Republic of the Philippines Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
SUPREME COURT Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his
Manila
SECOND DIVISION
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.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or
not 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.
The records show that 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 in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator
was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will.1 It was declared therein, among other things, that the testator was leaving by way
of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be
related to the testator.2
last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator
passed away before his petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni
Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the testator's
estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its
order of March 6, 1981.4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition,
entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No.
3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in
Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the
appointment of a special administrator for his estate.5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional
Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July
20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives
since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984
the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it
remained until the conclusion of the probate proceedings.6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and
objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the
testator was already in the poor state of health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein.7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo
Manigos, testified that the testator executed the will in question in their presence while he was of sound and
disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and
was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other
witnesses attested and signed the will in the presence of the testator and of each other. The other two
attesting witnesses were not presented in the probate hearing as the had died by then.8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive
testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo
Caballero executed the Last Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the
fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in
Exhibit "C" examined by a handwriting expert of the NBI but it would seem that despite their avowal and
intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as
witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that
it was executed in accordance with all the requisites of the law.9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in
CA-G.R. CV No. 19669. They 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.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling
that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil
Code, thus:
The question therefore is whether the attestation clause in question may be considered as having substantialy
complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of the upper part of each page, as his Last Will
and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature
and on the left hand margin in the presence of the said testator and in the presence of each and all of
us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that
the said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one
another. Or as the language of the law would have it that the testator signed the will "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 not completely or ideally perfect in accordance with the
wordings of Art. 805 but (sic) the phrase as formulated is in substantial compliance with the requirement of the
law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in
the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that
respondent court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence
on the matter and are now questioning once more, on the same ground as that raised before respondent court,
the validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations
which we feel should be made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil
Code, there are two kinds of wills which a testator may execute.14 the first kind is the ordinary or attested will,
the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires 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 should 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 witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting
witness. 15hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons
who would read the will and communicate its contents to him in a practicable manner. On the other hand, if the
testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again,
by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and
signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses.
A common requirement in both kinds of will is that they should be in writing and must have been executed in a
language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or
dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known to the attesting witnesses. 18 The last
paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said
witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of the execution the same. 19 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. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended
the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the
invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written; (2) that
the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the
attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all
its pages, and that saidwitnesses also signed the will and every page thereof in the presence of the testator
and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase
or decrease in the pages;23 whereas the subscription of the signature of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the
very same instrument executed by the testator and attested to by the witnesses.24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as
embodied in the attestation clause.25 The attestation clause, therefore, provide strong legal guaranties for the
due execution of a will and to insure the authenticity thereof.26 As it appertains only to the witnesses and not to
the testator, it need be signed only by them.27 Where it is left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the
testator and its witnesses.28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be
followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on the law on wills in this Project
consists in the liberalization of the manner of their execution with the end in view of giving the testator more
freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in the execution of
wills. . . .29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets
all of which have been numbered correlatively, with the left margin of each page thereof bearing the
respective signatures of the testator and the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other hand, is recited in the English language and is
likewise signed at the end thereof by the three attesting witnesses hereto.30 Since it is the proverbial bone of
contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite
of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part of each page, as his Last
Will and Testament and he has the same and every page thereof, on the spaces provided for his signature
and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the
presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is
the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to
attest a will is to know that it was published as such, and to certify the facts required to constitute an actual
and legal publication; but to subscribe a paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification.31
In Taboada vs. Rizal,32 we clarified that 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. On the other hand, 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. As it involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the presence of the testator and
of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses 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. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses
and states as well the number of pages that were used, the same 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 spaces 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." On the other hand, although the words
"in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in
the presence of the witnesses since said phrase immediately follows the words "he has signed the same and
every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly
lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof
in the presence of the testator and of one another.
It is our considered view that the absence of that 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 admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
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 not proved that the will was in fact executed and attested in substantial compliance with all the requirements
of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of
each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the presence of the testator and of each other since, as
petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is supposed to be one act so that where the testator and the
witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the
imprimatur of effectivity.33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged
caution in the application of the substantial compliance rule therein, is correct and should be applied in the
case under consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will
itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was notarized. All theses are facts that the will
itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of
each other must substantially appear in the attestation clause, being the only check against perjury in the
probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the
form of the attestation or the language employed therein. Such defects or imperfections would not render a
will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In
this regard, however, the manner of proving the due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where 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.35 In such a
situation, the defect is not only in the form or language of the attestation clause but the total absence of a
specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no plausible way by which we can read
into the questioned attestation clause statement, or an implication thereof, that the attesting witness did
actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental
witnesses also signed the will and every page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents
since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or
a consideration of matters apparent therefrom which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted
textual requirements were actually complied within the execution of the will. In other words, defects must be
remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can
be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields
no basis whatsoever from with such facts may be plausibly deduced. What private respondent insists on are
the testimonies of his witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2645, but
the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan
vs. Abangan,36 where it was held that 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 guarantee their truth
and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. Nonetheless, it was also emphasized that 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, hence when an interpretation
already given assures such ends, any other interpretation whatsoever that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. The
subsequent cases of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs. Abella,39 Pecson vs.
Coronel,40 Fernandez vs. Vergel de Dios, et al.,41and Nayve vs. Mojal, et al.42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities that should be observed
in the execution of wills are mandatory in nature and are to be strictly construed was followed in the
subsequent cases of In the Matter of the Estate of Saguinsin,43 In re Will of Andrada,44 Uy Coque vs. Sioca,45 In
re Estate of Neumark, 46and Sano vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that
the witnesses signed the will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases
of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing
with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In
re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil.,
476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924],
46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our
task is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel, namely, those
of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that
the witnesses signed the will and each and every page thereof on the left margin in the presence of the
testator is defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but
the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the attestation clause must estate the fact that the testator
and the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by the mere
exhibition of the will, if it is not stated therein. It was also held that the fact that the testator and the witnesses
signed each and every page of the will can be proved also by the mere examination of the signatures
appearing on the document itself, and the omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine.
Yet here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place,
the Mojal, decision was concurred in by only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven members of the court, a clear majority,
with one formal dissent. In the second place, the Mojal decision was promulgated in December, 1924, while
the Quintana decision was promulgated in December, 1925; the Quintana decision was thus subsequent in
point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable
provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the case is here found in
section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code,
as unamended. It is in part provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .."
It is further provided in the same section that "The attestation shall state the number of sheets or 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 three witnesses, and the
latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other."
Codal section 634 provides that "The will shall be disallowed in either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone carefully makes use of the imperative, but cautiously
goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary,
modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto
vs. Morata,49Rodriguez vs. Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of Toray52 went the way of
the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De
Gorostiza,55Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs.
Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict interpretation rule and
established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination
towards a liberal construction, recommended the codification of the substantial compliance rule, as it believed
this rule to be in accord with the modern tendency to give a liberal approach to the interpretation of wills. Said
rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in accordance with the formalities
prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of
the Philippines had previously upheld the strict compliance with the legal formalities and had even said that
the provisions of Section 618 of the Code of Civil Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily restrained the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has become more liberal in the
interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases
of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions
of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn
this attitude into a legislative declaration and to attain the main objective of the proposed Code in the
liberalization of the manner of executing wills, article 829 of the Project is recommended, which reads:
"Art. 829. 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 829."65
The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or difficulty, nor does
it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw
the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or
supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration
into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities
of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby
REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate of the said decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January
3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:
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.
In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty
three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA
CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado,
followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have
written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled 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. Florentino 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 three witnesses signed the will in all the pages thereon in the presence of the testator and
of each other.
In our opinion, 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. The herein petitioner (who is appealing by way of certiorari from the decision of the
Court of Appeals) argues, however, that there is no need for such recital because the cross written by the
testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55
Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil.,
429.
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, we are 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.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the
presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
[G.R. No. L-36033. November 5, 1982.]
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased):
APOLONIO TABOADA, Petitioner, v. HON. AVELINO S. ROSAL, as Judge of the Court of First Instance of Southern
Leyte, (Branch III, Maasin), Respondent.
Erasmo M. Diola for Petitioner.
Aurelio S. Rosal in his own behalf.
SYNOPSIS
Petitioner filed a petition for probate of the will of the late Dorotea Perez and presented as evidence the alleged will and the
testimony of one of the subscribing witnesses thereto. However, the trial court disallowed the will for want of formality in its
execution because the will was signed at the bottom of the page solely by the testatrix and at the left hand margin by three
instrumental witnesses. Respondent judge interpreted Article 805 of the Civil Code to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the "end" of the will but all the three subscribing witnesses must also
sign at the same place or at the end, in the presence of the testatrix and of one another, because the attesting witnesses to
the will attest not merely the will itself but also the signature of the testator. Petitioner’s motion for reconsideration and
subsequent motion for the appointment of special administrator were likewise denied.
On certiorari, the Supreme Court held a) that the objects of attestation and subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly identified by a subscribing witness to be the same will executed by the
testatrix; and b) that the failure of the attestation clause to state the number of pages used in writing the will would have
been a fatal defect were it not for the fact that it is really and actually composed of only two pages duly signed by the
testatrix and her instrumental witnesses.
Petition granted. Assailed orders of probate court set aside. Respondent court is ordered to allow probate of the will and to
conduct further proceedings.
SYLLABUS
1. CIVIL LAW; WILLS AND TESTAMENTS; NOTARIAL WILL; FORMALITIES; ATTESTATION AND SUBSCRIPTION; DEFINED. —
Under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator’s
name written by another 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. 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. On the other hand, 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 (Ragsdale v. Hill, 269 SW 2d 911).
2. ID.; ID.; ID.; ID.; ID.; FULLY COMPLIED WITH IN CASE AT BAR. — The objects of attestation and of subscription were
fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly identified by subscribing witness Vicente
Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned
order.
3. ID.; ID.; ID.; ID.; TREND TOWARDS LIBERAL CONSTRUCTION. — While perfection in the drafting of a will may be
desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449) The law is to be liberally construed, "the underlying and fundamental
objective permeating the provision on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and
influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the
execution of a will" (Report of the Code Commission, p. 103).
4. ID.; ID.; ID.; ID.; ATTESTATION CLAUSE; FAILURE TO STATE THE NUMBER OF PAGES USED IN WRITING THE WILL IS
FATAL; EXCEPTION; CASE AT BAR. — The failure of the will’s attestation clause to state the number of pages used in writing
the will 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 two pages duly signed by the testatrix and her instrumental witnesses (See Singson
v. Florentino, Et. Al. (192 Phil. 161, 1641 and Ino v. Ino, [11 SCRA 422, 429].)
DECISION
GUTIERREZ, JR., J.:
This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio
Taboada, Petitioner," which denied the probate of the will, the motion for reconsideration and the motion for appointment of
a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the
late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of two 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 three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three 13) attesting witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner’s compliance with the requirement of publications, the trial court
commissioned the branch clerk of court to receive the petitioner’s evidence. Accordingly, the petitioner submitted his
evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and
due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of
Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the
names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene
in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion ex parte praying for
a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked
that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together
with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his
transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge
Avelino S. Rosal assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte.
In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the
petitioner’s failure to comply with the order requiring him to submit the names of the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides: jgc:cha nrob les.com .ph
"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 with and 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." cralaw virtua1aw li bra ry
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not
enough that only the testatrix signs at the "end" but all the three subscribing witnesses must also sign at the same place or
at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the
will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a
matter of absolute necessity for the extrinsic validity of the will that the signatures of the subscribing witnesses should be
specifically located at the end of the will after the signature of the testatrix. He contends that 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 and the honest frailties
of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or
by the testator’s name written by another 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.
It must be noted that the law uses the terms attested and subscribed. 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. On the other hand, 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. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in
a manner which fully satisfies the purpose of identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will 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.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills Melencio-Herrera (Acting Chairman), Plana, Vasquez and Relova, JJ., concur.
in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more
freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and Teehankee (Chairman), J., is on leave.
the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern
tendency in respect to the formalities in the execution of a will" (Report of the Code Commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for the defect in the place of
signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the
will was properly identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was
no question of fraud or substitution behind the questioned order. chanrobles. com.ph : vi rtua l law lib ra ry

