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Baltazar vs.

Laxa

BALTAZAR vs. LAXA | G.R. No. 174489 | April 11, 2012 | Del Castillo, J.:
FACTS: Paciencia was a 78 y/o spinster when she made her last will and testament in the Pampango dialect
on Sept. 13, 1981. The will, executed in the house of retired Judge Limpin, was read to Paciencia twice. After
which, Paciencia expressed in the presence of the instrumental witnesses that the document is her last will
and testament. She thereafter affixed her signature at the end of the said document on page 3 and then on the
left margin of pages 1, 2 and 4 thereof.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo
Laxa and his wife Corazon Laza and their children Luna and Katherine. Lorenzo is Paciencia’s nephew whom
she treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as his own mother.

Six days after the execution of the Will (Sept. 19, 1981), Paciencia left for USA. There, she resided with
Lorenzo and his family until her death on Jan. 4, 1996. In the interim, the Will remained in the custody of
Judge Limpin.

More than 4 years after the death of Paciencia or on Apr. 27, 2000, Lorenzo filed a petition with the RTC of
Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of Administration in
his favor.

On Jun 23, 2000 one of petitioners, Antonio Baltazar filed an opposition to Lorenzo’s petition. Antonio
averred that the properties subject of Paciencia’s Will belong to Nicomeda Mangalindan, his predecessor-in-
interest; hence, Paciencia had no right to bequeath them to Lorenzo. Also, one of the petitioners, Rosie Mateo
testified that Paciencia is in the state of being “mangulyan” or forgetful making her unfit for executing a will
and that the execution of the will had been procured by undue and improper pressure and influence.

Petitioners also opposed the issuance of the Letters of Administration in Lorenzo’s favor arguing that Lorenzo
was disqualified to be appointed as such, he being a citizen and resident of the USA. Petitioners prayed that
Letters of Administration be instead issued in favor of Antonio.

RTC denies the petition for probate of the will and concluded that when Paciencia signed the will, she was no
longer possessed of the sufficient reason or strength of mind to have the testamentary capacity. On appeal, CA
reversed the decision of the RTC and granted the probate of the will. The petitioner went up to SC for a
petition for review on Certiorari.

ISSUE: Whether the authenticity and due execution of the will was sufficiently established to warrant its
allowance for probate.

HELD: Yes. A careful examination of the face of the Will shows faithful compliance with the formalities laid
down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and the notary public, are
all present and evident on the Will. Further, the attestation clause explicitly states the critical requirement
that the testatrix and her instrumental witnesses attested and subscribed to the Will in the presence of the
testator and of one another. In fact, even the petitioners acceded that the signature of Paciencia in the Will
may be authentic although they question of her state of mind when she signed the same as well as the
voluntary nature of said act.
The burden to prove that Paciencia was of unsound mind at the time of the execution of the will lies on the
shoulders of the petitioners. The SC agree with the position of the CA that the state of being forgetful does not
necessarily make a person mentally unsound so as to render him unfit to execute a Will. Forgetfulness is not
equivalent to being of unsound mind. Besides, Art. 799 of the NCC states: “To be of unsound mind, it is not
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necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered 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.”

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Abangan v. Abangan, 40 Phil 476, AVANCENA

On September 19, 1917, CFI of Cebu admitted to probate Ana Abangan’s will executed July, 1916. From this
decision the opponents appealed.

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The will consists of 2 sheets. The first contains all the disposition of the testatrix, duly signed at the bottom by
Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses. The following
sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses.
Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by
letters. These omissions, according to appellants’ contention, are defects whereby the probate of the will
should have been denied.

Whether or not the will was duly admitted to probate.

YES. In requiring that each and every sheet of the will be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645 evidently has for its object the avoidance of substitution
of any of said sheets which may change the disposition of the testatrix. But when these dispositions are wholly
written on only one sheet (as in the instant case) signed at the bottom by the testator and three witnesses,
their signatures on the left margin of said sheet are not anymore necessary as such will be purposeless.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper
part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has
been removed. But, when all the dispositive parts of a will are written on one sheet only, the object of the
statute disappears because the removal of this single sheet, although unnumbered, cannot be hidden.

