G.R. No.

103554 May 28, 1993

CANEDA vs. HON. COURT OF APPEALS 

FACTS:

The records show that on December 5, 1978, Mateo Caballero, a widower without any children, executed a last will and testament at his residence
before three attesting witnesses. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo
Manigos, in the preparation of that last will. It was declared therein, among other things, that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the testator. 

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition seeking the probate of his last will and testament. However, the
scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away before his petition could finally be
heard by the probate court. On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special
administrator of the testator's estate and he was so appointed by the probate court in its order.

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the
Intestate Estate of Mateo Caballero". On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated and opposed
thereat the probate of the Testator's will and the appointment of a special administrator for his estate. 

Benoni Cabrera died on February 8, 1982 hence the probate court, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records to the archives since the testate proceeding for the probate of the will
had to be heard and resolved first. 

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he could not
have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 

On April 5, 1988, the probate court rendered a decision that the Last Will and Testament of Mateo Caballero was executed in accordance with all
the requisites of the law. 

The CA promulgated its decision affirming that of the trial court.

ISSUE: Whether or not the attestation clause in question may be considered as having substantially complied with the requirements of Art. 805 of
the Civil Code. 

RULING: No. It does not comply with the provisions of the law.
A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate after his death. Under the Civil Code, there are two kinds of wills which a testator may execute. the first kind is
the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's
name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.

The attestation should state the number of pages used upon which the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator
and of one another.

If the attestation clause is in a language not known to the witness, it shall be interpreted to them.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before
them and to the manner of the execution the same.  It is a separate memorandum or record of the facts surrounding the conduct of execution and
once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed.    

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article
805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses 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. We
agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed
signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same
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 spaces provided for his signature and on the left hand margin," obviously
refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other
hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify
and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses since said
phrase immediately follows the words " he has signed the same and every page thereof, on the spaces provided for his signature and on the left
hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof
in the presence of the testator and of one another .
It is our considered view that the absence of that 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 admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code,

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE. The court  a
quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of
Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and
thereafter duly proceed with the settlement of the estate of the said decedent.

SO ORDERED.

2. A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA vs. JUDGE REYNALDO P. HONRADO 

FACTS:

Mauro Suroza, a corporal of the U.S. Army, married Marcelina Salvador in 1923. They were childless. They reared a boy named Agapito who used
the surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera.

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why on her death she had
accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in a special proceeding.

A woman named Arsenia de la Cruz, apparently a girlfriend of Agapito, was entrusted with a child named Marilyn Sy. Marilyn was later delivered to
Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter. Marilyn used the surname Suroza.
She stayed with Marcelina but was not legally adopted by Agapito. 

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will, which is in English, was
thumbmarked by her. She was illiterate . Her letters in English to the Veterans Administration were also thumbmarked by her. In that will, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died in 1974 as a resident of Makati, Rizal. She owned a 150-square meter lot and house in that place.

In 1975, Marina Paje, alleged to be a laundrywoman of Marcelina and the executrix in her will filed with the court a petition for the probate of
Marcelina's alleged will. The case was assigned to respondent Judge Honrado.
Judge Honrado appointed Marina as administratrix. He then issued two orders directing the Merchants Banking Corporation and the Bank of
America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring
Corazon Castro, the custodian of the passbooks, to deliver them to Marina. He also issued another order instructing a deputy sheriff to eject the
occupants of the testatrix's house, among whom was Nenita Suroza, and to place Marina in possession thereof.

This prompted Nenita to file a motion to set aside the order ejecting them. They alleged that the decedent's son Agapito was the sole heir of the
deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's
granddaughter. Also, Nenita stated that the alleged will is void because Marcelina did not appear before the notary public and because it is written
in English which is not known to her.

In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were claiming Marcelina's estate, he issued an order
probating her supposed will wherein Marilyn was the instituted heiress. He then closed the testamentary proceeding after noting that the executrix
had delivered the estate to Marilyn, and that the estate tax had been paid.

About ten months later, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her
contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know English, the
language in which the will was written. She denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw
from various banks the deposits of Marcelina.

Issue:

Whether or nor a 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.

Ruling: Yes

Administrative action may be taken against a judge of the court of first instance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law). 

In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate
testatrix, could have readily perceived that the will is void.

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 respondent 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.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

Judge Honrado is fined equivalent to his salary for one month.

