CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

TESTAMENTARY SUCCESSION WILLS ART. 783

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 this estate, to take effect after his death. (667a) CHARACTERISTICS OF A WILL ART. 783 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 this estate, to take effect after his death. (667a) ART. 839(3) The will shall be disallowed in any of the following cases: If it was executed through force or under duress, or the influence of fear, or threats; ART. 839(4) The will shall be disallowed in any of the following cases: If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; ART. 828 A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a) ART. 796 All persons who are not expressly prohibited by law may make a will. (662) ART. 797 Persons of either sex under eighteen years of age cannot make a will. (n) ART. 798 In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) ART. 777 The rights to the succession are transmitted from the moment of the death of the decedent. (657a) ART. 818 Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) ART. 784 The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a) ART. 785 The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) ART. 786 The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. (671a) ART. 787 The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) INTERPRETATION OF WILLS ART. 788 If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n) ART. 789 When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n) ART. 790 The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a) ART. 791 The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) ART. 792 The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n) ART. 793 Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) ART. 794 Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n) ART. 930 The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a) SOLLA VS. Dona Maria Sollas will reads as follows: ASCUENTA X x x I desire and hereby name Leandro Serrano, my grandson x (For purposes of the topic in the outline, the issue is as x x and I desire him to comply with the obligation to give or to deliver follows) to the parish priest of this town a sufficient sum of money necessary for a yearly novena and for an ordinary requiem mass for the 1 st 8 What are the orders and requests that Maria Solla wanted her days thereof and on the 9th or last day, a solemn requiem mass with grandson and his heirs to faithfully comply with? Did she want a vigil and a large bier (a stand on which a corpse or coffin is placed Leandros heirs to continue the distribution of legacies too? before burial defn not included in will ) for these masses are for the repose of my soul and those of my parents, husband, children, In order to determine the testators intention, the court should place and other relatives. I repeat and insist that my heir shall execute itself as near as possible in his position, Where the language of the and comply with this request without fail. And at the hour of his will is ambiguous or doubtful, the court should take into consideration death, he will insist that his heirs comply with all that I have the situation of the testator and the facts and circumstances here ordered. In the earlier part of the will, Dona Maria ordered surrounding him at the time the will was executed. Where the the distribution of legacies to her brothers, nephew, protges and testators intention is manifest from the context of the will and surrounding circumstances, but is obscured by inapt and inaccurate servant. modes of expression, the language will be subordinated to the intention, and in order to give effect to such intention, as far as Leandro Serranos will on the other hand reads as follows: I command my executor to put all of my property in order x x x I possible, the court may depart from the strict wording and read word order my son Simeon not to forget annually all the souls of the or phrase in a sense different from that which is ordinarily attributed to relatives of my grandmother and also of mine and to have a mass it, and for such purpose, may mould or change the language of the said on the 1st and 9th days of the yearly novena and that he erect a will, such as restricting its application or supplying words or phrases. 1st class bier x x x I sincerely desire that the property of my deceased grandmother, Capitana Maria (Solla) be disposed of in In this case, it clearly appearing that it was Maria Sollas intention to insist upon compliance of her order by Leandros heirs, that the latter conformity with all the provisions of her will and of mine.
BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

Leandro named his son Simeon Serrano, as executor of his will and that he directed him to put all of his property in order and to separate that which came from his deceased grandmother, Maria Solla Leandro took possession of the property left by his grandmother when she died on June 11, 1883. He continued in possession of the same until his death on August 5, 1921. The petitioners (grandnieces and grandnephews) now assail his continued possession. The respondent is the widow of Leandro Serrano.

should comply with the pious orders and that she was NOT REFERRING TO HER ORDER CONCERNING THE LEGACIES, the will should only be interpreted in so far as the pious orders are concerned (the prayers and masses)

LAW GOVERNING FORM AS TO TIME OF EXECUTION ART. 795 The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n) AS TO PLACE OF EXECUTION ART. 17 The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) ART. 810 A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. ART. 815 When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) ART. 816 The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) ART. 817 A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n) ART. 818 Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. ART. 819 Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a) IN RE WILL OF The new Civil Code under article 810 provides that a person may REV. ABADIA execute a holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed. However, at the time the will was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were not complied with because the back pages of the first two folios of the will were not signed by any one, not even by the testator and were not numbered, and as to the three front pages, they were signed only by the testator. The validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. Although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. From the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature can not validate void wills Should the will be allowed probate? NO The laws of a foreign jurisdiction do not prove themselves in Philippine Courts. The Philippine Islands are not authorized to take judicial notice of the laws of various States of the American Union. Such laws must be proved as facts. Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West

FLEUMER VS. HIX

Petitioner Fleumer is the special administrator of Edward Hixs estate. He appeals the decision of the CFI denying the probate of Hixs will. The will was alleged to be executed in West Virgina on Nov 3, 1925 by Hix, who then resided there. Thus, the laws of West Virginia govern. He submitted a copy of section 3868 of Acts 1882 as found in the West Virginia Code. But the CFI found that this is not

BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

compliance with the law.