In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at
the bottom by the testator and three witnesses and the second contains only the attestation clause and is
signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the
laws on this subject should be interpreted in such a way as to attain these primordal ends. But, on the other
hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and
frustative of the testator’s last will, must be disregarded.

Nenita de Vera SUROZA vs. Judge Reynaldo P. HONRADO and Evangeline YUIPCO
A.M. No. 2026-CFI, December 19, 1981

Mauro Suroza, a corporal in the 45th Infantry of the US Army (Philippine Scouts) married Marcelina Salvador
but they were childless. However, they reared a boy named Agapito who used the surname Suroza and who
considred them as parents as shown in his marriage contract with Nenita de Vera. When Mauro died,
Marcelina, as a veteran’s widow, became a pensioner of the Federal Government. Agapito and Nenita begot a
child named Lilia and afterwards, Agapito also became a soldier. However, he was disabled and his wife was
appointed as his guardian when he was declared an incompetent. In connection to this, a woman named
Arsenia de la Cruz (apparently a girlfriend of Agapito) wanted also to be his guardian however the court
confirmed Nenita’s appointment as guardian of Agapito.
The spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who was delivered to
Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter.
Marilyn used the surname Suroza and stayed with Marcelina but was not legally adopted by Agapito.

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Marcelina, being a veteran’s widow accumulated some cash in two banks. She executed a notarial will which is
in English and was thumbmarked by her for she was illiterate. In that will, Marcelina bequeathed all her estate
to Marilyn. After her death, Marina Paje (alleged to be a laundrywoman of Marcelina and the executrix in her
will) filed a petition for probate of Marcelina’s alleged will. As there was no opposition, Judge Honrado
appointed Marina as administratix and subsequently, issued two orders directing the two banks to allow
Marina to withdraw from the savings of Marcelina and Marilyn Suroza and requiring the custodian of the
passbooks to deliver them to Marina. Upon motion of Marina, Judge Honrado issued another order
instructing the sheriff to eject the occupants of the testatrix’ house among whom was Nenita and to place
Marina in possession thereof.
Nenita was then alerted to the existence of the testamentary proceeding hence, she and other occupants filed a
motion to set aside the order ejecting them, alleging 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. Later, they questioned the probate court’s jurisdiction
to issue the ejectment order. In spite of such fact, Judge Honrado issued on order probating Marcelina’s
supposed will wherein Marilyn was the instituted heiress. Nenita filed in the testate case an omnibus petition
“to set aside proceedings, admit opposition with counter petition for administration and preliminary
injunction” reiterating that Marilyn was a stranger to Marcelina; that the will was not duly executed and
attested; and that the thumbmarks of the testatrix were procured by fraud or trick.
Further, that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina
was not qualified to act as executrix. Not contented with her motions, Nenita filed an opposition to the
probate of the will and a counter-petition which was however, dismissed. Instead of appealing, Nenita filed a
case to annul the probate proceedings which was also dismissed. Hence, this complaint.

Whether or not a disciplinary action should be taken against respondent judge for having admitted a will,
which on its face is void.

Disciplinary action should be taken against respondent judge for his improper disposition of the testate case
which might have resulted in a miscarriage of justice because the decedent’s legal heirs and not the instituted
heiress in the void will should have inherited the decedent’s estate. Inefficiency implies negligence,
incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed in the
performance of his duties that diligence, prudence and circumspection which the law requires in the rendition
of any public service.

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.

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Matias v. Salud Digest
Matias vs. Salud
G.R. L-10907 June 29, 1957
Ponente: Concepcion, J.

