JLT Agro, Inc. v. Balansag Balansag (respondents) who established their home and a lumber yard.
Subsequently, Milagrosa Donio and her children executed a Deed of Extrajudicial
Facts:
Julian Tevez (Don Julian) contracted two marriages in this case, first with Antonia
and second with Milagros Donio, after the former’s death. The first marriage
resulted to two children: Josefa and Emilion. The second marriage, resulted to 4
children: Maria Evelyn, Jose Catalino, Milagros Reyes and Pedro.
This case involves a parcel of land having an area of 954 sqm known as Lot No. 63,
originally registered in the name of the conjugal property of Don Julian and Antonia
under OCT No. 5203. After Antonia’s death, the property was subject to a partition
between the heirs of the first marriage. Milagros Donio likewise intervened in said
dispute. However, the parties eventually entered into a Compromise Agreement,
partitioning the properties of Don Julian. On the basis of such Compromise
Agreement, the CFI rendered a decision declaring Hacienda Medalla Milagrosa as
property owned in common by Don Julian and his 2 children from the first marriage
and shall remain undivided during the lifetime of Don Julain. Paragraph 13 of
the Compromise Agreement, at the heart of the present dispute, lays down the
effect of the eventual death of Don Julian vis-à-vis his heirs:
13. That in the event of death of Julian L. Teves, the properties hereinafter
adjudicated to Josefa Teves Escaňo and Emilio B. Teves, (excluding the
properties comprised as Hacienda Medalla Milagrosa together with all its
accessories and accessions) shall be understood as including not only their
one-half share which they inherited from their mother but also the
legitimes and other successional rights which would correspond to them of
the other half belonging to their father, Julian L. Teves. In other words, the
properties now selected and adjudicated to Julian L. Teves (not including
his share in the Hacienda Medalla Milagrosa) shall exclusively be
adjudicated to the wife in second marriage of Julian L. Teves and his four
minor children, namely, Milagros Donio Teves, his two acknowledged
natural children Milagros Reyes Teves and Pedro Reyes Teves and his
twolegitimated children Maria Evelyn Donio Teves and Jose Catalino Donio
Teves.
In 1972, Don Julian, Josefa and Emilio executed a Deed of Assignment of Assets with
Assumption of Liabilities in favor of J.L.T. Agro, Inc. (petitioner). Later on, they also
executed a Supplemental Deed which transferred ownership over Lot No. 63 in
favor of petitioner. Petitioner then had the property registered in its name and the
court issued an order cancelling OCT 5203 and issued TCT No. T-375 in the name of
petitioner.
Meanwhile, after the Compromise Agreement, Milagrosa Donio immediately took
possession over Lot No. 63. IN 1974, they entered into a lease contract with spouses
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Partition in 1980 alloting Lot No. 63 to Milagros Donio and her 2 children. Unaware
that the lot was already registered in the name of petitioner in 1979, respondents
bought the lot from Milagros and her children as evidenced by the Deed of Absolute
Sale in 1983. Upon discovery that the lot was already in the name of petitioners,
respondents filed a complaint before the RTC seeking the transfer of the lot in their
names. The RTC dismissed the complaint holding that the subject lot was no longer
part of Don Julian’s estate upon his death because he already assigned it to
petitioner. Thus, the lot could not have been sold by Milagros and her children. On
appeal, the CA reversed the RTC holding that J.L.T. Agro’s title is null and void. The
CA held that the Compromise Agreement particularly paragraph 13 thereof,
determined, adjudicated and reserved to Don Julian’s two sets of heirs their future
legitimes in his estate except as regards his (Don Julian’s) share in Hacienda Medalla
Milagrosa. Don Julian could have disposed of only his conjugal share in the
Hacienda Medalla Milagrosa. The appellate court likewise emphasized that nobody
in his right judgment would preterit his legal heirs by simply executing a document
like the Supplemental Deed which practically covers all properties which Don Julian
had reserved in favor of his heirs from the second marriage. It also found out that
the blanks reserved for the Book No. and Page No. at the upper right corner of TCT
No. T-375, "to identify the exact location where the said title was registered or
transferred," were not filled up, thereby indicating that the TCT is "spurious and of
dubious origin."
Feeling aggrieved, petitioner assigns as errors the following rulings of the appellate
court, to wit: (a) that future legitime can be determined, adjudicated and reserved
prior to the death of Don Julian; (b) that Don Julian had no right to dispose of or
assign Lot No. 63 to petitioner because he reserved the same for his heirs from the
second marriage pursuant to the Compromise Agreement; (c) that the Supplemental
Deed was tantamount to a preterition of his heirs from the second marriage; and (d)
that TCT No. T-375 in the name of petitioner is spurious for not containing entries
on the Book No. and Page No.
Issues and Ruling:
(1) W/N the future legitime may be adjudicated and reserved prior to
death
Negative; Being the key adjudicative provision, paragraph 13 of the Compromise
Agreement has to be quoted again:
13. That in the event of death of Julian L. Teves, the properties herein
adjudicated to Josefa Teves Escaño and Emilio B. Teves, (excluding the
properties comprised as Hacienda Medalla Milagrosa together with all its
accessories and accessions) shall be understood as including not only their
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 one-half share which they inherited from their mother but also the
legitimes and other successional rights which would correspond to them of
the other half belonging to their father, Julian L.Teves. In other words, the
properties now selected and adjudicated to Julian L. Teves (not including
his share in the Hacienda Medalla Milagrosa) shall exclusively be
adjudicated to the wife in second marriage of Julian L. Teves and his four
minor children, namely, Milagros Donio Teves, his two acknowledged
natural children Milagros Reyes Teves and Pedro Reyes Teves and his two
legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio
Teves."
With the quoted paragraph as basis, the Court of Appeals ruled that the
adjudication in favor of the heirs of Don Julian from the second marriage became
