CASE DIGEST: CANEDA V.
CA (222 SCRA 781) On the other hand, one of the attesting witnesses and the notary public testified
Published by paul on July 1, 2013 | Leave a response
Caneda v. CA
222 SCRA 781
FACTS:
On December 5, 1978, Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last will and testament at his
residence before 3 witnesses.
He was assisted by his lawyer, Atty. Emilio Lumontad.
In the will, it was declared that the testator was leaving by way of legacies and
devises his real and personal properties to several people all of whom do not
appear to be related to the testator.
4 months later, Mateo Caballero himself filed a case seeking the probate of his
last will and testament, but numerous postponements pushed back the initial
hearing of the probate court regarding the will.
On May 29, 1980, the testator passed away before his petition could finally be
heard by the probate court.
Thereafter one of the legatees, Benoni Cabrera, sought his appointment as
special administrator of the testators 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 testators will and the appointment of a special administrator for
his estate.
Benoni Cabrera died and was replaced by William Cabrera as special
administrator and gave an order that the testate proceedings for the probate of
the will had to be heard and resolved first.
In the course of the proceedings, petitioners opposed to the allowance of the
testators will on the ground that on the alleged date of its execution, the
testator was already in poor state of health such that he could not have possibly
executed the same. Also the genuineness of the signature of the testator is in
doubt.
that the testator executed the will in question in their presence while he was of
sound and disposing mind and that the testator was in good health and was not
unduly influenced in any way in the execution of his will.
Probate court then rendered a decision declaring the will in question as the last
will and testament of the late Mateo Caballero.
CA affirmed the probate courts decision stating that it substantially complies
with Article 805. Hence this appeal.
ISSUE:
W/N the attestation clause in the will of the testator is fatally defective or can
be cured under the art. 809.
HELD:
No. It does not comply with the provisions of the law.
Ordinary or attested wills are governed by Arts. 804 to 809. The will must be
acknowledged before a notary public by the testator and the attesting
witnesses. The attestation clause need not be written in a language known to
the testator or even to the attesting witnesses.
It is a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed.
The attestation clause, therefore, provides strong legal guaranties for the due
execution of a will and to insure the authenticity thereof.
It is contended by petitioners that the attestation clause in the will failed to
specifically state the fact that the attesting witnesses witnessed the testator
sign the will and all its pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the presence of the testator
and of each other. And the Court agrees.
The attestation clause does not expressly state therein the circumstance that
said witnesses subscribed their respective signatures to the will in the presence
of the testator and of each other.
The phrase, and he has signed the same and every page thereof, on the space
provided for his signature and on the left hand margin, obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words as his last will and testament.
Clearly lacking is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another. That the
absence of the statement required by law is a fatal defect or imperfection which
must necessarily result in the disallowance of the will that is here sought to be
probated.
Also, Art. 809 does not apply to the present case because the attestation clause
totally omits the fact that the attesting witnesses signed each and every page of
the will in the presence of the testator and of each other. The defect in this case
is not only with respect to the form or the language of the attestation clause.
The defects must be remedied by intrinsic evidence supplied by the will itself
which is clearly lacking in this case.
Therefore, the probate of the will is set aside and the case for the intestate
proceedings shall be revived.
Article 809 cannot be used to cure the defects of the will when it does not
pertain to the form or language of the will. This is because there is not
substantial compliance with Article 805.
Apolonio Taboada vs Avelino
Rosal
118 SCRA 195 Succession Substantial Compliance
Dorotea Perez left a will. The will has two pages. On the first page, which contains
the entire testamentary dispositions, were the signatures of the three instrumental
witnesses and that of Dorotea Perez. The signatures of the three instrumental
witnesses were on the left margin while Perez signature was on the bottom. On
the second page, which contains the attestation clause and the
acknowledgement, were the signatures of the three attesting witnesses and that
of Dorotea Perez. The attestation clause failed to state the number of pages used
in the will. Taboada petitioned for the admission to probate of the said will. The
judge who handled the petition was Judge Ramon Pamatian. He denied the
petition. Taboada filed a motion for reconsideration but Pamatian was not able to
act on it because he was transferred to another jurisdiction. The case was
inherited by Judge Rosal who also denied the MFR on the grounds that a) that
the testator and the instrumental witnesses did not all sign on the left margin of
the page as prescribed by law; that the testator and the witnesses should have
placed their signature in the same place b) that the attestation clause failed to
state the number of pages used in writing the will this, according to Judge Rosal
violated the requirement that the attestation clause shall state the number of
pages or sheets upon which the will is written, which requirement has been held
to be mandatory as an effective safeguard against the possibility of interpolation
or omission of some of the pages of the will to the prejudice of the heirs to whom
the property is intended to be bequeathed.
ISSUE: Whether or not the will should be admitted to probate.
HELD: Yes. The law must be interpreted liberally.
Further, there is substantial compliance with the law. It would be absurd that the
legislature intended to place so heavy an import on the space or particular
location where the signatures are to be found as long as this space or particular
location wherein the signatures are found is consistent with good faith.
The failure to include in the attestation clause of the number of pages used in
writing the will would have been a fatal defect. But then again, the matter should
be approached liberally. There were only two pages in the will left by Perez. The
first page contains the entirety of the testamentary dispositions and signed by the
testatrix at the end or at the bottom while the instrumental witnesses signed at
the left margin. The other page which is marked as Pagina dos comprises the
attestation clause and the acknowledgment. Further, the acknowledgment itself
states that This Last Will and Testament consists of two pages including this
page.
 Moreover, the cross appearing on the will is not the usual signature of Antero
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO Mercado nor is it even one of the ways by which he signed his name. After mature
GARCIA, petitioner, reflection, the Court is not prepared to liken the mere sign of the cross to a
vs. thumbmark, and the reason is obvious. The cross cannot and does not have the
JULIANA LACUESTA, ET AL., respondents trustworthiness of a thumbmark. Thus, the cross cannot be considered a valid
signature.
90 Phil 489
November 29, 1951

Facts: Antero Mercado left a will dated January 3, 1943. The will is written in the
Ilocano dialect which is spoken and understood by the testator. The will also
contained an attestation clause which is signed by three witnesses. The attestation
clause states:
We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page three
the continuation of this attestation clause; this will is written in Ilocano dialect which
is spoken and understood by the testator, and it bears the corresponding number in
letter which compose of three pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.

The will appears to have been signed by Atty. Florentino Javier who wrote the name
of Antero Mercado, followed below by "A ruego del testador" and the name of
Florentino Javier. Antero Mercado is alleged also to have written a cross immediately
after his name.

Issue: Whether or not the attestation clause in the will is valid.

Ruling: No. 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. When the
testator expressly caused another to sign the formers name, this fact must be recited
in the attestation clause. Otherwise, the will is fatally defective.