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Facts:
1. This case is an appeal from a CFI Cavite order denying the probate of the will of Gabina Raquel. The document
consist of 3 pages and it seems that after the attestation clause, there appears the siganture of the testatrix
'Gabina Raquel', alongside is a smudged in violet ink claimed by the proponents as the thumbmark allegedly
affixed by the tetratrix. On the third page at the end of the attestation clause appears signatures on the left
margin of each page, and also on the upper part of each left margin appears the same violet ink smudge
accompanied by the written words 'Gabina Raquel' with 'by Lourdes Samonte' underneath it.
2. The proponent's evidence is to the effect that the decedent allegedly instructed Atty. Agbunag to drat her will
and brought to her on January 1950. With all the witnesses with her and the lawyer, the decedent affixed her
thumbmark at the foot of the document and the left margin of each page. It was also alleged that she attempted
to sign using a sign pen but was only able to do so on the lower half of page 2 due to the pain in her right
shoulder. The lawyer, seeing Gabina unable to proceed instructed Lourdes Samonte to write 'Gabina Raquel by
Lourdes Samonte' next to each thumbmark, after which the witnesses signed at the foot of the attestation clause
and the left hand margin of each page.
3. The probate was opposed by Basilia Salud, the niece of the decedent.
4. The CFI of cavite denied the probate on the ground that the attestation clause did not state that the testatrix
and the witnesses signed each and every page nor did it express that Lourdes was specially directed to sign after
the testatrix.
Issue: Whether or not the thumbprint was sufficient compliance with the law despite the absence of a
description of such in the attestation clause
HELD: YES
The absence of the description on the attestation clause that another person wrote the testatrix' name at her
request is not a fatal defect, The legal requirement only ask that it be signed by the testator, a requirement
satisfied by a thumbprint or other mark affixed by him.
As to the issue on the clarity of the ridge impression, it is held to be dependent on the aleatory circumstances.
Where a testator employs an unfamiliar way of signing and that both the attestation clause and the will are silent
on the matter, such silence is a factor to be considered against the authenticity of the testament. However, the
failure to describe the signature itself alone is not sufficient to refuse probate when evidence fully satisfied that
the will was executed and witnessed in accordance with law.

In the Matter of the Will of Antero Mercado, deceased, Rosario GARCIA, vs. Juliana LACUESTA, et al
G.R. No. L-4067, November 29, 1951

A will was executed by Antero Mercado wherein it appears that it was signed by Atty. Florentino Javiwe who
wrote the name of Antero. The testator was alleged to have written a cross immediately after his name. The
Court of First Instance found that the will was valid but the Court of Appeals reversed the lower court’s
decision holding that the attestation clause failed: 1) to certify that the will was signed on all the left margins
of the three pages and at the end of the will by Atty. Javier at the express request of the testator in the
presence of the testator and each and every one of the witnesses; 2) to certify that after the signing of the
name of the testator by Atty. Javier at the former’s request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof 3) to certify
that the witnesses signed the will in all the pages thereon in the presence of the testator and of each other.
Hence, this appeal.

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Whether or not the attestation clause is valid.

The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Javier to write
the testator’s name under his express direction, as required by section 168 of the Code of Civil Procedure. It is
not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one
of the ways by which he signed his name. After mature reflection, the SC is not prepared to liken the mere sign
of the cross to a thumbmark and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.

Noble v. Abaja
450 SCRA 265

FACTS: The case is about the probate of the will of Alipio Abada (Not respondent Abaja).
Petitioner BelindaNoble is the administratrix of the estate of Abada. Respondent Alipio Abaja filed a petition for
the probate of Abada’s will. Petitioner Noble moved for dismissal of the petition for probate.

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.

ISSUE:Should it be expressly stated in the will that it (the will) was in a language known by the testator?

HELD:No. There is no statutory requirement to state in the will itself that the testator knew the language
or dialect used in the will.[25] This is a matter that a party may establish by proof aliunde. In this case, Alipio
testified that Abada used to gather Spanish-speaking people in their place. In these gatherings, Abada and
his companions would talk in the Spanish language. This sufficiently proves that Abada speaks the Spanish
language.

Azuela v. Court of Appeals G.R. No. 122880 (2006)

FACTS: 1. Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo.
However, this was opposed by Geralda Castillo, who was the attorney-in-fact of “the 12 legitimate heirs” of the
decedent. According to her, the will was forged, and imbued with several fatal defects. Particularly, the issue
relevant in this subject is that the will was not properly acknowledged. The notary public, Petronio Y. Bautista,
only wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.”

ISSUE: Whether or not the will is fatally defective as it was not properly acknowledged before a notary public
by the testator and the witnesses as required by Article 806 of the Civil Code.

RULING: Yes, the will is fatally defective. By no manner of contemplation can those words be construed as an
acknowledgment.

An acknowledgement 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 deed. It involves an extra step undertaken whereby the signore 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.

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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.

