Art. 804. Every will must be in writing and executed in a language or dialect known to the testator.

1. Suroza vs. Honrado

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

NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONRADO of the Court of First
Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

FACTS: This is an administrative case against respondent Judge Honrado 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 which is probably also a forged will. Marcelina supposedly executed a notarial will which is in
English and thumb marked by her. In the said will, Marcelina transferred all her estate to her supposed
granddaughter Marilyn. Marina, filed a petition for the probate of Marcelina's alleged will. The case was
assigned to Judge Honrado. Judge Honrado appointed Marina as administratrix, issued orders directing
the banks to allow Marina to withdraw from the savings accounts of Marcelina. Judge Honrado issued
another order instructing a deputy sheriff to eject the occupants of the testatrix's house, among whom
was Nenita. Nenita and the other occupants of the decedent's house filed in the said proceeding 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 Marcelina's granddaughter. 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 Marcelina's supposed will wherein Marilyn was the instituted heiress.

ISSUE: W/N a disciplinary action be taken against Judge Honrado 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?

HELD: Yes, the will written in English says that it was in a language understood and known to the
testatrix, but also states that it was “translated into the Filipino language,” the probate judge should
have readily perceived that the testatrix is illiterate and 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. Thus, a will written in
English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil.
660).

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the Office of
the Clerk of Court.

2. Payad vs. Tolentino

G.R. No. 42258           September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant, vs. AQUILINA
TOLENTINO, oppositor-appellant.

FACTS: Petitioner Victorio Payad filed a petition for the probate of the will of the decedent Leoncia
Tolentino. This was opposed by Aquilina Tolentino, averring that said Will was made only after the death
of the testatrix. The lower court denied the probate of the will on the ground that the attestation clause
was not in conformity with the requirements of the law since it was not stated therein that the testatrix
caused Atty. Almario to write her name at her express direction. Hence, this petition.

ISSUE: W/N it is necessary in the attestation clause that the testatrix caused Atty. Almario to write her
name at her express direction?

HELD: No, Attorney Almario did not sign for the testatrix. The evidence of record establishes the fact the
Leoncia Tolentino, assisted by Attorney Almario, placed her thumb mark on each and every page of the
questioned will and that said attorney merely wrote her name to indicate the place where she placed
said thumb mark. “A statute requiring a will to be ‘signed’ is satisfied if the signature is made by the
testator’s mark.” It is clear, therefore, that it was not necessary that the attestation clause in question
should state that the testatrix requested Attorney Almario to sign her name inasmuch as the testatrix
signed the will in question in accordance with law.

3. Garcia vs. Lacuesta

G.R. No. L-4067            November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULIANA
LACUESTA, ET AL., respondents.

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: W/N the will should be allowed despite the defect of the attestation clause since the testator had
placed a cross mark himself as his signature?

HELD: No. The attestation clause is fatally defective for failing to state that Mercado directed Javier to
write the testator’s name under his express direction. Petitioner’s argument that such recital is
unnecessary because the testator signed the will himself using a cross mark which should be considered
the same as a thumb-mark (which has been held sufficient in past cases) is not acceptable. A cross mark
is not the same as a thumb mark, because the cross mark does not have the same trustworthiness of a
thumb mark.

4. Icasiano vs. Icasiano

G.R. No. L-18979             June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE. CELSO
ICASIANO, petitioner-appellee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
appellants.

FACTS: Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his
appointment as executor thereof. It was alleged that Josefa Villacorte executed a will in Tagalog, and
through the help of her lawyer, it was prepared in duplicates, an original and a carbon copy.

On the day that it was subscribed and attested, the lawyer only brought the original copy of the will
while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign one of the
pages in the original copy but admitted he may have lifted 2 pages simultaneously instead when he
signed the will. Nevertheless, he affirmed that the will was signed by the testator and other witnesses in
his presence.

ISSUE: W/N the failure of one of the subscribing witnesses to affix his signature to a page is sufficient to
deny probate of the will?

HELD: No, the failure to sign was entirely through pure oversight or mere inadvertence. Since the
duplicated bore the required signatures, this proves that the omission was not intentional. 

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. 

5. Cruz vs. Villasor

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

FACTS: The CFI of Cebu allowed the probate of Valente Z. Cruz’s last will and testament. His surviving
spouse, Agapita Cruz, opposed the allowance of the will alleging that it was executed through fraud,
deceit, misrepresentation and undue influence; and that the said instrument was executed without the
testator having been fully informed of the content thereof. Agapita also alleged that the will was not
executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring
the testator and the witnesses to acknowledge the will before a notary public.

On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the
will, following the reasoning of the trial court, maintains that there is substantial compliance with the
legal requirement of having at least three attesting witnesses even if the notary public acted as one of
them.

Notwithstanding her objection, the Court allowed the probate of the said last will and testament. Hence,
this appeal.
ISSUE: W/N the supposed last will and testament of Valente Z. Cruz was executed in accordance with
law?

HELD: No, the last will and testament in question was not executed in accordance with law. The notary
public before whom the will was acknowledged cannot be considered as the third instrumental witness
since he cannot acknowledge before himself his having signed the will. To acknowledge before means to
avow; to own as genuine, to assent, to admit; and "before" means in front or preceding in space or
ahead of. 

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness
to the executive of the document he has notarized. There are others holding that his signing merely as
notary in a will nonetheless makes him a witness thereon. But these authorities do not serve the
purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public
and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses.

Here, the notary public acted not only as attesting witness but also acknowledging witness, a situation
not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the will or file another with the office of the Clerk
of Court. [Emphasis supplied]

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged.

