entire estate.
HELD:
The inheritance of Lucy should be merely reduced to cover
the legitime of Helen Garcia.
Christensen refused to acknowledge Helen Garcia as his
natural daughter and limited her share to a legacy of P3,600.00.
When a testator leaves to a forced heir a legacy worth less than the
legitime, but without referring to the legatee as an heir or even as
a relative, and willed the rest of the estate to other persons, the
heir could not ask that the institution of the heirs be annulled
entirely, but only that the legitime be completed.

Aznar v. Duncan
17 SCRA 590 | Villarica

FACTS:
Christensen died testate. The will was admitted to probate.
The court declared that Helen Garcia was a natural child of the
deceased. The Court of First Instance equally divided the properties
of the estate of Christensen between Lucy Duncan (whom testator
expressly recognized in his will as his daughter) and Helen Garcia.
In the order, the CFI held that Helen Garcia was preterited in the
will thus, the institution of Lucy Duncan as heir was annulled and
the properties passed to both of them as if the deceased died
intestate.

ISSUE:

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