Barut v. Cabacungan
21 P 461

FACTS:

Barut applied for the probate of the will of deceased, Maria Salomon. The testatrix stated in the will that being
unable to read or write, the will was read to her by Ciriaco Concepcion and Timotea Inoselda and that she had
instructed Severo Agayan to sign her name to it as testatrix. The probate was contested by a number of the
relatives of the deceased on various grounds.

The probate court found that the will was not entitled to probate because “the handwriting of the person who it
is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of
one of the other witnesses to the will than to the person whose handwriting it was alleged to be” (i.e. The probate
court denied probate because the signature seemed to not have been by Severo Agayan but by another witness).

ISSUE:

Was the dissimilarity in handwriting sufficient to deny probate of the will?

HELD:

No. The SC found that the mere dissimilarity in writing is sufficient to overcome the uncontradicted testimony
of all the witnesses that the signature of the testatrix was written by Severo Agayan. It is also immaterial who
writes the name of the testatrix provided it is written at her request and in her presence and in the presence of
all the witnesses to the execution of the will.

Based on Section 618 of the Code of Civil Procedure, it is clear that with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing
is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of 3
witnesses and that they attested and subscribed it in her presence and in the presence of each other. It may be
wise that the one who signs the testator’s name signs also his own; but that is not essential to the validity of the
will.

The court also held that the 3 cases cited by the lower court was not applicable. In those cases, the person
who signed the will for the testator wrote his own name instead of the testator’s, so that the testator’s
name nowhere appeared in the will, and were thus wills not duly executed.

Lucio Balonan vs Eusebia Abellana


09 Phil 369 – Succession – Signature of Testator
Anacleta Abellana left a will. In said will, she let a certain Juan Bello sign the will for her. The will consists of
two pages. The first page is signed by Juan Abello and under his name appears typewritten “Por la testadora
Anacleta Abellana”. On the second page, appears the signature of Juan Bello under whose name appears the
phrase, “Por la Testadora Anacleta Abellana” – this time, the phrase is handwritten.

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ISSUE: Whether or not the signature of Bello appearing above the typewritten phrase “Por la testadora Anacleta
Abellana” comply with the requirements of the law prescribing the manner in which a will shall be executed.
HELD: No. Article 805 of the Civil Code provides that:
“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.”
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said
Abellana herself, or by Juan Abello. There is, therefore, a failure to comply with the express requirement in the
law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his
presence and by his express direction.
Note that the phrase “Por la testadora Anacleta Abellana” was typewritten and above it was the signature of
Abello – so in effect, when Abello only signed his name without writing that he is doing so for Anacleta, he
actually omitted the name of the testatrix. This is a substantial violation of the law and would render the will
invalid.

Beatriz Nera vs Narcisa Rimando


When a certain will was being signed, it was alleged that the testator and some subscribing witnesses were in
the inner room while the other subscribing witnesses were in the outer room. What separates the inner room
from the outer room was a curtain. The trial court ignored this fact in its determination of the case as it ruled
that the determination of this specific fact will not affect the outcome of the case.
ISSUE: What is the true test of the testator’s or the witness’ presence in the signing of a will?
HELD: The Supreme Court emphasized that the true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but whether they might have seen each other
sign, had they chosen to do so, considering their mental and physical condition and position with relation to
each other at the moment of inscription of each signature.
The position of the parties with relation to each other at the moment of the subscription of each signature, must
be such that they may see each other sign if they choose to do so.
The Supreme Court, in this case, determined that all the parties were in the same small room when each other
signed. Hence, they were in each other’s presence (though the facts of the case didn’t elaborate – the SC just
ruled so). The SC ruled that if some of the witnesses were really in the outer room (a fact which was not
established according to the SC) separated by a curtain, then the will is invalid, the attaching of those signatures
under circumstances not being done “in the presence” of the witness in the outer room.

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
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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.”

Icasiano v. Icasiano
11 SCRA 422

FACTS: Celso Icasiano filed a petition for the allowance and admission to probate of the alleged will of Josefa
Villacorte, and for his appointment as executor thereof. Natividad and Enrique Icasiano, a daughter and son of
the testatrix, filed their opposition thereto. During the course of the trial, on 19 March 1959, Celso, started to
present his evidence. But later, on 1 June 1959, he then filed an amended and supplemental petition, alleging
that the decedent had left a will executed in duplicate and with all the legal requirements, and that he was
submitting the duplicate to the court, which he found only on 26 May 1959. Natividad and Enrique filed their
opposition, but the will and its duplicate was admitted to probate by the trial court. Hence, this appeal by the
oppositors.

