Case Title: Danilo Aluad, Leonora Aluad, Divina Aluad, Prospero Aluad, And Connie Aluad Vs

Zenaido Aluad, G.R. No. 176943, October 17, 2008

Principle: The donation being then mortis causa, the formalities of a will should have been
observed.

Matilde and Crispin are spouses who were childless. They raised Maria and Zenaido. Crispin
owned six (6) lots identified as lot a, b, c, d, e, and f. When Crispin died, Matilde adjudicated the
lots to herself. She then executed a Deed of Donation upon Maria covering the 6 lot. The deed of
donation provides that the donation shall take effect upon the death of Matilde, and that if Maria
predecease Matilde, the donation shall be void. Also, Matilde reserves her right to alienate or
dispose of the subject lots. Matilde then sold to Zenaido lot a. Matilde thereafter executed a last
will and testament devising lot b, c, d, and e to Maria and lot f to Zenaido. Upon the death of
Maria, his heirs filed a petition for recovery of lot a and f against Zenaido. The heirs of Maria
alleges that they inherited the lot. Is the contention of the heirs correct?

SUGGESTED ANSWER
NO, the contention of the heirs of Maria is not correct. The law provides in donation mortis
causa, the formalities of the will shall be observed. Article 805 of the New Civil Code Provides
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 shall 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 witnesses, it shall be

interpreted to them. (n)

In the case at bar, the donation was a donation in mortis causa, hence, must observed the
formalities of the will but it did not as it was witnessed by only two, not three or more witnesses.
Further, the witnesses did not even sign the attestation clause the execution of which clause is a
requirement separate from the subscription of the will and the affixing of signatures on the
left-hand margins of the pages of the will. Furthermore, the witnesses did not acknowledge the
will before the notary public, which is not in accordance with the requirement of Article 806 of
the Civil Code that every will must be acknowledged before a notary public by the testator and
the witnesses. Thus, the contention of Maria’s heirs are not correct.