automatically operative upon the approval of the Compromise Agreement, thereby
vesting on them the right to validly dispose of Lot No. 63 in favor of respondents.
Petitioner argues that the appellate court erred in holding that future legitime can
be determined, adjudicated and reserved prior to the death of Don Julian. The
Court agrees. Our declaration in Blas v. Santos is relevant, where we defined future
inheritance as any property or right not in existence or capable of determination at
the time of the contract, that a person may in the future acquire by succession.
Article 1347 of the New Civil Code explicitly provides:
ART. 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights which are
not intransmissible may also be the object of contracts.
No contract may be entered into upon future inheritance except in cases
expressly authorized by law.
All services which are not contrary to law, morals, good customs, public
order or public policy may likewise be the object of a contract.
Well-entrenched is the rule that all things, even future ones, which are not outside
the commerce of man may be the object of a contract. The exception is that no
contract may be entered into with respect to future inheritance, and the exception
to the exception is the partition inter vivos referred to in Article 1080.
For the inheritance to be considered "future," the succession must not have been
opened at the time of the contract. A contract may be classified as a contract upon
future inheritance, prohibited under the second paragraph of Article 1347, where
the following requisites concur:
(1) That the succession has not yet been opened;
(2) That the object of the contract forms part of the inheritance; and
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(3) That the promissor has, with respect to the object, an expectancy of a
right which is purely hereditary in nature.
The first paragraph of Article 1080, which provides the exception to the exception
and therefore aligns with the general rule on future things, reads:
ART. 1080. Should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the
partition is made by an act inter vivos, no formalities are prescribed by the Article.
The partition will of course be effective only after death. It does not necessarily
require the formalities of a will for after all it is not the partition that is the mode of
acquiring ownership. Neither will the formalities of a donation be required since
donation will not be the mode of acquiring the ownership here after death; since no
will has been made it follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the physical determination of the
part to be given to each heir.
Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to
partition inter vivos his property, and distribute them among his heirs, and this
partition is neither a donation nor a testament, but an instrument of a special
character, sui generis, which is revocable at any time by the causante during his
lifetime, and does not operate as a conveyance of title until his death. It derives its
binding force on the heirs from the respect due to the will of the owner of the
property, limited only by his creditors and the intangibility of the legitime of the
forced heirs.
The partition inter vivos of the properties of Don Julian is undoubtedly valid
pursuant to Article 1347. However, considering that it would become legally
operative only upon the death of Don Julian, the right of his heirs from the second
marriage to the properties adjudicated to him under the compromise agreement
was but a mere expectancy. It was a bare hope of succession to the property of
their father. Being the prospect of a future acquisition, the interest by its nature
was inchoate. It had no attribute of property, and the interest to which it related
was at the time non-existent and might never exist.
Evidently, at the time of the execution of the deed of assignment covering Lot No.
63 in favor of petitioner, Don Julian remained the owner of the property since
ownership over the subject lot would only pass to his heirs from the second
marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian
retained the absolute right to dispose of it during his lifetime. His right cannot be
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challenged by Milagros Donio and her children on the ground that it had already
been adjudicated to them by virtue of the compromise agreement.
(2) W/N the Supplemental Deed is a preterition of Don Julian’s heirs from
the second marriage
Negative; Emerging as the crucial question in this case is whether Don Julian had
validly transferred ownership of the subject lot during his lifetime. The lower court
ruled that he had done so through the Supplemental Deed. The appellate court
disagreed, holding that the Supplemental Deed is not valid, containing as it does a
prohibited preterition of Don Julian’s heirs from the second marriage. Petitioner
contends that the ruling of the Court of Appeals is erroneous. The contention is
well-founded.
Article 854 provides that the preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the execution of
the will or born after the death of the testator, shall annul the institution of heir;
but the devises and legacies shall be valid insofar as they are not inofficious.
Manresa defines preterition as the omission of the heir in the will, either by not
naming him at all or, while mentioning him as father, son, etc., by not instituting
him as heir without disinheriting him expressly, nor assigning to him some part of
the properties. It is the total omission of a compulsory heir in the direct line from
inheritance. It consists in the silence of the testator with regard to a compulsory
heir, omitting him in the testament, either by not mentioning him at all, or by not
giving him anything in the hereditary property but without expressly disinheriting
him, even if he is mentioned in the will in the latter case. But there is no preterition
where the testator allotted to a descendant a share less than the legitime, since
there was no total omission of a forced heir.
In the case at bar, Don Julian did not execute a will since what he resorted to was a
partition inter vivos of his properties, as evidenced by the court
approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of
preterition prior to the death of Don Julian in the absence of a will depriving a legal
heir of his legitime. Besides, there are other properties which the heirs from the