Oppositors-appellants (Natividad and Enrique) in turn introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate are not genuine, nor were they written or affixed on the same occasion
as the original, and further aver that granting that the documents were genuine, they were executed through
mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the execution of the will and the provisions and dispositions
thereof, whereby proponents- appellees stand to profit from properties held by them as attorneys- in-fact of the
deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for
other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their
share in the portion of free disposal.

ISSUE: Was the trial court correct in admitting the will and its duplicate to probate given the allegations of
forgery of the testator’s signature, or that the will was executed under circumstances constituting fraud and
undue influence and pressure?

(Not raised by the appellants in the case but discussed by the Court and in Sir’s book) Is the failure of one of the
witnesses to sign a page of the will fatal to its validity?

HELD: The Supreme Court dismissed the appeal, holding that both the will and its duplicate are valid in all
respects.
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On the allegations of forgery, fraud and undue influence:

The Court is satisfied that all the requisites for the validity of a will have been complied with. The opinion of a
handwriting expert trying to prove forgery of the testatrix’s signature failed to convince the Court, not only
because it is directly contradicted by another expert but principally because of the paucity of the standards used
by him (only three other signatures), considering the advanced age of the testatrix, the evident variability of her
signature, and the effect of writing fatigue.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not
appear reliable, considering that standard and challenged writings were affixed to different kinds of paper, with
different surfaces and reflecting power. On the whole, the testimony of the oppositor’s expert is insufficient to
overcome that of the notary and the two instrumental witnesses as to the will’s execution, which were presented
by Celso during the trial.

Nor is there adequate evidence of fraud or undue influence. The fact that some heirs are more favored than
others is proof of neither. Diversity of apportionment is the usual reason for making a testament; otherwise, the
decedent might as well die intestate. The testamentary disposition that the heirs should not inquire into other
property and that they should respect the distribution made in the will, under penalty of forfeiture of their
shares in the free part, do not suffice to prove fraud or undue influence. They appear motivated by the desire to
prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the
estate being diverted into the hands of non- heirs and speculators. Whether these clauses are valid or not is a
matter to be litigated on another occasion. It is also well to note that fraud and undue influence are mutually
repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.

On the failure of a witness to sign a page in the original, but signed all pages in the duplicate:

The records show that the original of the will consists of five pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page 3
thereof; but the duplicate copy attached to the amended and supplemental petition is signed by the testatrix
and her three attesting witnesses in each and every page.

Witness Atty. Natividad, who testified on his failure to sign page 3 of the original, admits that he may have lifted
two pages instead of one when he signed the same, but affirmed that page 3 was signed in his presence.

The failure 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. Therefore, Atty. Natividad’s failure to sign page 3 of the original through
mere inadvertence does not affect the will’s validity.

Impossibility of substitution of this page is assured not only 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. 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.

This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, 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
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not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure to mark the first page either by letters
or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). 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.

The appellants also argue that since the original of the will is in existence and available, the duplicate is not
entitled to probate. Since they opposed probate of the original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here into a dilemma: if the original is defective and invalid,
then in law there is no other will but the duly signed carbon duplicate, and the same is probatable. If the original
is valid and can be probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate serves to prove that the omission of one signature in the
third page of the original testament was inadvertent and not intentional.

Cagro v. Cagro
92 P 1032

FACTS:

Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent allegedly made a will prior to his death, the
will was probated before the CFI of Samar. However, the oppositors-appellant objected the probate proceeding
alleging that the will is fatally defective because its attestation clause is not signed by the attesting witnesses. It
is undisputed 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.

ISSUE:

W/N the will may be probated even if the signatures of the witnesses do not appear at the bottom of
the attestation clause, and instead, they were placed on the left-hand margin of the page containing the same.

HELD:

No. The position taken by the oppositor-appellant is correct. The attestation clause is ‘a memorandumof 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-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.