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in
writing the will. 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 two pages duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary dispositions is 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. The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page." cralaw virt ua1aw lib rary

In Singson v. Florentino, Et. Al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose
of the requirement that the attestation clause must state the number of pages used: jgc:chanroble s. com.ph

"The law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires 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 (In re will of Andrada, 42 Phil. 180; Uy Coque
v. Navas L. Sioca, 43 Phil. 405; Gumban v. Gorecho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481; Echevarria v. Sarmiento,
66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the
number of sheets or passes composing the will and that if this is missing or is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself.
But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the
will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations." cralaw vi rtua 1aw lib rary

Republic of the Philippines

Ino v. Ino (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach: chanrobles v irt ual lawl ibra ry
SUPREME COURT
Manila
". . . Impossibility of substitution of this page is assured not only (sic) 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 EN BANC
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 attest to the full observance of the statutory requisites. G.R. No. L-13431 November 12, 1919
Otherwise, as stated in Vda. de Gil. v. Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration) ‘witnesses may
sabotage the will by muddling or bungling it or the attestation clause.’"
In re will of Ana Abangan.
WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which denied the probate of the will, GERTRUDIS ABANGAN, executrix-appellee,
the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set
aside. The respondent court is ordered to allow the probate of the will and to conduct further proceedings in accordance with vs.
this decision. No pronouncement of costs. ANASTACIA ABANGAN, ET AL., opponents-appellants.