Virginia. Nor was the extract of the law attested by the certificate of the officer having charge of the original under the seal of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed. It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not in the Philippine Islands. The only evidence introduced to establish this fact was a recital of the alleged will and the testimony of the petitioner. A will executed abroad need not be probated first in the country where it was executed before it may be probated here in the Philippines. The TC committed an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world and public policy and sound practice demand that at the risk of occasional errors judgment of courts should become final at some definite date fixed by law. Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct. But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime. It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950). WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

ESTATE GIBERSON DELA CERNA POTOT

OF VS.

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence. Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca). CFI - declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code. CA - reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Even though the law prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person, this form has long been sanctioned by use, and the same has continued to be used.

ESTATE OF RODRIGUEZ LAW GOVERNING CONTENT AS TO TIME ART. 2263 Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a) AS TO SUCCESSIONAL RIGHTS, ETC. ART. 16 Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a) ESTATE OF The testator' last acts cannot be made the criterion in determining
BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

CHRISTENSEN

whether oppositor was his child or not, for human frailty and parental arrogance may draw a person to adopt unnatural or harsh measures against an erring child or one who displeases just so the weight of his authority could be felt. In the consideration of a claim that one is a natural child, the attitude or direct acts of the person against whom such action is directed or that of his family before the controversy arose or during his lifetime if he predeceases the claimant, and not a single opportunity or an isolated occasions but as a whole, must be taken into account. The possession of such status is one of the cases that gives rise to the right, in favor of the child, of coumpulsary recognition. The Civil Code for 2 kinds of acknowledgement of a natural child: voluntary and compulsory. In the first instance, which may be effected in the record of birth, a will, a statement before a court of record or in an authentic writing (Art. 278,Civil Code), court intervention is very nil and not altogether wanting, whereas in the second, judicial pronouncement is essential. In cases of compulsory recognition, it would be sufficient that a competent court, after taking into account all the evidence on record, would declare that under any of the circumstances specified by Article 283 of the Civil Code, a child has acquired the status of a natural child of the presumptive parent and as such is entitled to all rights granted it by law, for such declaration is by itself already a judicial recognition of the paternity of the parent concerned which is her against whom the action is directed, are bound to respect. WHICH LAW MUST APPLY? TEXAS LAW OR PHILIPPINE LAW? It is not disputed that decedent was both a national of texas and domicile thereof at the time of his death. Even assuming Texas has a conflict of law rule providing that the domiciliary system should govern, the same would not result in a reference back(renvoi) to Phil law, but would still refer to Texas law. Nonetheless, if Texas has conflicts rule adopting the rule of situs theiry which calls for the application of the law of the place where properties are situated, renvois would arise, where the properties involved are found in the Phils. a. This is not correct. Congress had deleted the phrase notwithstanding the provisions of this and next preceding article when they incorporated Art 11 as Art17 while reproducing w/o substantial change 2nd par of Art 10 as Art 16. It is their purpose to make 2nd par of Art 16 a specific provision in itself which must be applied in Testate and Intestate successions. Congress added new provision under Art 1039 which decrees that capacity to succeed is to be governed by the NATIONAL LAW OF DECEDENT. Therefore, evident that whatever public policy or good customs may be involved in our system of legitimes, Congress not intended to extend the same to succession of foreign nationals. For it specifically chosen to leave, amount of successional rights, to decedents national law. Arguing that decedent intended that Phil law to govern Phil estate

ESTATE BELLIS

OF

AMOS

Amos Bellis Sr. Was a citizen of the Texas and of US; His 1st wifeMary Mallen whom he divorced and had 5 LEGITIMATE children; 2nd wife-Violet Kennedy who survived him & had 3 LEG children; HE had 3 ILLEGIT children-Amos Jr, Maria and Miriam Amos Sr. Executed a will in the Phils and directed that his distributable estate be divided: $240K-1st wife, $120K-3 IL children,the rest-7 children Amos died and his will was admitted to probate in CFI Manila Peoples Bank, as the executor, paid all the bequests: $240K to Mary in the form of shares of stock &$120 to 3 IL children. Executor submitted and filed its Executors Final Account, Report and Project of Partition wherein the remaining residuary estate was divided in to 7 equal parts Maria and Miriam opposed to the project of partition because they were deprived of their legitimes as IL children and therefore,compulsory heirs Lower court issued order overruling the oppositions and approving the executors final account relying upon Art 16, Civil Code it applied the national law of decedent which is Texas Law which did not provide for legitimes. Motion for recons being denied. Hence this appeal. Appellants argue that: a. their case falls under 3rd par of Art 17 in relation to Art 16 b. Amos executed 2 wills Texas estate and Phil estate

b.