3.Garcia vs Lacuesta
GR No. L-4067
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 or not a cross appearing on the will can be considered as a valid signature.
HELD: No, it cannot be considered as a valid signature.
The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator’s name under
his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from
the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his
name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner’s theory is that the cross is as much a signature
as a thumbmark.
It is apparent that the cross appearing on the will is not the usual signature of Antero Mercado or even one of the ways by which he signed his
name. We are not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered.
4.Ex Parte Santiago
Facts:
A certain document purporting to be the last will and testament of one Esperanza Cecilio is the issue of contention in this case. The name of the
deceased is nowhere attached to the instrument, but the concluding paragraph reads as follows

"In witness whereof, and at my request, on account of my weakness and inability to sign my name, this document has been executed and read to
me I have caused him to sign it, in this town of Polo, barrio of Pariancillo, this 6th day of July, 1903 —"
Issue:
Whether or not the will is valid despite no name or signature of the alleged testatrix is attached. No
Ruling:
The signature of the deceased is not attached to the document in question in accordance with the provisions of section 618 of Act No. 190, and
that the form adopted is not sufficient to authenticate a will. It matters not what may have been the form usually adopted prior to the publication
of this act, or whether a particular form of signature may be sufficient for the authentication of an ordinary written instrument. The form which
must be adopted in the signing of wills is expressly prescribed in this act and must be followed. The English text is positive, clear, and explicit, and
prescribes, as one of the requisites of a valid will, that it be "signed by the testator, or by the testator’s name written by some other person in his
presence and by his express direction.

On the issue that it is of mere formality:

Counsel for the appellant urges that since it is evident that the document in question was executed for and as the last will and testament of the
deceased, and as the manner in which the signature should be attached to a will is a mere formality, the document should be admitted to probate,
even though it be held that the formal authentication adopted by the deceased was not in exact conformance with the method prescribed by law.
We hold however, that "no proof of good faith can avail or supply the requisites of the law," for any other rule would open the door to mistake and
fraud and tend to encourage fraudulent imposition in the establishment of spurious wills.
English decisions were rendered provide that a will, to be valid, must be signed "by the testator or by some other person in his presence and by his
direction," whereas our statute provides that it must be signed "by the testator, or by the testator’s name written by some other person, in his
presence and by his express direction."u
5.JABONETA VS GUSTILO
G.r. No. 1641
January 19, 1906

Facts:
Macario Jaboneta executed under the following circumstances the document in question, which has been presented for probate as his will: 
"Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question be written, and calling Julio Javellana,
Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said document as his will. They were all together, and were in the room where
Jaboneta was, and were present when he signed the document, Isabelo Jena signing afterwards as a witness, at his request, and in his presence
and in the presence of the other two witnesses. Aniceto Jalbuena then signed as a witness to the presence of the testator, and in the presence of
the other two persons who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As he was
leaving the house Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but did not sign in the presence
of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio Javellana signed as a witness in the presence of the testator and of
the witness Aniceto Jalbuena” .
The probate court denied the last will and testament of Macario Jaboneta, deceased. The lower court was of the opinion from the evidence
adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of
the witnesses, as required by the provisions of section 618 of the Code of Civil Procedure.

Issue: Whether or not the lower court correctly held that Julio did not sign in the presence of another witness, Isabelo

Ruling: No. The Supreme Court negated the findings of the lower court and held that the statutory requirement under Section 618
of the Code of Civil Procedure was complied with.
The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken
together with the testimony of the remaining witnesses, which shows that Javellana did in fact there and then sign his name to the will, convinces
the court that the signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back was turned while a
portion of the name of the witness was being written, is of no importance. He, with the other witnesses and the testator, has assembled for the
purpose of execution the testament, and were together in the same room for that purpose, and at the moment when the witness Javellana signed
the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place
by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so, therefore the document was in fact
signed before he finally left the room.
"The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the testator may have ocular
evidence of the identity of the instrument subscribed by the witness and himself, and the generally accepted tests of presence are vision and
mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)" 
In the matter of Bedell (2 Connoly (N.Y.) , 328) it was held that it is sufficient if it witnesses are together for the purpose of witnessing the
execution of the will, and in a position to actually see the testator write, if they choose to do so; and there are many cases which law down the rule
that the true test of vision is not whether the testator actually saw the witness sign, but whether he might have seen him sign,
considering his mental and physical condition and position at the time of the subscription. (Spoonemore v. Cables, 66 Mo., 579.) 
The principles on which these cases rest and the tests of presence as between the testator and the witnesses are equally applicable in determining
whether the witnesses signed the instrument in the presence of each other, as required by the statute, and applying them to the facts proven in
the proceedings, the statutory requisites as to the execution of the instrument were complied with, and that the lower court erred in denying
probate to the will on the ground stated in the ruling appealed from.