SO ORDERED.
Filemon Sotto for appellants. sheet are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix,
M. Jesus Cuenco for appellee. we can add that same is not necessary in the attestation clause because this, as its name implies, appertains
only to the witnesses and not to the testator since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that 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
AVANCEÑA, J.: 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.

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed
July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of
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
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.lawp hil.net

by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to
appellants' contention, are defects whereby the probate of the will should have been denied. We are of the
opinion that the will was duly admitted to probate. As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in
which the will is written. But the circumstance appearing in the will itself that same was executed in the city of
Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any
In requiring that each and every sheet of the will should also be signed on the left margin by the testator and proof to the contrary, to presume that she knew this dialect in which this will is written.
three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently
has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions are wholly written on only one sheet signed For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the
at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of appellants. So ordered.
said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets
Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.
which the testator and the witnesses do not have to sign at the bottom. A different interpretation would
assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot
attribute to the statute such an intention. As these signatures must be written by the testator and the witnesses
in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would add nothing. We cannot assume that the statute
regards of such importance the place where the testator and the witnesses must sign on the sheet that it
would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.

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 Republic of the Philippines
statute disappears because the removal of this single sheet, although unnumbered, cannot be hidden. SUPREME COURT
Manila

What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not
this clause is an essential part of the will, we hold that in the one accompanying the will in question, the EN BANC
signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the
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.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased,
and appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to
probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment
of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published
for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also
caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November
10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected.
Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special
administrator.1äw phï1 .ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own
Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1,
1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent
left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the
signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959,
oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of
the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on
July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented
their respective evidence, and after several hearings the court issued the order admitting the will and its
duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being
over P200,000.00, on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on
September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before
and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad,
and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila;
and that the will was actually prepared by attorney Fermin Samson, who was also present during the
execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of
Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of
the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public
before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also testified upon cross examination that he
prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in
Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of the
petition and marked as Exhibit "A" 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 and marked as Exhibit
"A-1" is signed by the testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and its
duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix
herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of
one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the
original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause
thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and spoken by the testatrix that the attestation
clause is in a language also known to and spoken by the witnesses; that the will was executed on one single
occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged
before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.
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.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the
duplicate (Exhibit "A-1") 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.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original
and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the
presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson,
who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language
known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin
Samson, together before they were actually signed; that the attestation clause is also in a language known to
and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the
signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to
support the conclusion that the differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with
so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show
convincingly that the are radical differences that would justify the charge of forgery, taking into account the
advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the
duplicate being signed right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not
appear reliable, considering the standard and challenged writings were affixed to different kinds of paper, with
different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres and
Natividad (Dr. Diy being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than
others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal,
45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary dispositions 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 occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco
vs. Sideco, 45 Off. Gaz. 168, 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 question of law, we hold that 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, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "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.
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 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 make 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 bid 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 (Exh.
A-1) is not entitled to probate. Since they opposed probate of 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 (Exh. A-1), 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, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect
the jurisdiction of the probate court, already conferred by the original publication of the petition for probate.
The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing
the existence of the duplicate, and no showing is made that new interests were involved (the contents of
Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see
no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due
execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in
the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is written is
fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally
defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a
mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will
with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives
for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under
Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will.
Article 806 likewise imposes another safeguard to the validity of notarial wills — that they be acknowledged
before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two
codal provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila.
The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo,
which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat
ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong
sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya
at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon,
yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na
nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at
ang pagkakaloob kong ito ay walang pasubali’t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling
habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat
at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
 Sampaloc, Manila Res. Cert. No. A-7717-37 then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio
Issued at Manila on March 10, 1981. Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her
mother by three (3) months.5
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law.
Pandacan, Manila Res. Cert. No. A-458365 She pointed out that decedent’s signature did not appear on the second page of the will, and the will was not
Issued at Manila on Jan. 21, 1981 properly acknowledged. These twin arguments are among the central matters to this petition.

LAMBERTO C. LEAÑO After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably
address: Avenue 2, Blcok 7, took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and
Lot 61, San Gabriel, G.MA., Cavite Res. Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 execution of a will x x x with the end in view of giving the testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted oppositor’s arguments that the will was not properly executed
and attested to in accordance with law.
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829 After a careful examination of the will and consideration of the testimonies of the subscribing and attesting
Issued at Manila on March 2, 1981. witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e.,
the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng question is authentic and had been executed by the testatrix in accordance with law.
Maynila.