second marriage could inherit from Don Julian upon his death. A couple of
provisions in the Compromise Agreement are indicative of Don Julian’s desire along
this line. Hence, the total omission from inheritance of Don Julian’s heirs from the
second marriage, a requirement for preterition to exist, is hardly imaginable as it is
unfounded.
(3) W/N the transfer to petitioner was valid
Negative; Despite the debunking of respondents’ argument on preterition, still the
petition would ultimately rise or fall on whether there was a valid transfer effected
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by Don Julian to petitioner. Notably, Don Julian was also the president and director
of petitioner, and his daughter from the first marriage, Josefa, was the treasurer
thereof. There is of course no legal prohibition against such a transfer to a family
corporation. Yet close scrutiny is in order, especially considering that such transfer
would remove Lot No. 63 from the estate from which Milagros and her children
could inherit. Both the alleged transfer deed and the title which necessarily must
have emanated from it have to be subjected to incisive and detailed examination.
Well-settled, of course, is the rule that a certificate of title serves as evidence of an
indefeasible title to the property in favor of the person whose name appears
therein. A certificate of title accumulates in one document a precise and correct
statement of the exact status of the fee held by its owner. The certificate, in the
absence of fraud, is the evidence of title and shows exactly the real interest of its
owner.
To successfully assail the juristic value of what a Torrens title establishes, a
sufficient and convincing quantum of evidence on the defect of the title must be
adduced to overcome the predisposition in law in favor of a holder of a Torrens
title. Thus, contrary to the appellate court’s ruling, the appearance of a mere
thumbmark of Don Julian instead of his signature in the Supplemental Deed would
not affect the validity of petitioner’s title for this Court has ruled that a thumbmark
is a recognized mode of signature.
The truth, however, is that the replacement of OCT No. 5203 in the name of Julian
by T.C.T. No. T-375 is marred by a grave irregularity which is also an illegality, as it
contravenes the orthodox, conventional and normal process established by law.
And, worse still, the illegality is reflected on the face of both titles. Where, as in this
case, the transferee relies on a voluntary instrument to secure the issuance of a
new title in his name such instrument has to be presented to the Registry of Deeds.
This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or
the Property Registration Decree. The sections read, thus:
The deed of conveyance shall be filed and endorsed with the number and
the place of registration of the certificate of title of the land conveyed.
As petitioner bases its right to the subject lot on the Supplemental Deed, it should
have presented it to the Register of Deeds to secure the transfer of the title in its
name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the
succeeding TCT No. T-375 either which shows that it had presented
the Supplemental Deed. In fact, there is absolutely no mention of a reference to
said document in the original and transfer certificates of title. It is in this regard that
the finding of the Court of Appeals concerning the absence of entries on the blanks
intended for the Book No. and Page No. gains significant relevance. Indeed, this
aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the
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consequent issuance of TCT No. T-375 in its place are not predicated on a valid
transaction.
What the entry indicates is that the owner’s duplicate of OCT No. 5203 was lost, a
petition for the reconstitution of the said owner’s duplicate was filed in court, and
the court issued an order for the reconstitution of the owner’s duplicate and its
replacement with a new one. But if the entry is to be believed, the court concerned
(CFI, according to the entry) issued an order for the issuance of a new title which is
TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of
Deeds had not been lost.
Apparently, petitioner had resorted to the court order as a convenient contrivance
to effect the transfer of title to the subject lot in its name, instead of
the Supplemental Deed which should be its proper course of action. It was so
constrained to do because the Supplemental Deed does not constitute a deed of
conveyance of the "registered land in fee simple" "in a form sufficient in law," as
required by Section 57 of P.D. No. 1529.
A plain reading of the pertinent provisions of the Supplemental Deed discloses that
the assignment is not supported by any consideration.
The amount of P84,000.00 adverted to in the dispositive portion of the instrument
does not represent the consideration for the assignment made by Don Julian.
Rather, it is a mere statement of the fair market value of all the nineteen (19)
properties enumerated in the instrument, of which Lot No. 63 is just one, that were
transferred by Don Julian in favor of petitioner. Consequently, the testimony of
petitioner’s accountant that the assignment is supported by consideration cannot
prevail over the clear provision to the contrary in the Supplemental Deed.
Art. 749. In order that the donation of the immovable may be valid, it must
be made in a public document, specifying therein the property donated
and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a
separate public document, but it shall not take effect unless it is done
during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be
notified thereof in an authentic form, and this step shall be noted in both
instruments.
In the case at bar, although the Supplemental Deed appears in a public document,
the absence of acceptance by the donee in the same deed or even in a separate
document is a glaring violation of the requirement.
In the instant case, the correct characterization of the Supplemental Deed, i.e.,
whether it is valid or void, is unmistakably determinative of the underlying
controversy. In other words, the issue of validity or nullity of the instrument which
is at the core of the controversy is interwoven with the issues adopted by the
parties and the rulings of the trial court and the appellate court. Thus, this Court is
also resolute in striking down the alleged deed in this case, especially as it appears
on its face to be a blatant nullity.
The decision of the CA is affirmed.