Bautista Angelo, J. dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of the law and,
therefore, should be admitted to probate. It appears that the will was signed by the testator and was attested by
three instrumental witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified
not only that the will was signed by the testator in their presence and in the presence of each other but also that
when they did so, the attestation clause was already written thereon. Their testimony has not been contradicted.
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The only objection set up by the oppositors to the validity of the will is the fact that the signatures of
the instrumental witnesses do not appear immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil. 476), this court
said that when the testamentary dispositions “are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case),their signatures on the left margin of said sheet would be
completely purposeless.” In such a case, the court said, the requirement of the signatures on the left hand
margin was not necessary because the purpose of the law — which is to avoid the substitution of any of the
sheets of the will, thereby changing the testator’s dispositions — has already been accomplished. We may say
the same thing in connection with the will under consideration because while the three instrumental witnesses
did not sign immediately by the majority that it may have been only added on a subsequent occasion and not at
the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in
the will when the same was signed.

TUASON, J., dissenting:

I concur in Mr. Justice Bautista’s dissenting opinion and may add that the majority decisionerroneously sets
down as a fact that the attestation clause was not signed when the witnesses’ signatures appear on the left
margin and the real and only question is whether such signatures are legally sufficient. The law on wills does
not provide that the attesting witness should sign the clause at the bottom. In the absence of such provision,
there is no reason why the signatures on the margin are not acceptable

Cruz v. Villasor, G.R. L-32213 November 26, 1973

The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz. However, the
petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit,
misrepresentation, and undue influence. He further alleged that the instrument was executed without the
testator having been informed of its contents and finally, that it was not executed in accordance with law.

One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged. Despite the
objection, the lower court admitted the will to probate on the ground that there is substantial compliance with
the legal requirements of having at least 3 witnesses even if the notary public was one of them.

Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

No. The will is not valid. The notary public cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as
witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and ‘before’ means in front of
or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear
before the other to acknowledge his participation int he making of the will. To permit such situation would be
absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a
function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in
sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in
an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.

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Jose Gabucan vs Judge Luis Manta
In 1977, Judge Luis Manta dismissed a probate proceeding because the notarial will presented in the said case
lacked a documentary stamp. Judge Manta ruled that the lack of of documentary stamp made the will
inadmissible in evidence and as such there is no will and testament to probate.
Jose Gabucan, a party in the said case, thereafter affixed the required documentary stamp and then moved for
reconsideration but the judge refused to reconsider his ruling. Hence, Gabucan filed a petition for mandamus to
compel the judge to admit the notarial will.
ISSUE: Whether or not a notarial will presented in court which originally has no documentary stamp may still
be admitted after the required documentary stamp was affixed.
HELD: Yes. It is true that the law (the [old] Tax Code – now Sec. 201 of R.A. 8424) requires a notarial will to
have a documentary stamp:
SEC. 238. Effect of failure to stamp taxable document. — An instrument, document, or paper which is required
by law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped,
shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used
in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. xxx
Thus, a notarial will without a documentary stamp may not be admitted in evidence. However, once the said
documentary stamp is affixed, then the deficiency is cured and it can now be admitted in evidence. The
documentary stamp may be affixed at the time the taxable document is presented in evidence.

Javellana vs. Ledesma, G.R. No. L-7179

The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Ledesma in July
1953. This testament was deemed executed on May 1950 and May 1952. The contestant was the sister and
nearest surviving relative of the deceased. She appealed from this decision alleging that the will were not
executed in accordance with law.

The testament was executed at the house of the testatrix. One the other hand, the codicil was executed after
the enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a notary public.
Now, the contestant, who happens to be one of the instrumental witnesses asserted that after the codicil was
signed and attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on the same
occasion. Gimotea, however, said that he did not do so, and that the act of signing and sealing was done
afterwards.

One of the allegations was that the certificate of acknowledgement to the codicil was signed somewhere else or
in the office of the notary. The ix and the witnesses at the hospital, was signed and sealed by the notary only
when he brought it in his office.