On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of
(Sgd.) the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will,
but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner
himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be
allowed, and that letters testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery,
and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed
by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on
petitioner’s right to occupy the properties of the decedent.3 It also asserted that contrary to the representations
of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan
ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon,
sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig
ng lahat at bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by
this Court as a substantial compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the
bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the
second page of the will containing the attestation clause and acknowledgment, instead of at the bottom
thereof, substantially satisfies the purpose of identification and attestation of the will.
With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on upper
part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that
the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions,
and the second page contains the last portion of the attestation clause and acknowledgement. Such being so,
the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix
to affix her signature on the left margin of the second page, which contains only the last portion of the
attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies
of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the
signature of the testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased
mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial
court and ordered the dismissal of the petition for probate.9 The Court of Appeals noted that the attestation
clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of
probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a
notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus
susceptible to what he termed as "the substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate
in full.
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.
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.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. 12 There
was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the
number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left
uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v.
Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will
in question was the failure of the attestation clause to state the number of pages contained in the will.15 In
ruling that the will could not be admitted to probate, the Court made the following consideration which remains
highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation
clause is obvious; the document might easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will and in the absence of a statement of the
total number of sheets such removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is
stated in the attestation clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater
difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of
sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the
point that the defect pointed out in the attesting clause is fatal." 17 It was further observed that "it cannot be
denied that the x x x requirement affords additional security against the danger that the will may be tampered
with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material." 18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the
Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state
the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the
number of pages used upon which the will is written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et
al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a
will may still be valid even if the attestation does not contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at
bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although
the attestation in the subject Will did not state the number of pages used in the will, however, the same was
found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires
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 (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs.
Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of
the will itself. But here the situation is different. While the attestation clause does not state the number of
sheets or pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid
rule of construction and places it within the realm of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from being defeated by purely technical considerations." (page
165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will
states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the number of
pages used in writing the will. 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 two pages duly signed by the
testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the
testamentary dispositions is 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. The acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The
will does not even contain any notarial acknowledgment wherein the number of pages of the will should be
stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when
the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure. 22 Reliance on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of the will is extant from Section 618. 23 However,
the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at
least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these
two cases. Article 809 of the Civil Code states: "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."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying
and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the
[liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities
in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code
Commission in the very same paragraph he cites from their report, that such liberalization be "but with
sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator."25
Caneda v. Court of Appeals 26 features an extensive discussion made by Justice Regalado, speaking for the Court on
the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation
clause in wills. 27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application
of the rule of strict construction.28 However, the Code Commission opted to recommend a more liberal construction
through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L.
Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will
itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will
itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering
that the failure to state the number of pages of the will in the attestation clause is one of the defects which
cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose
attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other,30 the other omission cited by Justice J.B.L. Reyes which to his
estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal
and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself." 31 Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact can be checked by a visual examination;
while a failure by the attestation clause to state that the witnesses signed in one another’s presence should be
considered a fatal flaw since the attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was written remains a fatal
flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which
the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages. 33 The failure to state the number of pages equates with the
absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will,
the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised
of, as was the situation in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation clause or
anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained
effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements,
however picayune in impression, affords the public a high degree of comfort that the testator himself or herself
had decided to convey property post mortem in the manner established in the will. 35 The transcendent
legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition
of the testator’s incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself
reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of
the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the
attestation clause which after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "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."37 While three (3) Justices38 considered the signature requirement had
been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.
There is no question 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.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of 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 and 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. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement
that the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and
subscribed by [the instrumental witnesses]." The respective intents behind these two classes of signature are
distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the
witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are referring to the statements contained in the attestation
clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin
of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses’
undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself,
but not the left-hand margin of the page containing such clause. Without diminishing the value of the
instrumental witnesses’ signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as
they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The
requirement under Article 806 that "every will must be acknowledged before a notary public by the testator
and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate
provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited
flaws in compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the
ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those requirements under Article 805 by whoever executed the will.
words be construed as an acknowledgment. An acknowledgment 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.41 It involves an extra
All told, the string of mortal defects which the will in question suffers from makes the probate denial
step undertaken whereby the signor 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. inexorable.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual language WHEREFORE, the petition is DENIED. Costs against petitioner.
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. 42 Ordinarily, the language of the jurat should avow that the SO ORDERED.
document was subscribed and sworn before the notary public, while in this case, the notary public averred
that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized"
encompasses the signing of and swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.

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. An acknowledgement is not an empty meaningless
act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of
the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is
under oath and under pain of perjury, thus allowing 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 certain mindset in making the testamentary dispositions to
those persons he/she had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial
will that is not acknowledged before a notary public by the testator and the witnesses is fatally
defective, even if it is subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will in question. We
need not discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and
every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively
in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign
both pages of the will on the left margin, her only signature appearing at the so-called "logical end"44 of the will
on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two
requirements be construed as mandatory. 45Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this
 In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will.
Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported
witnesses to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land
which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent on June 30, 1965. 1 Complainant, however, pointed
out that the residence certificate2 of the testator noted in the acknowledgment of the will was dated January 5,
1962.3 Furthermore, the signature of the testator was not the same as his signature as donor in a deed of
donation4 (containing his purported genuine signature). Complainant averred that the signatures of his deceased father in
the will and in the deed of donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in all
angle[s]."5

Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and
Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters' affidavits.

Complainant further asserted that no copy of such purported will was on file in the archives division of the Records
Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the
certification of the chief of the archives division dated September 19, 1999 stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME
RAMIREZ on June 30, 1965 and is available in this Office['s] files.6

Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that
complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged
that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and
actually notarized by respondent per affidavit7of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by
the joint affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9

Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant
against him in the Office of the Ombudsman "did not prosper."

[A.C. NO. 5281 : February 12, 2008] Respondent did not dispute complainant's contention that no copy of the will was on file in the archives division of the NCCA.
He claimed that no copy of the contested will could be found there because none was filed.

MANUEL L. LEE, Petitioner, v. ATTY. REGINO B. TAMBAGO, Respondent.

Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first
file an action for the declaration of nullity of the will and demand his share in the inheritance.
RESOLUTION

In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for
CORONA, J.: investigation, report and recommendation.10