Article 1318 of the New Civil Code enumerates the requisites of a valid contract,
namely: (1) consent of the contracting parties; (2) object certain which is the
subject matter of the contract; and (3) Cause of the obligation which is established.
Thus, Article 1352 declares that contracts without cause, or with unlawful cause
produce no effect whatsoever. Those contracts lack an essential element and they
are not only voidable but void or inexistent pursuant to Article 1409, paragraph (2).
The absence of the usual recital of consideration in a transaction which normally
should be supported by a consideration such as the assignment made by Don Julian
of all nineteen (19) lots he still had at the time, coupled with the fact that the
assignee is a corporation of which Don Julian himself was also the President and
Director, forecloses the application of the presumption of existence of
consideration established by law.

Neither could the Supplemental Deed validly operate as a donation. Article 749 of
the New Civil Code is clear on the point, thus:
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 Heirs of Basbas vs. Basbas
Facts:
Severo Basbas and wife Ana River had a son, Valentin. During Severo’s lifetime, he
acquired a property in Sta. Rosa, Laguna (Lot 39). Adjacent to this lot (Lot 40) was
later acquired by Valentin. Petitioner heirs of Valentin Basbas discovered that
Crispiniano and Ricardo Basbas y Talampas (grandchildren of Nicolas Basbas)
secured for themselves a TCT over Lot 39, on the basis of an Extra-Judicial
Settlement of Estate of deceased Severo Basbas which states that the only heirs of
Severo are Felomino Basbas and Melencio Casubha.
Petitioners filed an action for Annulment of Title and Reconveyance with Damages
against Crispiniano and Ricardo, who both denied petitioner’s ownership over Lot
39, contending that Severo was survived by Valentin and Nicolas Basbas (paternal
grandfather of Crispiniano and Ricardo), who evenly divided Severo’s estate – Lot
39 was inherited by Nicolas, and Lot 40 was inherited by Valentin. This, however,
was not supported by any document. The MTC and RTC ruled in favour of
petitioners, after finding that petitioners fully established their filiation with Severo.
The CA, however, reversed said ruling, and applied the ruling in Heirs of Yaptinchay
v. Hon. Del Rosario, holding that matters on filiation and heirship fall within the
jurisdiction of a probate court, which the MTC or RTC of Sta. Rosa were not
designated to be, and that these matters must be threshed out in a special
proceeding.
Issue and Ruling: W/N the ruling in Heirs of Yaptinchay v. Hon. Del Rosario is
applicable in this case
Negative; Not only is the petitioners’ heirship to Severo uncontroverted. The status
of Valentin as a compulsory heir of Severo and of petitioners’ statuses as heirs of
Valentin and Severo are stipulated facts agreed to by Crispiniano and respondent
Ricardo.
And, contraposed to the fact that Valentin’s status as a legitimate child of Severo is
already established, Nicolas’ status as a purported heir of Severo can no longer be
established, Nicolas’ right thereto expiring upon his death.
Glaringly, there is no pretension from respondent’s end that Nicolas was born of a
valid marriage, only that he is Severo’s son. Nonetheless, even if respondents were
minded to establish the status of Nicolas, whether he is a legitimate or an
illegitimate child of Severo, such can no longer be done.
In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of
certain TCT's was dismissed for failure of the petitioners to demonstrate "any proof
or even a semblance of it" that they had been declared the legal heirs of the
deceased couple, the spouses Yaptinchay. In stark contrast, the records of this case
reveal a document, an Extrajudicial Settlement of Marcelo Sr.'s estate, which
explicitly recognizes herein respondents as Marcelo Sr.'s legitimate children and
heirs. The same document settles and partitions the estate of Marcelo Sr. specifying
Teofista's paraphernal properties, and separates the properties she owns in
common with her children, herein respondents. Plainly, there is no need to re-
declare herein respondents as heirs of Marcelo Sr., and prolong this case
interminably.
Thus, we find no need for a separate proceeding for a declaration of the heirs of
Severo in order to resolve petitioners’ Action for Annulment of Title and
Reconveyance of the subject property. Prescinding from the foregoing, a closer
scrutiny of the documents presented in evidence by Crispiniano and Ricardo before
the trial court, betray the fraudulence of their claim.