Whether or not the signing and sealing of the will or codicil in the absence of the testator and witnesses affects
the validity of the will

No. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the testator, the
witnesses and the notary be accomplished in one single act. All that is required is that every will must be
acknowledged before a notary public by the testator and witnesses. The subsequent signing and sealing is not
part of the acknowledgement itself nor of the testamentary act. Their separate execution out of the presence of
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the testator and the witnesses cannot be a violation of the rule that testaments should be completed without
interruption.

BELLA A. GUERRERO v. RESURRECCION A. BIHIS, GR NO. 174144, 2007-04-17


Facts:
On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and respondent
Resurreccion A. Bihis, died at the Metropolitan Hospital
On May 24, 1994, petitioner filed a petition for the probate of the last will and testament of the decedent...
petition alleged the following: petitioner was named as executrix in the decedent's will and she was legally
qualified to act as such; the decedent was a citizen of the Philippines at the time of her death; at the time of the
execution of the will, the testatrix was 79 years... old, of sound and disposing mind, not acting under duress,
fraud or undue influence and was capacitated to dispose of her estate by will.
Respondent opposed her elder sister's petition on the following grounds... will was not executed and attested
as required by law; its attestation clause and acknowledgment did not comply with the requirements of the
law; the signature of the testatrix was procured by fraud and... petitioner and her children procured the will
through undue and improper pressure and influence.
petitioner... special administratrix of the decedent's estate
Respondent opposed petitioner's appointment but subsequently withdrew her opposition
On January 17, 2000, after petitioner presented her evidence, respondent filed a demurrer thereto alleging
that petitioner's evidence failed to establish that the decedent's will complied with Articles 804 and 805... trial
court denied the probate of the will ruling that Article 806 of the Civil Code was not complied with because the
will was "acknowledged" by the testatrix and the witnesses at the testatrix's, residence at No. 40 Kanlaon
Street,... Quezon City before Atty. Macario O. Directo who was a commissioned notary public for and in
Caloocan City... acknowledged by the testatrix and the witnesses at the testatrix's residence in Quezon City
before Atty. Directo and that, at that time, Atty. Directo was a commissioned notary public for and in Caloocan
City.
She, however, asserts that the... fact that the notary public was acting outside his territorial jurisdiction did
not affect the validity of the notarial will.
Issues:
Did the will "acknowledged" by the testatrix and the instrumental witnesses before a notary public acting
outside the place of his commission satisfy the requirement under Article 806 of the Civil Code?
Ruling:
did not.
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.
One of the formalities required by law in connection with the execution of a notarial will is that it must be
acknowledged before a notary public by the testator and the witnesses.
This formal requirement is one of the indispensable requisites for the... validity of a will.
An acknowledgment is the act of one who has executed a deed in going before some competent officer and
declaring it to be his act or deed.[8] In the case of a notarial will, that competent officer is the notary public.
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The acknowledgment of a notarial will coerces the testator and the instrumental witnesses to declare before an
officer of the law, the notary public, that they executed and subscribed to the will as their own free act or
deed.[9] Such declaration is under... oath and under pain of perjury, thus paving the way 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 a certain mindset in making the
testamentary dispositions to the persons instituted as heirs or designated as devisees or legatees in the will.
a notary public... is authorized to perform notarial acts, including the taking of acknowledgments, within that
territorial jurisdiction only. Outside the place of his commission, he is bereft of power to perform any notarial
act; he is not a notary public. Any notarial act outside... the limits of his jurisdiction has no force and effect.
Principles:
a notarial will that is not acknowledged before a notary public by the testator and the instrumental witnesses
is void and cannot be accepted for probate.

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Azuela v. Court of Appeals G.R. No. 122880 (2006)
FACTS:
1. Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo. However, this
was opposed by Geralda Castillo, who was the attorney-in-fact of “the 12 legitimate heirs” of the decedent.
According to her, the will was forged, and imbued with several fatal defects. Particularly, the issue relevant in
this subject is that the will was not properly acknowledged. The notary public, Petronio Y. Bautista, only wrote
“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.”
ISSUE: Whether or not the will is fatally defective as it was not properly acknowledged before a notary public
by the testator and the witnesses as required by Article 806 of the Civil Code.

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RULING: Yes, the will is fatally defective. By no manner of contemplation can those words be construed as an
acknowledgment.
An acknowledgement 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 deed. It involves an extra step undertaken whereby the signore 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.
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.

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