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial
violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament. Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly
Canon 111 and Rule 1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the investigating commissioner of the
IBP Commission on Bar Discipline recommended the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the
Report and Recommendation of the Investigating Commissioner of the above-entitled case,
herein made part of this Resolution as Annex "A"; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules, and considering
Respondent's failure to comply with the laws in the discharge of his function as a notary public,
Atty. Regino B. Tambago is hereby suspended from the practice of law for one year and
Respondent's notarial commission is Revoked and Disqualified fromreappointment as Notary
Public for two (2) years.14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.15 A will may either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding
the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity.16
A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself.
In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of
one another.17
The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be
considered void.18 This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory
laws shall be void, except when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the
witnesses.19 The importance of this requirement is highlighted by the fact that it was segregated from the other
requirements under Article 805 and embodied in a distinct and separate provision.20
An acknowledgment 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 signatory actually declares to the notary public that
the same is his or her own free act and deed. 21 The acknowledgment in a notarial will has a two-fold purpose: (1) to
safeguard the testator's wishes long after his demise and (2) to assure that his estate is administered in the manner that he
intends it to be done.
A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither
strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence
certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator's old
residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated
the will.
As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and
those of notarization. As we held in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries public. They are required to
certify that the party to every document acknowledged before him had presented the proper
residence certificate (or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification.
These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight
attached to notarized documents.23 A notary public, especially a lawyer,24 is bound to strictly observe these elementary
requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or
instrument:
Section 251. Requirement as to notation of payment of [cedula] residence tax. - Every contract,
deed, or other document acknowledged before a notary public shall have certified thereon that the
parties thereto have presented their proper [cedula] residence certificate or are exempt from the
[cedula] residence tax, and there shall be entered by the notary public as a part of such certificate
the number, place of issue, and date of each [cedula] residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence Tax Act26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any document before a
notary public xxx it shall be the duty of such person xxx with whom such transaction is had or
business done, to require the exhibition of the residence certificate showing payment of the
residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is
issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired
residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax
Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives
division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witness. 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)
Respondent's failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause
for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his
notarial register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological
order:
1. nature of each instrument executed, sworn to, or acknowledged before him;
 2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and cralawlib rary
7. if the instrument is a contract, a brief description of the substance of the instrument.27
In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a
prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To
reinforce his claim, he presented a photocopy of a certification28stating that the archives division had no copy of the affidavit
of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The
proponent must first prove the existence and cause of the unavailability of the original, 29 otherwise, the evidence presented
will not be admitted. Thus, the photocopy of respondent's notarial register was not admissible as evidence of the entry of the
execution of the will because it failed to comply with the requirements for the admissibility of secondary evidence.
In the same vein, respondent's attempt to controvert the certification dated September 21, 199930 must fail. Not only did he
present a mere photocopy of the certification dated March 15, 2000; 31 its contents did not squarely prove the fact of entry
of the contested will in his notarial register.
Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the performance of their
duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined. 33
Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be
taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this
case, are no longer alive to identify the instrument and to confirm its contents.34 Accordingly, respondent must be held
accountable for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. - The following derelictions of duty on the part of a notary
public shall, in the discretion of the proper judge of first instance, be sufficient ground for the
revocation of his commission:
xxx xxx xxx
(b) The failure of the notary to make the proper entry or entries in his notarial register touching
his notarial acts in the manner required by law.
xxx xxx xxx
(f) The failure of the notary to make the proper notation regarding cedula certificates. 36
These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted
transgressions of Section 20 (a), Rule 138 of the Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution
and obey the laws of the land.40 For a lawyer is the servant of the law and belongs to a profession to which society has
entrusted the administration of law and the dispensation of justice.41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes
responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover
make himself an example for others to emulate.42 Being a lawyer, he is supposed to be a model in the community in so far
as respect for the law is concerned.43
The practice of law is a privilege burdened with conditions.44 A breach of these conditions justifies disciplinary action against
the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has engaged in
professional misconduct.45 These sanctions meted out to errant lawyers include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction.46 We have held in a number of cases that the power to disbar
must be exercised with great caution47 and should not be decreed if any punishment less severe - such as reprimand,
suspension, or fine - will accomplish the end desired.48 The rule then is that disbarment is meted out only in clear cases of
misconduct that seriously affect the standing and character of the lawyer as an officer of the court.49
Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his
claims that he "exercised his duties as Notary Public with due care and with due regard to the provision of existing law and
had complied with the elementary formalities in the performance of his duties xxx," we find that he acted very irresponsibly
in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of
law. It is, as well, a sufficient basis for the revocation of his commission 50 and his perpetual disqualification to be
commissioned as a notary public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the
Lawyer's Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4)
Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial
commission REVOKED.Because he has not lived up to the trustworthiness expected of him as a notary public and as an
officer of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of
the Bar Confidant, as well as made part of the personal records of respondent.
SO ORDERED.
LETICIA VALMONTE ORTEGA, G.R. No. 157451

Petitioner,

Present:

Panganiban, J.,

Chairman,

- versus - Sandoval-Gutierrez,

Corona,
Carpio Morales, and Garcia, JJ Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court,
seeking to reverse and set aside the December 12, 2002 Decision[2] and the March
JOSEFINA C. VALMONTE, Promulgated:
7, 2003 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 44296. The
Respondent. assailed Decision disposed as follows:

December 16, 2005

x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x WHEREFORE, the appeal is GRANTED, and the Decision appealed from

is REVERSED and SET ASIDE. In its place judgment is rendered approving and
allowing probate to the said last will and testament of Placido Valmonte and
ordering the issuance of letters testamentary to the petitioner Josefina Valmonte.
Let this case be remanded to the court a quo for further and concomitant
DECISION proceedings.[4]

PANGANIBAN, J.:

The assailed Resolution denied petitioners Motion for Reconsideration.

T he law favors the probate of a will. Upon those who oppose it rests the burden The Facts
of showing why it should not be allowed. In the present case, petitioner has
failed to discharge this burden satisfactorily. For this reason, the Court cannot
attribute any reversible error on the part of the appellate tribunal that allowed the The facts were summarized in the assailed Decision of the CA, as follows:
probate of the will.