On the other hand, Crispiniano and respondent Ricardo miserably fail to establish
the status of their ascendant and purported predecessor-ininterest, Nicolas. In fact,
the testimony of respondent Ricardo tells about the status of Valentin, not about
Nicolas’ status, as a compulsory heir of Severo.

In all, Valentin’s long-possessed status as a legitimate child and thus, heir of Severo,
need no longer be the subject of a special proceeding for declaration of heirship as
envisioned by the Court of Appeals. There is no need to re-declare his statusas an
heir of Severo.

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 Capablanca v. Heirs of Pedro Bas
Facts:
Lot 2535 of the Talisay-Minglanilla Friar Land’s Estate with an area of 6,120 sqm is
the subject of this case. Andres and Pedro (both surnamed Bas) acquired the said
lot in 1937. In 1939, Pedro sold his share to Faustina. After the latter’s death, her
heirs sold the lot to Alejandra, one of the heirs of Faustina. Alejandra in turn sold
the Edith Deen, then the latter to Atty. Deen in 1968. Upon the latter’s death, the
heirs of Atty. Deen sold the lot to Norberto Bas in 1988 who took possession
thereof and built a house thereon. In 1995, Norberto died without a will and
succeeded by his niece and only heir, Lolita Capablanca, petitioner herein. In 1996,
Lolita learned that TCT No. 96676 was issued in the names of Andres and Pedro on
the basis of a reconstitution. When Lolita tried to register her portion of Lot 2535,
the same was denied on the ground that TCT No. 966976 was already cancelled and
TCT Nos. 81, 81, 83 and 85 had been issued to the heirs of Pedro Bas. In 1997,
Lolita filed a complaint before the RTC of Cebu for the cancellation of the
mentioned TCTs. The RTC rendered judgment in favor of Lolita, that there was
substantial evidence to prove that Lolita had been in long possession of the lot
under a claim of ownership as heir of Norberto, and that is was not necessary for
her to be declared first as heir of Norberto before filing the complaint.
Consequently, the RTC upheld the 1939 sale by Pedro to Faustina. Thus, when
Pedro sold his share, the heirs acquired no portion by inheritance. Upon appeal, the
CA reversed the decision of the RTC holding that Lolita must first be declared as the
sole heir of Norberto based on the case of Yaptinchay v. Del Rosario.
Issue and Ruling: W/N petitioner must first be declared as the sole heir of Norberto
before she can file the action
Negative; Petitioner argues that the 1999 case of the Heirs of Yaptinchay v. Del
Rosario cited in the Court of Appeals Decision does not apply to this case because
the factual circumstances are different. In that case, the claims of the opposing
parties were anchored on their alleged status as heirs of the original owner. "Hence
there may have been the need for a previous judicial declaration of heirship in a
special proceeding." Here, petitioner does not claim to be an heir of Pedro, the
original owner. Rather, her interest over the property is derived from a series of
transactions starting from the sale executed by Pedro.
Petitioner further contends that respondents neither raised the ground "lack of
cause of action" as an affirmative defense nor filed a motion to dismiss before the
court a quo. Instead, they allowed the trial to proceed with their full participation
all throughout. Petitioner asserts that respondents' action or inaction should be
43
constituted a waiver. Otherwise, respondents' "failure to properly act on its
perceived defect" in the complaint hampers the speedy disposition of the action
"and would only promote multiplicity of suits."
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Contrary to the erroneous conclusion of the Court of Appeals, this Court finds no
need for a separate proceeding for a declaration of heirship in order to resolve
petitioner's action for cancellation of titles of the property.
The dispute in this case is not about the heirship of petitioner to Norberto but the
validity of the sale of the property in 1939 from Pedro to Faustina, from which
followed a series of transfer transactions that culminated in the sale of the property
to Norberto. For with Pedro's sale of the property in 1939, it follows that there
would be no more ownership or right to property that would have been transmitted
to his heirs.
Petitioner's claim is anchored on a sale of the property to her predecessor-in-
interest and not on any filiation with the original owner. What petitioner is pursuing
is Norberta's right of ownership over the property which was passed to her upon
the latter's death.
This Court has stated that no judicial declaration of heirship is necessary in order
that an heir may assert his or her right to the property of the
deceased. In Marabilles v. Quito:
The right to assert a cause of action as an heir, although he has not been
judicially declared to be so, if duly proven, is well settled in this jurisdiction.
This is upon the theory that the property of a deceased person, both real
and personal, becomes the property of the heir by the mere fact of death of
his predecessor in interest, and as such he can deal with it in precisely the
same way in which the deceased could have dealt, subject only to the
limitations which by law or by contract may be imposed upon the deceased
himself. Thus, it has been held that "[t]here is no legal precept or
established rule which imposes the necessity of a previous legal
declaration regarding their status as heirs to an intestate on those who,
being of age and with legal capacity, consider themselves the legal heirs of
a person, in order that they may maintain an action arising out of a right
which belonged to their ancestor" ... A recent case wherein this principle
was maintained is Cabuyao vs. [C]aagbay. (Emphasis supplied)
The Court of Appeals' reliance on the ruling in Heirs of Yaptinchay v. Del Rosario was
misplaced. In that case, the motion to dismiss was filed immediately after the
second Amended Complaint was filed. The trial court granted the motion to dismiss,
holding that the Heirs of Yaptinchay "have not shown any proof or even a
semblance of it-except the allegations that they are the legal heirs of the above-
named Yaptinchays-that they have been declared the legal heirs of the deceased
couple."
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Here, respondents never raised their objection to petitioner's capacity to sue either
as an affirmative defense or in a motion to dismiss. Rule 9, Section 1 of the Rules of
Court states, "[d]efenses and objections not pleaded either in a motion to dismiss
or in the answer are deemed waived." Thus, it was erroneous for the Court of
Appeals to dismiss the complaint on the ground that there was no prior judicial
declaration of petitioner's heirship to Norberto.
In Litam and Solivio, the adverse parties were putative heirs to a decedent's estate
or parties to the special proceedings for an estate's settlement. Hence, this Court
ruled that questions on the status and right of the contending parties must be
properly ventilated in the appropriate special proceeding, not in an ordinary civil
action.
Here, as stated, the main issue is the annulment of title to property, which
ultimately hinges on the validity of the sale from Pedro to Faustina. Petitioner does
not claim any filiation with Pedro or seek to establish her right as his heir as against
the respondents. Rather, petitioner seeks to enforce her right over the property
which has been allegedly violated by the fraudulent acts of respondents.
Furthermore, as found by the Regional Trial Court:
The plaintiff [Lolita] has sufficient interest to protect in the subject portion
of Lot 2535. She had been there for around thirty (30) years, and had been
in possession thereof under a claim of ownership as an alleged heir of
Norberto Bas after the latter's death on December 15, 1993, that is: long
before the issuance of TCT Nos. T-100181, T-100182, T-100183[,] and T-
100185 in 1997, and even TCT No. T-96676 in 1996.
voluntarily submitted the issue to the trial court and already presented their
evidence. It held:
It appearing, however, that in the present case the only property of the
intestate estate of Portugal is the Caloocan parcel of land, to still subject it,
under the circumstances of the case, to a special proceeding which could
be long, hence, not expeditious, just to establish the status of petitioners
as heirs is not only impractical; it is burdensome to the estate with the
costs and expenses of an administration proceeding. And it is superfluous
in light of the fact that the parties to the civil case - subject of the present
case, could and had already in fact presented evidence before the trial
court which assumed jurisdiction over the case upon the issues it defined
during pre-trial.
In fine, under the circumstances of the present case, there being no compelling
reason to still subject Portugal's estate to administration proceedings since a
determination of petitioners' status as heirs could be achieved in the civil case filed
by petitioners, the trial court should proceed to evaluate the evidence presented by
the parties during the trial and render a decision thereon.
In this case, there is no necessity for a separate special proceeding and to require it
would be superfluous considering that petitioner had already presented evidence to
establish her filiation and heirship to Norberto, which respondents never disputed.

The existence of the questioned certificates of title, and other related documents,
constitute clouds on said interest. There seems, therefore, to be no necessity that
the plaintiff should have been declared first as an heir of Norberta Bas as a
prerequisite to this action. Her possession of the subject lot under a claim of
ownership is a sufficient interest to entitle her to bring this suit. (Citation omitted)

This case has gone a long way since the complaint was filed in 1997. A full-blown
trial had taken place and judgment was rendered by the Regional Trial Court where
it thoroughly discussed, evaluated, and weighed all the pieces of documentary
evidence and testimonies of the witnesses of both parties. At this point, to dismiss
the case and require petitioner to institute a special proceeding to determine her
status as heir of the late Norberta would hamper, instead of serve, justice.