6. Garcia vs. Vasquez

G.R. No. L-26808               March 28, 1969

REV. FATHER LUCIO V. GARCIA, petitioner, vs. HON. CONRADO M. VASQUEZ, respondent.

FACTS: Gliceria Avelino del Rosario died unmarried, leaving no descendants, ascendants, brother or
sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate
consisting mostly of real properties. During her lifetime she executed two wills. Consuelo S. Gonzales
Vda. de Precilla, a niece of the deceased, petitioned the Court of First Instance for probate of the alleged
last will and testament of Gliceria A. del Rosario executed on 1960 and her appointment as special
administratrix of the latter’s estate. The petition was approved by the court. Oppositors now question
the probate and the validity of the will alleging that the eye sight of Gliceria was so poor and defective
that she could not have read the provisions of the will.

ISSUE: W/N the will in 1960 was properly executed?

HELD: No, the provision of Article 808 is mandatory. The testatrix was like a blind testator, and the due
execution of her will would have required observance of Article 808. The rationale behind the
requirement of reading the will to the testator if he is blind or incapable of reading the will himself, 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. Further, there was proof given by the testimony of the doctor that the
deceased could not read at near distances because of cataracts. (Testatrix’s vision was mainly for
viewing distant objects and not for reading print.) Since there is no proof that it was read to the
deceased twice, the will was not duly executed.

7. Alvarado vs. Gaviola

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR
ALVARADO, petitioner, 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, respondents.

FACTS: In 1977, Brigido Alvarado executed a notarial will entitled “Huling Habilin” wherein he
disinherited an illegitimate son, petitioner Cesar Alvarado, and expressly revoked a previously executed
holographic will. According to private respondent Rino, he was present when the said notarial will was
executed, together with three instrumental witnesses and the notary public, where the testator did not
read the will himself since he was suffering from glaucoma. Rino, a lawyer, drafted the eight-page
document and read the same aloud before the testator, the three instrumental witnesses and the
notary public, the latter four following the reading with their own respective copies previously furnished
them. When the notarial will was submitted to the court for probate, Cesar Alvarado filed his opposition
as he said that the will was not executed and attested as required by law.

ISSUE: W/N the notarial will of Brigido Alvarado should be admitted to probate despite allegations of
defects in the execution and attestation thereof as testator was allegedly blind at the time of execution
and the double-reading requirement under Art. 808 of the NCC was not complied with?

HELD: Yes. Although there should be strict compliance with the substantial requirements of law in order
to insure the authenticity of the will, the formal imperfections should be brushed aside when they do
not affect its purpose and which, when taken into account, may only defeat the testator’s will.

That Art. 808 was not followed strictly is beyond cavil.

However, in the case at bar, there was substantial compliance where the purpose of the law has been
satisfied: that of making the provisions known to the testator who is blind or incapable of reading the
will himself (as when he is illiterate) and enabling him to object if they do not accord with his wishes.

Rino read the testator’s will and codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions. There is no evidence that the contents of the
will and the codicil were not sufficiently made known and communicated to the testator.

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed and attested in substantial compliance
with all the requirements of Article 805.
8. Caneda vs. CA

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO,
OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA,
MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners, vs. HON. COURT OF APPEALS and
WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents.

FACTS: In 1978, Mateo Caballero, a widower without any children executed a last will and testament at
his residence before 3 witnesses and he was assisted by his lawyer, Atty. Emilio Lumontad. In the will, it
was declared that the testator was leaving by way of legacies and devises his real and personal
properties to several people all of whom do not appear to be related to the testator. Months later,
Mateo Caballero himself filed a case seeking the probate of his last will and testament, but numerous
postponements pushed back the initial hearing of the probate court. In 1980, the testator passed away
before his petition could finally be heard by the probate court.

Subsequently, one of the legatees, Benoni Cabrera, sought his appointment as special administrator of
the testator’s estate.

Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition for intestate proceedings. They also opposed the probate of the testator’s will and the
appointment of a special administrator for his estate.

The petitioners asserted therein that the will in question is null and void for the reason that its
attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to
the will witnessed the testator signing the will in their presence and that they also signed the will and all
the pages thereof in the presence of the testator and of one another.

CA affirmed the probate court’s decision stating that it substantially complies with Article 805. Hence
this appeal.

ISSUE: W/N the attestation clause contained in the last will and testament of the late Mateo Caballero
complies with the requirements of Article 805, in relation to Article 809, of the Civil Code?

HELD: No. It does not comply with the provisions of the law. The attestation clause is a separate
memorandum or record of the facts surrounding the conduct of execution and once signed by the
witnesses it gives affirmation to the fact that compliance with the essential formalities required by law
has been observed. The attestation clause, therefore, provides strong legal guaranties for the due
execution of a will and to insure the authenticity thereof.

The attestation clause does not expressly state therein the circumstance that said witnesses subscribed
their respective signatures to the will in the presence of the testator and of each other.

The phrase, “and he has signed the same and every page thereof, on the space provided for his
signature and on the left hand margin,” obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words” as his last will and testament.”
Clearly lacking is the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another. That the absence of the statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of the will that is here
sought to be probated.

Also, Art. 809 does not apply to the present case because the attestation clause totally omits the fact
that the attesting witnesses signed each and every page of the will in the presence of the testator and of
each other. The defects must be remedied by intrinsic evidence supplied by the will itself which is clearly
lacking in this case.

Article 809 cannot be used to cure the defects of the will when it does not pertain to the form or
language of the will. This is because there is no substantial compliance with Article 805.