x x x: Like so many others before him, Placido toiled and lived for a long time in the
The Case United States until he finally reached retirement. In 1980, Placido finally came
home to stay in the Philippines, and he lived in the house and lot located at #9200
Catmon St., San Antonio Village, Makati, which he owned in common with his
sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his
arrival from the United States and at the age of 80 he wed Josefina who was then
28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5,
1982. But in a little more than two years of wedded bliss, Placido died on October
8, 1984 of a cause written down as COR PULMONALE.
Placido executed a notarial last will and testament written in English and consisting
of two (2) pages, and dated June 15, 1983 but acknowledged only on August 9,
1983. The first page contains the entire testamentary dispositions and a part of the
attestation clause, and was signed at the end or bottom of that page by the
testator and on the left hand margin by the three instrumental witnesses. The
second page contains the continuation of the attestation clause and the
acknowledgment, and was signed by the witnesses at the end of the attestation
clause and again on the left hand margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD
AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a
resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being
of sound and disposing mind and memory, do hereby declare this to be my last will
and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the
Catholic Church in accordance with the rites and said Church and that a suitable
monument to be erected and provided my by executrix (wife) to perpetuate my
memory in the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one
half (1/2) portion of the follow-described properties, which belongs to me as
[co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in
Makati, Metro Manila, described and covered by TCT No. 123468 of the Register of
Deeds of Pasig, Metro-Manila registered jointly as co-owners with my deceased
sister (Ciriaca Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property, made of strong
and mixed materials used as my residence and my wife and located at No. 9200
Catmon Street, Makati, Metro Manila also covered by Tax Declaration No.
A-025-00482, Makati, Metro-Manila, jointly in the name of my deceased sister,
Ciriaca Valmonte and myself as co-owners, share and share alike or equal
co-owners thereof;
3. All the rest, residue and remainder of my real and personal properties,
including my savings account bank book in USA which is in the possession of my
nephew, and all others whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last
will and testament, and it is my will that said executrix be exempt from filing a
bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in
Quezon City, Philippines.
The allowance to probate of this will was opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially
those found in the USA;
2. Petitioner failed to state the names, ages, and residences of the
heirs of the testator; or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities
and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the alleged
execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part
of the petitioner and/or her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not intend
that the instrument should be his will at the time of affixing his signature thereto;
and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.
At the hearing, the petitioner Josefina testified and called as witnesses the notary
public Atty. Floro Sarmiento who prepared and notarized the will, and the
instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie
Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane
Ortega testified.
According to Josefina after her marriage with the testator they lived in her parents
house at Salingcob, Bacnotan, La Union but they came to Manila every month to
get his $366.00 monthly pension and stayed at the said Makati residence. There
were times though when to shave off on expenses, the testator would travel alone.
And it was in one of his travels by his lonesome self when the notarial will was
made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were
their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge
of the existence of the last will and testament of her husband, but just
serendipitously found it in his attache case after his death. It was only then that
she learned that the testator bequeathed to her his properties and she was named
the executrix in the said will. To her estimate, the value of property both real and
personal left by the testator is worth more or less P100,000.00. Josefina declared
too that the testator never suffered mental infirmity because despite his old age
he went alone to the market which is two to three kilometers from their home
cooked and cleaned the kitchen and sometimes if she could not accompany him,
even traveled to Manila alone to claim his monthly pension. Josefina also asserts
that her husband was in good health and that he was hospitalized only because of
a cold but which eventually resulted in his death.
Notary Public Floro Sarmiento, the notary public who notarized the testators will,
testified that it was in the first week of June 1983 when the testator together with
the three witnesses of the will went to his house cum law office and requested him
to prepare his last will and testament. After the testator instructed him on the
terms and dispositions he wanted on the will, the notary public told them to come
back on June 15, 1983 to give him time to prepare it. After he had prepared the
will the notary public kept it safely hidden and locked in his drawer. The testator
and his witnesses returned on the appointed date but the notary public was out of
town so they were instructed by his wife to come back on August 9, 1983, and
which they did. Before the testator and his witnesses signed the prepared will, the
notary public explained to them each and every term thereof in Ilocano, a dialect
which the testator spoke and understood. He likewise explained that though it
appears that the will was signed by the testator and his witnesses on June 15, 1983,
the day when it should have been executed had he not gone out of town, the
formal execution was actually on August 9, 1983. He reasoned that he no longer
changed the typewritten date of June 15, 1983 because he did not like the
document to appear dirty. The notary public also testified that to his observation
the testator was physically and mentally capable at the time he affixed his
signature on the will.
The attesting witnesses to the will corroborated the testimony of the notary public,
and testified that the testator went alone to the house of spouses Eugenio and
Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him
to the house of Atty. Floro Sarmiento purposely for his intended will; that after
giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15,
1983; that they returned on June 15, 1983 for the execution of the will but were
asked to come back instead on August 9, 1983 because of the absence of the
notary public; that the testator executed the will in question in their presence
while he was of sound and disposing mind and that he was strong and in good
health; that the contents of the will was explained by the notary public in the
Ilocano and Tagalog dialect and that all of them as witnesses attested and signed
the will in the presence of the testator and of each other. And that during the
execution, the testators wife, Josefina was not with them.
The oppositor Leticia declared that Josefina should not inherit alone because aside
from her there are other children from the siblings of Placido who are just as
entitled to inherit from him. She attacked the mental capacity of the testator,
declaring that at the time of the execution of the notarial will the testator was
already 83 years old and was no longer of sound mind. She knew whereof she
spoke because in 1983 Placido lived in the Makati residence and asked Leticias
family to live with him and they took care of him. During that time, the testators
physical and mental condition showed deterioration, aberrations and senility. This
was corroborated by her daughter Mary Jane Ortega for whom Placido took a
fancy and wanted to marry.
Sifting through the evidence, the court a quo held that [t]he evidence adduced,
reduces the opposition to two grounds, namely:
Hence, this Petition.[7]

1. Non-compliance with the legal solemnities and formalities in the execution

and attestation of the will; and
Issues

Petitioner raises the following issues for our consideration:

2. Mental incapacity of the testator at the time of the execution of the will as he
was then in an advanced state of senility

I.
It then found these grounds extant and proven, and accordingly disallowed
probate.[5]
Whether or not the findings of the probate court are entitled to great respect.

II.

Whether or not the signature of Placido Valmonte in the subject will was procured
Ruling of the Court of Appeals by fraud or trickery, and that Placido Valmonte never intended that the instrument
should be his last will and testament.

Reversing the trial court, the appellate court admitted the will of Placido Valmonte
to probate. The CA upheld the credibility of the notary public and the subscribing III.
witnesses who had acknowledged the due execution of the will. Moreover, it held
that the testator had testamentary capacity at the time of the execution of the will.
It added that his sexual exhibitionism and unhygienic, crude and impolite
Whether or not Placido Valmonte has testamentary capacity at the time he
ways[6] did not make him a person of unsound mind.
allegedly executed the subject will.[8]
 procedures and requisites that must be satisfied for the probate of a
will.[10] Verily, Article 839 of the Civil Code states the instances when a will may
be disallowed, as follows:

In short, petitioner assails the CAs allowance of the probate of the will of Placido
Article 839. The will shall be disallowed in any of the following cases:
Valmonte.

(1) If the formalities required by law have not been complied with;

This Courts Ruling

(2) If the testator was insane, or otherwise mentally incapable of making a will,
at the time of its execution;
The Petition has no merit.

(3) If it was executed through force or under duress, or the influence of fear, or
threats;

Main Issue:

Probate of a Will (4) If it was procured by undue and improper pressure and influence, on the
part of the beneficiary or of some other person;

At the outset, we stress that only questions of law may be raised in a Petition for
Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, (5) If the signature of the testator was procured by fraud;
the evidence presented during the trial may be examined and the factual matters
resolved by this Court when, as in the instant case, the findings of fact of the
appellate court differ from those of the trial court.[9] (6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto.
The fact that public policy favors the probate of a will does not necessarily mean
that every will presented for probate should be allowed. The law lays down the
In the present case, petitioner assails the validity of Placido Valmontes will by
imputing fraud in its execution and challenging the testators state of mind at the
time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution
of the will, but maintains that the circumstances surrounding it are indicative of
the existence of fraud. Particularly, she alleges that respondent, who is the
testators wife and sole beneficiary, conspired with the notary public and the three
attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected
in the varying dates of the execution and the attestation of the will.
Petitioner contends that it was highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] Fil-American pensionado,[11] thus
casting doubt on the intention of respondent in seeking the probate of the will.
Moreover, it supposedly defies human reason, logic and common
experience[12] for an old man with a severe psychological condition to have
willingly signed a last will and testament.
We are not convinced. Fraud is a trick, secret device, false statement, or pretense,
by which the subject of it is cheated. It may be of such character that the testator
is misled or deceived as to the nature or contents of the document which he
executes, or it may relate to some extrinsic fact, in consequence of the deception
regarding which the testator is led to make a certain will which, but for the fraud,
he would not have made.[13]
We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution.[14] The burden to show otherwise
shifts to the proponent of the will only upon a showing of credible evidence of
fraud.[15] Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will.[16] That the testator was tricked into signing it was not
sufficiently established by the fact that he had instituted his wife, who was more
than fifty years his junior, as the sole beneficiary; and disregarded petitioner and
her family, who were the ones who had taken the cudgels of taking care of [the
testator] in his twilight years.[17]
Moreover, as correctly ruled by the appellate court, the conflict between the dates
appearing on the will does not invalidate the document, because the law does not
even require that a [notarial] will x x x be executed and acknowledged on the same
occasion.[18] More important, the will must be subscribed by the testator, as well
as by three or more credible witnesses who must also attest to it in the presence
of the testator and of one another.[19] Furthermore, the testator and the
witnesses must acknowledge the will before a notary public.[20] In any event, we
agree with the CA that the variance in the dates of the will as to its supposed
execution and attestation was satisfactorily and persuasively explained by the
notary public and the instrumental witnesses.[21]
Q What about the date when the testator and the three witnesses affixed their
respective signature on the first and second pages of exhibit C?