6. Nera vs. Rimando

GR No. L-5971, February 27, 1911

Facts:
This is an appeal from the judgment of the CFI. It originated from a probate of the last will and testament of Pedro Rimando. 

The circumstances attending the signing of the deceased’s will on the day of its execution was in dispute. There were two allegations:
1. that the testator and all the subscribing witnesses were attaching their signatures in a small inner room
2. that the testator and some of the subscribing witnesses were attaching their signatures in the small inner room while one of the witnesses
was in a large outer room connected thereto but separated by a hanging curtain.

While the trial court admitted the instrument to probate as the last will and testament of the deceased, it did not consider the position of the
witnesses as of vital importance in the determination of the case. It was of the opinion that had the 2nd circumstance been proven, it would not be
sufficient in itself to invalidate the execution of the will.

Issue: 
1. WON the will is valid? Yes 

Held: Decree affirmed

1. Yes, the will is valid.

The position of the testator and of the witnesses to a will, at the moment of the subscription by each, must be such that they may
see each other sign if they choose to do so.

Here, SC found that all the subscribing witnesses were in the small room with the testator at the time they attached their signatures to the
instrument. This indicates that they could have seen each other sign.

Hence, the will is valid and admissible for probate.

Otherwise, if one subscribing witness to the will is shown to have been in the outer room at the time when the testator and the other witnesses
attached their signatures to the instrument in the small inner room, the will would be held invalid—the attaching of the said signatures, under such
circumstance, not being done in the presence of the witness in the large outer room. This is because the line of vision from this witness to the
testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner room from the outer one at
the moment of inscription of each signature.

7. IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE

 CELSO ICASIANO, petitioner-appellee
v
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
G.R. No. L-18979             June 30, 1964
REYES, J.B.L., J.:
 
FACTS:
This case concerns the will left by Josefa Villacorte.  
 
A special proceeding was conducted for the admission to probate of the said will and its duplicate.  Accordingly, the deceased appointed Celso
Icasiano (petitioner) as the executor.  But respondents, Natividad and Enrique, children of the deceased opposed the proceeding.  However, after
several hearings the trial court issued an order admitting the will and its duplicate to probate. 
 
In opposing the admission of the will to probate, the respondents capitalized, among others, on the failure of Atty. Jose V. Natividad, one of the
three witnesses, to affix his signature on page 3 of the 5 pages of the original will.   Atty.  Natividad, however, was able to affix his signature on
page 3 of the duplicate will.
 
On the witness stand, Atty. Natividad admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page
three (3) was signed in his presence.
 
ISSUE:
Whether the failure of Atty Natividad, as one of the attending witnesses, on page 3 of Josefa Villacorte’s will is so fatal a defect so as to warrant the
non-admission of said will to probate?
 
HELD:
 
No, the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to justify denial of probate. 
 
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 .
 
Here, the impossibility of substitution of this page is assured not only on 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. 
 
That the failure of witness 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.
 
This is not the first time that the Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are
otherwise satisfied. 
 
In Abangan v Abangan, it was held that 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.   In Lopez v Liboro, it was held that despite the
requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal 
 
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.

9. IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, petitioner, vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin), respondent.

FACTS:
Petitioner Apolonio Taboada filed a petition for probate in which he attached the alleged last will and testament of the late Dorotea Perez. Written
in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end
or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left
hand margin by the testatrix.

Since no opposition was filed, the Court allowed the presentation of evidence.

However, the trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea
Perez for want of a formality in its execution. 
The petitioner filed a motion for reconsideration of the order denying the probate of the will.

Subsequently, the new Judge, Avelino S. Rosal, the respondent in this case, denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of
the petitioner's failure to comply with the order requiring him to submit the names of the intestate heirs and their addresses.

Hence, the petition.

ISSUE:
WON Article 805 of the Civil Code requires that the testatrix and all the three instrumental and attesting witnesses sign  at the end  of the will and in
the presence of the testatrix and of one another to constitute the validity of the formal will.

HELD:
Yes.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name
written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order
to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of
Identification of such paper as the will which was executed by the testator. 

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully
satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of
the testatrix but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the
authenticity of the will is not assailed.

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists
in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with
sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the
testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will".

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left
margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.
 