In Portugal v. Portugal-Beltran, where the contending parties insisted to be the

legal heirs of the decedent, this Court dispensed with the need to institute a
separate special proceeding to determine their heirship since the parties had
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 Ortega vs. Valmonte
Facts:
Placido Valmonte lived in the US until he reached retirement. He came home to stay
in the Philippines and lived in the house and lot which he owned in common with
sister Ciriaca Valmonte. Two years after his arrival from the US, and at the age of
80, he wed Josefina, 28. Two years later, Placido died.
Placido executed a notarial last will and testament in English and consisting of 2
pages dated 15 June 1983, but acknowledged only on 9 August 1983. The allowance
of the probate of this will was opposed by Leticia Valmonte Ortega, on the grounds,
among others, of non-compliance with the legal solemnities and formalities in the
execution and attestation of the will, and mental incapacity of the testator at the
time of the execution of the will as he was then in an advanced state of senility.
Finding the grounds extant and proven, the court disallowed probate. However, The
CA upheld the credibility of the notary public and the subscribing witnesses who
had acknowledged the due execution of the will. Moreover, it held that the testator
had testamentary capacity at the time of the execution of the will. It added that his
"sexual exhibitionism and unhygienic, crude and impolite ways" did not make him a
person of unsound mind.
In the present case, petitioner assails the validity of Placido Valmonte’s will by
imputing fraud in its execution and challenging the testator’s state of mind at the
time.
Issues and Ruling:
(1) W/N he signature of Placido Valmonte in the subject will was procured by
fraud or trickery, and that Placido Valmonte never intended that the
instrument should be his last will and testament
Negative; Petitioner does not dispute the due observance of the formalities in the
execution of the will, but maintains that the circumstances surrounding it are
indicative of the existence of fraud. Particularly, she alleges that respondent, who is
the testator’s wife and sole beneficiary, conspired with the notary public and the
three 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.
Petitioner contends that it was "highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] Fil-American pensionado," thus
casting doubt on the intention of respondent in seeking the probate of the will.
Moreover, it supposedly "defies human reason, logic and common experience" for
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an old man with a severe psychological condition to have willingly signed a last will
and testament.
We are not convinced. Fraud "is a trick, secret device, 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 the fraud,
he would not have made."
We stress that 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.
Unfortunately in this case, other than the self-serving allegations of petitioner, no
evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will. That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty
years his junior, as the sole beneficiary; and disregarded petitioner and her family,
who were the ones who had taken "the cudgels of taking care of [the testator] in his
twilight years."
Moreover, as correctly ruled by the appellate court, 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 x x x be executed and acknowledged on the same
occasion." More important, the will must be subscribed by the testator, as well as
by three or more credible witnesses who must also attest to it in the presence of
the testator and of one another. Furthermore, the testator and the witnesses must
acknowledge the will before a notary public. In any event, we agree with the CA
that "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
the instrumental witnesses."
Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the
commission of a fraud. There was no showing that the witnesses of the proponent
stood to receive any benefit from the allowance of the will. The testimonies of the
three subscribing witnesses and the notary are credible evidence of its due
execution. Their testimony favoring it and the finding that it was executed in
accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.
(2) Whether or not Placido Valmonte has testamentary capacity at the time he
allegedly executed the subject will
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Affirmative; In determining the capacity of the testator to make a will, the Civil
Code gives the following guidelines:
"Article 798. In order to make a will it is essential that the testator be of
sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator be in
full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will
to know the nature of the estate to be disposed of, the proper objects of
his bounty, and the character of the testamentary act.
of mental aberration generally known as insanity or idiocy, there are
numberless degrees of mental capacity or incapacity and while on one
hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of
making a will; a weak or feebleminded person may make a valid will,
provided he has understanding and memory sufficient to enable him to
know what he is about to do and how or to whom he is disposing of his
property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or
otherwise. It has been held that testamentary incapacity does not
necessarily require that a person shall actually be insane or of unsound
mind."

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

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

According to Article 799, the three things that the testator must have the ability to
know to be considered of sound mind are as follows: (1) the nature of the estate to
be disposed of, (2) the proper objects of the testator’s bounty, and (3) the character
of the testamentary act. Applying this test to the present case, we find that the
appellate court was correct in holding that Placido had testamentary capacity at the
time of the execution of his will.

It must be noted that 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 locations. As regards the proper objects of his bounty, it was sufficient
that he identified his wife as sole beneficiary. As we have stated earlier, 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.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA, which held

thus:

"Between the highest degree of soundness of mind and memory which

unquestionably carries with it full testamentary capacity, and that degrees
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 Testate Estate of the Late Alipio Abada vs. Abaja
Facts:
Abada and Paula Toray both died without legitimate children. Alipio Abaja then filed
a petition for the probate of the last will and testament of Abada, who allegedly
name as his heir his natural children Eulogio Abaja (father of Alipio) and Rosario
Cordova.
Nicanor Caponong opposed the petition on the ground that Abada left no will when
he died; and if he really executed it, it should be disallowed on the grounds that (1)
it was not executed and attested as required by law; (2) it was not intended as the
last will of the testator; and (3) it was procured by undue and improper influence on
the part of the beneficiaries. The same grounds were also invoked by the alleged
intestate heirs of Abada, his nephews, nieces and grandchildren.
Alipio filed another petitioner for the probate of the last will and testament of
Toray. Caponong and the alleged intestate heirs opposed the petition on the same
grounds. The RTC issued a resolution admitting to probate the will of Toray, and
designated Belinda Capanong-Noble as the special administratrix of the estate of
Abada and Toray. The CA affirmed said resolution. Hence, the present petition.
Issues and Ruling:
(1) What laws apply to the probate of the last will of Abada
Abada executed his will on 4 June 1932. The laws in force at that time are the Civil
Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure which governed the execution of wills before the enactment of the New
Civil Code.
The matter in dispute in the present case is the attestation clause in the will of
Abada. Section 618 of the Code of Civil Procedure, as amended by Act No.
2645, governs the form of the attestation clause of Abada’s will.
(2) W/N the will of Abada requires acknowledgement before a notary public
Negative; Caponong-Noble asserts that the will of Abada does not indicate that it is
written in a language or dialect known to the testator. Further, she maintains that
the will is not acknowledged before a notary public. She cites in particular Articles
804 and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or
dialect known to the testator.
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Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. xxx
Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code. Article
804 of the Old Civil Code is about the rights and obligations of administrators of the
property of an absentee, while Article 806 of the Old Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the
New Civil Code is taken from Section 618 of the Code of Civil Procedure. Article 806
of the New Civil Code is taken from Article 685 of the Old Civil Code which provides:
Art. 685. The notary and two of the witnesses who authenticate the will
must be acquainted with the testator, or, should they not know him, he
shall be identified by two witnesses who are acquainted with him and are
known to the notary and to the attesting witnesses. The notary and the
witnesses shall also endeavor to assure themselves that the testator has, in
their judgment, the legal capacity required to make a will.
Witnesses authenticating a will without the attendance of a notary, in cases falling
under Articles 700 and 701, are also required to know the testator.
However, the Code of Civil Procedure repealed Article 685 of the Old Civil Code.
Under the Code of Civil Procedure, the intervention of a notary is not necessary in
the execution of any will. Therefore, Abada’s will does not require acknowledgment
before a notary public.
(3) W/N the will must expressly state that it is written in a language or dialect
known to the testator
Negative; 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. On this issue, the Court of Appeals held that
the matter was not raised in the motion to dismiss, and that it is now too late to
raise the issue on appeal. We agree with Caponong-Noble that the doctrine of
estoppel does not apply in probate proceedings. In addition, the language used in
the will is part of the requisites under Section 618 of the Code of Civil Procedure
and the Court deems it proper to pass upon this issue.
Nevertheless, Caponong-Noble’s contention must still fail. There is no statutory
requirement to state in the will itself that the testator knew the language or dialect
used in the will. This is a matter that a party may establish by
proof aliunde. Caponong-Noble further argues that Alipio, in his testimony, has
failed, among others, to show that Abada knew or understood the contents of the
will and the Spanish language used in the will. However, Alipio testified that Abada
used to gather Spanish-speaking people in their place. In these gatherings, Abada
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and his companions would talk in the Spanish language. This sufficiently proves that
Abada speaks the Spanish language.
(4) (a) W/N the will of Abada has an attestation clause, and if so, (b) whether
the attestation clause complies with the requirements of the applicable
laws
(a) Affirmative; A scrutiny of Abada’s will shows that it has an attestation clause.
Caponong-Noble proceeds to point out several defects in the attestation clause.
Caponong-Noble alleges that the attestation clause fails to state the number of
pages on which the will is written.
The allegation has no merit. The phrase "en el margen izquierdo de todas y cada
una de las dos hojas de que esta compuesto el mismo" which means "in the left
margin of each and every one of the two pages consisting of the same" shows that
the will consists of two pages. The pages are numbered correlatively with the letters
"ONE" and "TWO" as can be gleaned from the phrase "las cuales estan paginadas
correlativamente con las letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation clause fails to state expressly
that the testator signed the will and its every page in the presence of three
witnesses. She then faults the Court of Appeals for applying to the present case the
rule on substantial compliance found in Article 809 of the New Civil Code.
The first sentence of the attestation clause reads: "Suscrito y declarado por el
testador Alipio Abada como su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen
izquierdo de todas y cada una de las hojas del mismo." The English translation is:
"Subscribed and professed by the testator Alipio Abada as his last will and
testament in our presence, the testator having also signed it in our presence on the
left margin of each and every one of the pages of the same." The attestation clause
clearly states that Abada signed the will and its every page in the presence of the
witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does not
indicate the number of witnesses. On this point, the Court agrees with the appellate
court in applying the rule on substantial compliance in determining the number of
witnesses. While the attestation clause does not state the number of witnesses, a
close inspection of the will shows that three witnesses signed it.
In Adeva vda. De Leynez v. Leynez, the petitioner, arguing for liberal construction of
applicable laws, enumerated a long line of cases to support her argument while the
respondent, contending that the rule on strict construction should apply, also cited
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a long series of cases to support his view. The Court, after examining the cases
invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and
inflexible, which would be applicable to all cases. More than anything else,
the facts and circumstances of record are to be considered in the
application of any given rule. If the surrounding circumstances point to a
regular execution of the will, and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the
inclination should, in the absence of any suggestion of bad faith, forgery or
fraud, lean towards its admission to probate, although the document may
suffer from some imperfection of language, or other non-essential defect.
x x x.
An attestation clause is made for the purpose of preserving, in permanent
form, a record of the facts attending the execution of the will, so that in
case of failure of the memory of the subscribing witnesses, or other
casualty, they may still be proved. (Thompson on Wills, 2d ed., sec. 132.) A
will, therefore, should not be rejected where its attestation clause serves
the purpose of the law. x x x
(b) Affirmative; We rule to apply the liberal construction in the probate of Abada’s
will. Abada’s will clearly shows four signatures: that of Abada and of three other
persons. It is reasonable to conclude that there are three witnesses to the will. The
question on the number of the witnesses is answered by an examination of the will
itself and without the need for presentation of evidence aliunde. The Court
explained the extent and limits of the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does
it open the door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with precision. They
do not allow evidence aliunde to fill a void in any part of the document or
supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration within its confines, to
ascertain its meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results.
(5) W/N the attestation clause of Abada’s will does not expressly state the
circumstances that the witnesses witnessed and signed the will and all its
pages in the presence of the testator and of each other
Negative; Precision of language in the drafting of an attestation clause is desirable.
However, it is not imperative that a parrot-like copy of the words of the statute be
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made. It is sufficient if from the language employed it can reasonably be deduced
that the attestation clause fulfills what the law expects of it.