The pertinent transcript of stenographic notes taken on June 11, 1985, November A On that particular date when it was acknowledged, August 9, 1983.
25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are
reproduced respectively as follows:
Q Why did you not make the necessary correction on the date appearing on the
body of the document as well as the attestation clause?
Atty. Floro Sarmiento:
A Because I do not like anymore to make some alterations so I put it in my own
handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp.
8-10)
Q You typed this document exhibit C, specifying the date June 15 when the
testator and his witnesses were supposed to be in your office?

A Yes sir. Eugenio Gomez:

Q On June 15, 1983, did the testator and his witnesses come to your house? Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas
in the acknowledgement it is dated August 9, 1983, will you look at this document
A They did as of agreement but unfortunately, I was out of town.
and tell us this discrepancy in the date?

A We went to Atty. Sarmiento together with Placido Valmonte and the two
xxxxxxxxx witnesses; that was first week of June and Atty. Sarmiento told us to return on the
15th of June but when we returned, Atty. Sarmiento was not there.

Q The document has been acknowledged on August 9, 1983 as per

acknowledgement appearing therein. Was this the actual date when the document Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?
was acknowledged?
A We returned on the 9th of August and there we signed.
A Yes sir.
Q This August 9, 1983 where you said it is there where you signed, who were your
companions?
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)
A Yes, Sir.

Felisa Gomez on cross-examination:

Q For what purpose?

A Our purpose is just to sign the will.

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

Q Were you able to sign the will you mentioned?

xxxxxxxxx
A Yes sir. (tsn, October 21, 1987, pp. 4-5)[22]

Notably, petitioner failed to substantiate her claim of a grand conspiracy in the

A The reason why we went there three times is that, the first week of June was out
first time. We went there to talk to Atty. Sarmiento and Placido Valmonte about
the last will and testament. After that what they have talked what will be placed in
the testament, what Atty. Sarmiento said was that he will go back on the 15th of
June. When we returned on June 15, Atty. Sarmiento was not there so we were
not able to sign it, the will. That is why, for the third time we went there on August
9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)
commission of a fraud. There was no showing that the witnesses of the proponent
stood to receive any benefit from the allowance of the will. The testimonies of the
three subscribing witnesses and the notary are credible evidence of its due
execution.[23] Their testimony favoring it and the finding that it was executed in
accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.[24]

Josie Collado:
Capacity to Make a Will

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what
In determining the capacity of the testator to make a will, the Civil Code gives the
transpired?
following guidelines:
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Article 798. In order to make a will it is essential that the testator be of sound mind
at the time of its execution.
Article 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or shattered 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.
Article 800. The law presumes that every person is of sound mind, in the absence
of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making
his dispositions is on the person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was publicly known to be
insane, the person who maintains the validity of the will must prove that the
testator made it during a lucid interval.
According to Article 799, the three things that the testator must have the ability to
know to be considered of sound mind are as follows: (1) the nature of the estate to
be disposed of, (2) the proper objects of the testators bounty, and (3) the
character of the testamentary act. Applying this test to the present case, we find
that the appellate court was correct in holding that Placido had testamentary
capacity at the time of the execution of his will.
It must be noted that despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares in them and
even their locations. As regards the proper objects of his bounty, it was sufficient
that he identified his wife as sole beneficiary. As we have stated earlier, the
omission of some relatives from the will did not affect its formal validity. There
being no showing of fraud in its execution, intent in its disposition becomes
irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,[25] which
held thus:
"Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that degrees of
mental aberration generally known as insanity or idiocy, there are numberless
degrees of mental capacity or incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from disease of body, or from
age, will not render a person incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing mind, it is not
necessary that the mind be unbroken or unimpaired or unshattered by disease or
otherwise. It has been held that testamentary incapacity does not necessarily
require that a person shall actually be insane or of unsound mind."[26]
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of
the Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.
 replete with cases involving acrimonious conflicts between brothers and sisters
over successional rights. This case is no exception.

On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella A.

Guerrero and respondent Resurreccion A. Bihis, died at the Metropolitan Hospital
in Tondo, Manila.

On May 24, 1994, petitioner filed a petition for the probate of the last will and
testament of the decedent in Branch 95[2] of the Regional Trial Court of Quezon
City where the case was docketed as Sp. Proc. No. Q-94-20661.

The 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: the 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
FIRST DIVISION of the testatrix was procured by fraud and petitioner and her children procured
the will through undue and improper pressure and influence.
[ G.R. NO. 174144, April 17, 2007 ]

BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS, RESPONDENT.
DECISION
CORONA, J.:
The Scriptures tell the story of the brothers Jacob and Esau[1], siblings who fought
bitterly over the inheritance of their father Isaac's estate. Jurisprudence is also
In an order dated November 9, 1994, the trial court appointed petitioner as special
administratrix of the decedent's estate. Respondent opposed petitioner's
appointment but subsequently withdrew her opposition. Petitioner took her oath
as temporary special administratrix and letters of special administration were
issued to her.
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 of the Civil Code.
In a resolution dated July 6, 2001, the 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. The dispositive portion of the
resolution read:
WHEREFORE, in view of the foregoing, the Court finds, and so declares that it
cannot admit the last will and testament of the late Felisa Tamio de Buenaventura
to probate for the reasons hereinabove discussed and also in accordance with
Article 839 [of the Civil Code] which provides that if the formalities required by law
have not been complied with, the will shall be disallowed. In view thereof, the
Court shall henceforth proceed with intestate succession in regard to the estate of
the deceased Felisa Tamio de Buenaventura in accordance with Article 960 of the
[Civil Code], to wit: "Art. 960. Legal or intestate succession takes place: (1) If a
person dies without a will, or with a void will, or one which has subsequently lost
its validity, xxx."
SO ORDERED.[3]
Petitioner elevated the case to the Court of Appeals but the appellate court
dismissed the appeal and affirmed the resolution of the trial court.[4]
Thus, this petition.[5]
Petitioner admits that the will was 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.
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? It did not.
Article 806 of the Civil Code provides:
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.[6] This formal requirement is one of the indispensable
requisites for the validity of a will.[7] In other words, 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.
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.
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.[10] 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.[11]