10. TESTATE ESTATE OF ABADA vs. ABAJA
G. R. no. 147145 31 January 2005
Carpio, J.:

FACTS:
Abada and his wife Toray died without legitimate children. Abaja, filed with CFI of Negros Occidental a petition for probate of
the will of Abada. The latter allegedly named as his testamentary heirs his natural children, Eulogio Abaja and Rosario Cordova.
(respondent Abaja was the son of Eulogio)

One Caponong opposed the position on the ground that Abaja left no will when he died and if such was really executed by him
it should be disallowed for the following reasons: (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 pressure and influence on the part of
the beneficiaries. Citing the same grounds invoked by Caponong, the alleged intestate heirs of Abada, Joel Abada et. al. also
opposed the petition. The oppositors are the nephews, nieces and grandchildren of Abada and Toray.

Respondent Abaja filed another petition for the probate will of Toray. Caponong and Joel Abada et. al opposed the petition on
the same grounds. Caponong likewise filed a petition praying for the issuance in his name of letters of administration of the
intestate estate of Abada and Toray.

RTC admitted the probate will of Toray since the oppositors did not file any motion for reconsideration, the order allowing the
probate of Toray’s will became final and executory. The court also assigned one Caponong-Noble as special administratix of the
estate of Abada and Toray. Caponong – Noble moved for the dismissal of the petition for the probate will of Abada which was
denied by the Court.

During the proceeding, the judge found out that the matter on hand was already submitted for decision by another judge
admitting the probate will of abada. Since proper notices to the heirs has been complied with as well as other requirements, the
judge ruled in favor of the validity of the probate will.

RTC ruled only on the issue raised by the oppositors in their motions to dismiss the petition for probate that is whether the will
of Abada has an attestation clause as required by law. It held that the failure of the oppositors to raise any other matter
forecloses all other issues. Caponong-Noble filed a notice of appeal. CA affirmed RTC’s decision.

ISSUE:
Whether or not the CA ruled in sustaining the RTC admitting the probate will of Abada.

HELD:
No, CA is correct.

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.

This Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code.

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. A will,
therefore, should not be rejected where its attestation clause serves the purpose of the law. x x x

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:

The 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.

The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures appearing on the will itself and after
the attestation clause could only mean that: (1) Abada subscribed to and professed before the three witnesses that the
document was his last will, and (2) Abada signed the will and the left margin of each page of the will in the presence of
these three witnesses.

Finally, Caponong-Noble alleges that the attestation clause 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.

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.
11. LETICIA VALMONTE ORTEGA vs. JOSEFINA C. VALMONTE
G.R. NO. 157451, December 16, 2005 PANGANIBAN, J.

Facts of the Case: Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 1983
but acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause, and
was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The second page
contains the continuation of the attestation clause and the acknowledgment, and was signed by the witnesses at the end of the attestation clause
and again on the left hand margin. The allowance to probate of this will was opposed by Leticia on the grounds that testator was mentally
incapable to make a will at the time of the alleged execution he being in an advance sate of senility and the signature of Placido Valmonte was
procured by fraud.

Issue of the Case: Whether the will can be allowed for probate.

Ruling of the Court: Article 839 of the Civil Code states the instances when a will may be disallowed. 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. In determining the
capacity of the testator to make a will, the Civil Code gives the following guidelines in Articles 798-800. It must be noted that despite his advanced
age, testator 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. There being no showing of fraud in its
execution, intent in its disposition becomes irrelevant.

12. In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO vs. HON.
RAMON G. GAVIOLA, JR., Presiding
Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court,
First Division (Civil Cases), and BAYANI
MA. RINO
G.R. No. 74695 September 14, 1993

FACTS: 
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate
son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial
Court of sta. Cruz, Laguna.

The testator did not read the final draft of the will himself, instead, private respondent, as the lawyer who drafted the eight-page document, read
the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading
with their own respective copies previously furnished them.
On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa 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. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally
read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental
witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor
with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.

Petitioner filed an Opposition on the following grounds among others:

a. That the will sought to be probated was not executed and attested as required by law;

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from
which an appeal was made to respondent court. The oppositor claimed that the deceased was blind within the meaning of the law at the time his
"Huling Habilin" and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings:

a. That Brigido Alvarado was not blind at the time his last will and codicil were executed;
b. That assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the
testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the instruments.

The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of
making known to the testator the contents of the drafted will was served.

ISSUE: 
WON the reading requirement of the notarial will and codicil of Art. 808 of the Civil Code was substantially complied by reading the documents to
the testator

HELD:
YES. Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the
fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," "defective," or "blurred" vision making it
necessary for private respondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez provides an insight into the scope of the term "blindness" as used in Art. 808, to wit:

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 . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable
of reading their will(s)."

Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term
"blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will
and codicil did so conformably with his instructions.

Private respondent insists that there was substantial compliance and that the single reading suffices for purposes of the law. We sustain private
respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and
trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege.

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and
the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of
the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling
Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed
wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the
draft.