The last part of the attestation clause states "en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador." In English, this
means "in its witness, every one of us also signed in our presence and of the
testator." This clearly shows that the attesting witnesses witnessed the signing of
the will of the testator, and that each witness signed the will in the presence of one
another and of the testator.

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 Azuela vs. CA
Facts:
Petitioner Felix Azuela filed a petition to probate the notarial will of his aunt
Eugenia Igsolo. The will consisted of 2 pages and was written in Filipino. The 3
witnesses affixed their signatures on the left-hand margin of both pages but not at
the bottom of the attestation clause. The petition adverted to 2 heirs: petitioner,
and one Lynn Igsolo who was alleged to have resided abroad.
The petition was opposed by Geralda Castillo, who represented as the attorney-in-
fact of the 12 legitimate heirs of Igsolo. Castillo claimed that the will is a forgery,
only made to be utilized as a defense in the cases (forcible entry and usurpation of
real property) filed by oppositor against petitioner. Oppositor asserted that Eugenia
was actually survived by 12 legitimate heirs (grandchildren) who were then residing
abroad. Oppositor also argued that the will was not executed and attested to in
accordance with law, pointing out that the decedent’s signature did not appear on
the second page of the will and that the will was not properly acknowledged.
The RTC admitted the will to probate, after a careful examination of the will and
consideration of the testimonies of the subscribing and attesting witnesses and
having in mind the liberalization of the interpretation of the law. It also considered
the requirements of the law on the attestation and acknowledgement to have been
substantially complied with. The CA reversed the RTC and ordered dismissal of the
petition for probate after noting that the attestation clause failed to state the
number of pages used in the will, thus rendering it void.
In the present petition, petitioner argues that Art. 805 of the Civil code is merely
directory and thus susceptible to the substantial compliance rule.
Issue and Ruling: W/N the will complied with the requisites under the law
Negative; As admitted by petitioner himself, the attestation clause fails to state the
number of pages of the will. There was an incomplete attempt to comply with this
requisite, a space having been allotted for the insertion of the number of pages in
the attestation clause. Yet the blank was never filled in; hence, the requisite was
left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca and In re: Will of Andrada. In Uy Coque, the
Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will. In ruling that
the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The purpose of requiring
the number of sheets to be stated in the attestation clause is obvious; the
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document might easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will and in the absence of
a statement of the total number of sheets such removal might be effected by
taking out the sheet and changing the numbers at the top of the following sheets
or pages. If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the inserting of new
pages and the forging of the signatures of the testator and witnesses in the margin,
a matter attended with much greater difficulty."
The case of In re Will of Andrada concerned a will the attestation clause of which
failed to state the number of sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the point that the defect
pointed out in the attesting clause is fatal." It was further observed that "it cannot
be denied that the x x x requirement affords additional security against the danger
that the will may be tampered with; and as the Legislature has seen fit to prescribe
this requirement, it must be considered material."
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code
in 1950, at a time when the statutory provision governing the formal requirement
of wills was Section 618 of the Code of Civil Procedure. Reliance on these cases
remains apropos, considering that the requirement that the attestation state the
number of pages of the will is extant from Section 618. However, the enactment of
the Civil Code in 1950 did put in force a rule of interpretation of the requirements
of wills, at least insofar as the attestation clause is concerned, that may vary from
the philosophy that governed these two cases. Article 809 of the Civil Code states:
"In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article
805."
Caneda v. Court of Appeals features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation
clause in wills. Uy Coque and Andrada are cited therein, along with several other
cases, as examples of the application of the rule of strict construction. However, the
Code Commission opted to recommend a more liberal construction through the
"substantial compliance rule" under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was
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 notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings. (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to
the will in the presence of the testator and of each other, the other omission cited
by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself." Thus, a
failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one another’s
presence should be considered a fatal flaw since the attestation is the only textual
guarantee of compliance.
The failure of the attestation clause to state the number of pages on which the will
was written remains a fatal flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages. The failure to state the number of
pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial
compliance with this requirement if the will states elsewhere in it how many pages
it is comprised of, as was the situation in Singson and Taboada. However, in this
case, there could have been no substantial compliance with the requirements under
Article 805 since there is no statement in the attestation clause or anywhere in the
will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the inclinations of
the members of the Code Commission in incorporating Article 805, the fact remains
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that they saw fit to prescribe substantially the same formal requisites as
enumerated in Section 618 of the Code of Civil Procedure, convinced that these
remained effective safeguards against the forgery or intercalation of notarial
wills. Compliance with these requirements, however picayune in impression,
affords the public a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner established in the will. The
transcendent legislative intent, even as expressed in the cited comments of the
Code Commission, is for the fruition of the testator’s incontestable desires, and
not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses.
Cagro v. Cagro is material on this point. As in this case, "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." While three (3) Justices considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice
Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the
will" required by law to be made by the attesting witnesses, and it must necessarily
bear their signatures. An unsigned attestation clause cannot be considered as an act
of the witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the
left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures are
in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at
the bottom thereof, be admitted as sufficient, it would be easy to add such clause
to a will on a subsequent occasion and in the absence of the testator and any or all
of the witnesses.
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The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the
will, from the requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these two classes of
signature are distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin
of the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in the clause, since the signatures that
do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed
the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses’
signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the will is written;
the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806
in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
ng Maynila." By no manner of contemplation can those words be construed as an
acknowledgment. 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
UC School of Law
Wills and Succession
deed. It involves an extra step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to by
the executor. Ordinarily, the language of the jurat should avow that the document
was subscribed and sworn before the notary public, while in this case, the notary
public averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed and sworn to. The will does
not present any textual proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free act or deed.
The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of
perjury, thus allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she had
designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary public
by the testator and the witnesses is fatally defective, even if it is subscribed and
sworn to before a notary public.
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2019-2020