Acknowledgment can only be made before a competent officer, that is, a lawyer
duly commissioned as a notary public.
In this connection, the relevant provisions of the Notarial Law provide:
SECTION 237. Form of commission for notary public. -The appointment of a notary
public shall be in writing, signed by the judge, and substantially in the following
form:
GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________
This is to certify that ____________, of the municipality of ________ in said
province, was on the ___ day of __________, anno Domini nineteen hundred and
_______, appointed by me a notary public, within and for the said province, for the
term ending on the first day of January, anno Domini nineteen hundred and _____.
_________________
Judge of the Court of
irst Instance[12] of said
Province
xxx xxx xxx
SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public in a
province shall be co-extensive with the province. The jurisdiction of a notary public
in the City of Manila shall be co-extensive with said city. No notary shall possess
authority to do any notarial act beyond the limits of his jurisdiction. (emphases
supplied)
A notary public's commission is the grant of authority in his favor to perform
notarial acts.[13] It is issued "within and for" a particular territorial jurisdiction and
the notary public's authority is co-extensive with it. In other words, 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. As this Court
categorically pronounced in Tecson v. Tecson:[14]
An acknowledgment taken outside the territorial limits of the officer's jurisdiction
is void as if the person taking it ware wholly without official character. (emphasis
supplied)
Since Atty. Directo was not a commissioned notary public for and in Quezon City,
he lacked the authority to take the acknowledgment of the testatrix and the
instrumental witnesses. In the same vein, the testatrix and her witnesses could not
have validly acknowledged the will before him. Thus, Felisa Tamio de
Buenaventura's last will and testament was, in effect, not acknowledged as
required by law.
Moreover, Article 5 of the Civil Code provides:
ART. 5. Acts executed against the provisions of mandatory or prohibitory laws shall
be void, except when the law itself authorizes their validity.
The violation of a mandatory or a prohibitory statute renders the act illegal and
void unless the law itself declares its continuing validity. Here, mandatory and
prohibitory statutes were transgressed in the execution of the alleged
"acknowledgment." The compulsory language of Article 806 of the Civil Code was
not complied with and the interdiction of Article 240 of the Notarial Law was
breached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo
were all completely void.
The Court cannot turn a blind eye to Atty. Directo's participation in the preparation,
execution and unlawful "acknowledgment" of Felisa Tamio de Buenaventura's will.
Had he exercised his notarial commission properly, the intent of the law to
effectuate the decedent's final statements[15] as expressed in her will would not
have come to naught.[16] Hence, Atty. Directo should show cause why he should
not be administratively sanctioned as a member of the bar and as an officer of the
court.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

Let a copy of this decision be furnished the Commission on Bar Discipline of the
Integrated Bar of the Philippines for investigation, report and recommendation on
the possible misconduct of Atty. Macario O. Directo.

SO ORDERED.

Puno, C.J., (Chairperson), Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.

.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.
Vicente R. Redor for petitioner.chanrobles virtual law library
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the
Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the
late Brigido Alvarado.chanroblesvirtualawlibrarychanrobles virtual law library
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein
he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at
the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz,
Laguna.chanroblesvirtualawlibrarychanrobles virtual law library
As testified to by the three instrumental witnesses, the notary public and by private respondent who were
present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent,
as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the
three instrumental witnesses and the notary public. The latter four followed the reading with their own
respective copies previously furnished them.chanroblesvirtualawlibrarychanrobles virtual law library
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th
day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa
Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some
dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will,
the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it
aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will)
and the notary public who followed the reading using their own copies.chanroblesvirtualawlibrarychanrobles
virtual law library
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by
private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.
5 Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to
make a will at the time of its execution due to senility and old age; that the will was executed under duress, or
influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of
the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick.chanroblesvirtualawlibrarychanrobles virtual law library
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate
Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the
appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and the
codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was
admittedly not complied with, probate of the deceased's last will and codicil should have been
denied.chanroblesvirtualawlibrarychanrobles virtual law library
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that
Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness,
the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to
the testator with each of the three instrumental witnesses and the notary public following the reading with their
respective copies of the instruments. The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its purpose of making known to the testator the
contents of the drafted will was served.chanroblesvirtualawlibrarychanrobles virtual law library
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his
"Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article
complied with?chanrobles virtual law library
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the
time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three
(3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his
first consultation with an eye specialist on
14 December 1977.chanroblesvirtualawlibrarychanrobles virtual law library
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art.
808 which reads:
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.
Petitioner contends that although his father was not totally blind when the will and codicil were executed, he
can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner
presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute
of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's
terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation. 8chanrobles virtual law library
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read
on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the
testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied
with.chanroblesvirtualawlibrarychanrobles virtual law library
We agree with petitioner in this respect.chanroblesvirtualawlibrarychanrobles virtual law library
Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will
and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to do
the actual reading for him.chanroblesvirtualawlibrarychanrobles virtual law library
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the
will himself (as when he is illiterate), 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 . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason
or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the
scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so confortably with his instructions.
Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether
Art. 808 had been complied with.chanroblesvirtualawlibrarychanrobles virtual law library
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of
the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The
purpose is to make known to the incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.chanroblesvirtualawlibrarychanrobles
virtual law library
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness,
it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not twice as Art. 808
requires.chanroblesvirtualawlibrarychanrobles virtual law library
Private respondent however insists that there was substantial compliance and that the single reading suffices
for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of
the will and codicil to Brigido, probate of the latter's will and codicil should have been
disallowed.chanroblesvirtualawlibrarychanrobles virtual law library
We sustain private respondent's stand and necessarily, the petition must be
denied.chanroblesvirtualawlibrarychanrobles virtual law library
This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of
the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege. 14chanrobles virtual law library
In the case at bar, private respondent 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. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the
will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with
respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado
already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his
conformity to the draft. 15chanrobles virtual law library
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the
codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legal requirement
intended for his protection was not followed strictly when such compliance had been rendered unnecessary by
the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of
his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has
been served.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11
April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is
Moreover, it was not only Atty. Rino who read the documents on immediately executory. Costs against petitioner.chanroblesvirtualawlibrarychanrobles virtual law library

5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the
will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the SO ORDERED.
contents of the document were of his own free will. Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses were persons known to the testator, one being his
physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since
childhood.chanroblesvirtualawlibrarychanrobles virtual law library

The spirit behind the law was served though the letter was not. Although there should be strict compliance with
the substantial requirements of the 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. 17chanrobles virtual law library

As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the
Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud,
to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws
on the subject should be interpreted in such a way as to attain these primordial 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 frustrative of
the testator's will, must be disregarded (emphasis supplied).