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Nera v.

Rimando

- Only questioned raised by the evidence in this case as to the due execution of the instrument
propounded as a will is whether the one of the subscribing witnesses was present in the small
room where the will was executed at the time when the testator and the other subscribing
witnesses attached their signatures.

WON, the will was validly witnessed by one of the subscribing witnesses to make the will valid.
- Yes. The subscribing witness validly witnessed the signing.
- Majority of the members of the court is of the opinion that the subscribing witness was indeed
in the small room to be able to observe the signing of the will be the testator and other
subscribing witnesses.
- The trial court decided when it said that the fact that one of the alleged witnesses signed the
instrument in the outer room when the others were inside would not be sufficient in itself to
invalidate the execution of the will.
- But this Court is of the opinion that had this subscribing witness been proven to have been in
the outer room, it would have been invalid as a will.
- But it is especially to be noted that 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.
- It is enough that when the witness, if he chose to look at the actual signing he could have
done so by just merely casting his eyes in the proper direction, such would be considered
already as a proper witnessing of the said execution of the will.
- However, to extend to extend this doctrine further would open the door to the possibility of all
manner of fraud, substitution and the like and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in the execution of a will.
- Hence the will is to be admitted to probate.
- Actual seeing is not required, but the ability to see each other, i.e. the testator and the
witnesses, “by merely casting eyes in the proper direction.”

Icasiano v. Icasiano

- Josefa Villacorte died in Manila on September 12, 1958; on June 2, 1956, Villacorte executed
a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano before
three instrumental witnesses, namely; attorneys Justo P. Torres, Jr. and Jose V. Natividad,
and Dr. Vinicio B. Diy.
- 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 three (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 Natividad, who testified on his failure to sign page three (3) of the original, 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.

Whether or not the will is void (since one of the pages in the original copy was not signed by
one of the witnesses)
- 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.
- 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. Otherwise, witnesses may sabotage
the will by muddling or bungling it or the attestation clause".
- That the failure of witness 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.
- The law should not be so strictly and literally interpreted where the purpose of the law to
guarantee the identity of the testament and its component pages is sufficiently attained.

Notes on Icasiano – Icasiano holding cannot, and should not, be taken as a departure from the
rule that the will should be signed by the witnesses on every page. The carbon duplicate, it will
be noted, was regular in all respects. A cavalier disregard of the formal requirements of wills, in
reliance on Icasiano, is not recommended.

Taboada v. Rosal

- Written in Cebuano-Visayan dialect, the will consists of 2 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 3 witnesses. The second page which contains the
attestation clause and the acknowledgement is signed at the end of the attestation clause by
the 3 witnesses and at the left hand margin by the testatrix.
- The lower court denied probate of deceased Perez.

Whether or not the law requires that the testatrix and 3 witnesses sign at the end of the will and
in the presence of the testatrix and of one another.
- SC held that the will should be admitted because:
1. The signatures of the witnesses in the left hand margin of the 1st page 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.
2. Unsubstantial departure from the usual forms should be ignored esp. where the
authenticity of the will is not assailed.
3. The objects of the attestation and subscription were fully met when the witnesses signed
at the sole page where the testamentary
- Dispositions were contained, esp. so when the will was properly identified by the subscribing
witness to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
- SC held that this would have been a fatal defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually composed of only 2 pages duly
signed by the testatrix and her witnesses.
- The acknowledgement itself in the second page states that “This Last Will and Testament
consists of two pages including this page.”
Whether or not it should be invalidated due to the attestation clause’s failure to state the number
of pages used in writing the will.
- 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.
- 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.

Payad v. Tolentino

- The lower court denied probate on the will of deceased Tolentino on the ground that the
attestation clause was not in conformity with the requirements of law in that it is not stated
therein that the testatrix caused Atty. Almario to write her name at her express direction.
- Whether or not the will should be denied probate.
- SC held that it should not be denied because:
1. The deceased placed her thumb mark on each and every page of the will and the
attorney merely wrote her name to indicate the place where she placed her thumb mark.
Thus, the attorney did not really sign for her.
2. It was not necessary that the attestation clause should state that the testatrix requested
Atty. Alamario to sign her name since she signed it in accordance with law.
A statute requiring a will to be signed is satisfied if the signature is made by the testator’s mark.

Garcia v. Lacuesta

- This case purports to the validity of the will executed by Antero Mercado.
- The will is said to be irregularly execute as the attestation clause did not mention that it was
Atty. Javier who signed for the decedent under the latter’s express direction.
- The other party however argued that such fact need not be mentioned because although Atty.
Javier wrote the name of Mercado, Mercado nevertheless put a cross and that such cross
amounts to a signature by the decedent himself.

Whether or not the will was valid


- The SC held that it was not.
- Although there have been cases considering marks, such as a cross, as sufficient signature,
there is nothing in the records that shows that Mercado usually uses a cross as his signature.
- As such, the will was disallowed.
- Marks, such as a cross, can only be considered as a signature if there is showing that the
decedent was accustomed to using such mark as signature.
Gan v. Yap

- On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the UST hospital
leaving properties in Bulacan and in Manila.
- On March 17, 1952, Fausto E. Gan initiated these proceedings in CFI Manila for probate the
holographic will executed allegedly by the deceased.
- In opposition to said proceedings, the surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her lifetime.
- After hearing the parties, the court refused to probate the alleged will. The will itself was not
presented.
- Sometime in 1950, Felicidad Esguerra mentioned to her first cousin Vicente Esguerra her
desire to make a will. However, she wanted it to be a secret because she said that it would be
useless if her husband discovered or knew about it.
- So Vicente consulted with the nephew of Felicidad and found out that it could be done
provided that the document was entirely in her handwriting, signed and dated by her.
- As a result of this, Felicidad proceeded with the making of her will. Though it was a secret,
she would show people who would visit her will.
- After evaluating the pieces of evidence presented before the court, the trial judge had to
accept the oppositor’s evidence that Felicidad did not and could not have executed such
holographic will.
- Hence this appeal.

WON, a lost holographic will can be admitted to probate.


- No. Articles 810-814 govern holographic wills. It is stated that, “A person may execute a
holographic will which must be entirely written, dated and signed by the hand of the testator
himself. It is subject to no other form and may be made in our out of the Philippines, and need
not be witnessed.”
- Unlike ordinary wills, holographic wills need not observe the rules laid down in Art. 805 for its
compliance with the law. As long as it is written entirely, dated and signed by the testator
himself, then it will be sufficient proof that it has been executed in accordance with law.
- However, witnesses may be brought in so as to verify that the will and the signature are in the
handwriting of the testator. The witnesses so presented do not need to have seen the
execution of the holographic will.
- In the case hand however, the will holographic will was not presented to the court. Obviously,
when the will itself is not submitted, these means of opposition and, of assessing the evidence
are not available. And then the only guaranty of authenticity – the testator’s handwriting – has
disappeared.
- It is therefore to be concluded that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/ or
read such will.
- This is because the only guaranty of the authenticity is the handwriting itself. The loss of the
holographic will entails the loss of the only medium of proof.
- That even if oral testimony were admissible to establish and probate a lost holographic will,
the evidence submitted by the petitioner is so tainted with improbabilities and inconsistencies
that it fails to measure up to that clear and distinct proof required by Rule 77.
- Rejection of the alleged will must be sustained
- The execution and the contents of a lost or destroyed holographic will may not be proved by
bare testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity.

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