As held in Miciano v. Brimo a provision in a foreigners will that his properties shall be distributed in accordance with Phil law is ILLEGAL and VOID for his national law cannot be ignored in regard to those matters that Art 10 now Art 16 states said national law should govern. Since intrinsic validity of the will and amount of successional rights are to be determined, under Texas law, Phil law on legititmes cannot be applied to the testacy. WHETHER THERE IS PRETERITION, A CAUSE TO ANNUL THE WILL BY THE DECEDENT? NO Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide: Art. 16 par. (2).

CAYETANO LEONIDAS

VS.

Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication [Rule 74 Section I] adjudicating unto himself the ownership of the entire estate of the deceased Adoracion Campos. 11 months after, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, which was allegedly executed in the US and

BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

for her appointment as administratrix of the estate of the deceased testatrix. She alleged that the testatrix was an American citizen at the time of her death and was a permanent resident thereof. She died in Manila while temporarily residing with her sister. In her will she nominated Wilfredo Barzaga of New Jersey as executor. Hermogenes claimed it was a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him. TC PROBATE Meanwhile, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court. The respondents moved to dismiss on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the respondent and her sisters, only remaining children and forced heirs. This was DENIED. The petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him. TESTAMENTARY CAPACITY AND INTENT

"However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." Art. 1039. "Capacity to succeed is governed by the law of the nation of the decedent." The law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger. Petition DISMISSED

WHO MAY MAKE A WILL? ART. 796 All persons who are not expressly prohibited by law may make a will. (662) ART. 797 Persons of either sex under eighteen years of age cannot make a will. (n) ART. 798 In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) ART. 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 unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) ART. 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. (n) ART. 801 Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) ART. 802 A married woman may make a will without the consent of her husband, and without the authority of the court. (n) ART. 803 A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. (n) SUPERVENING INCAPACITY OF TESTATOR ART. 801 Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) SOLEMNITIES OF WILLS KINDS OF WILLS ART. 804 Every will must be in writing and executed in a language or dialect known to the testator. ART. 810 A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. NOTARIAL WILLS GENERAL REQUIREMENTS FOR NOTARIAL WILLS ART. 804 Every will must be in writing and executed in a language or dialect known to the testator. SUROZA VS. WHETHER A WILL CAN BE ADMITTED TO PROBATE IF ON ITS HONRADO FACE IT IS VOID BECAUSE IT IS WRITTEN IN ENGLISH, A LANGUAGE NOT KNOWN TO THE ILLITERATE TESTATRIX, AND WHICH IS PROBABLY A FORGED WILL BECAUSE SHE AND THE ATTESTING WITNESSES DID NOT APPEAR BEFORE THE NOTARY AS ADMITTED BY THE NOTARY HIMSELF? The judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void. In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". That could only mean that the will was written in a language not known to the illiterate testatrix and,
BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed. The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix". SPECIFIC REQUIREMENTS FOR NOTARIAL WILLS ARTS. 805 Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) 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. (n) GARCIA VS. This is an appeal from disallowing the will of Antero Mercado. The WAS THE ATTESTATION CLAUSE DEFECTIVE? YES LACUESTA will is written in Ilocano and appears to have been signed by Atty. Florencio Javier who wrote the name of Antero Mercado, followed It was fatally defective for failing to state that Antero Mercado caused below by A ruego del testator and the name of Florentino Javier. Atty. Javier to write the testators name under his express direction as Antero Mercado is alleged to have written a cross immediately after required by section 618 of the Code of civil Procedure. Petitioners his name. theory that there is no need for such recital because the cross written is a sufficient signature must fail. We are not prepared to liken the The Court of Appeals ruled that the attestation failed to certify that mere sign of a cross to a thumbmark, and the reason is obvious. The the will was signed on all the left margins of the three pages; that cross cannot and does not have the trustworthiness of a thumbmark. after the signing of the name of the testator by Atty. Javier at the Appealed decision is affirmed. formers request said testator has written a cross at the end of his name and on the left margin of the three pages; that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other. BALONAN VS. A last will and testament was left by Anacleta Abellana. The will was WHETHER THE SIGNATURE OF DR. JUAN A. ABELLO ABOVE ABELLANA written in the Spanish language and consists of two (2) typewritten THE TYPEWRITTEN STATEMENT "POR LA TESTADORA pages, double space. The first page is signed by Juan Bello and ANACLETA ABELLANA . . ., CIUDAD DE ZAMBOANGA," COMPLY under his name appears typewritten "Por la testadora Anacleta WITH THE REQUIREMENTS OF LAW PRESCRIBING THE Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad MANNER IN WHICH A WILL SHALL BE EXECUTED? NO. de Zamboanga', and on the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso The name of the testatrix, Anacleta Abellana, does not appear written and Rafael Ignacio, at the bottom of which appears the signature of under the will by Abellana herself, or by Dr. Juan Abello. There is, T. de los Santos and below his signature is his official designation as therefore, a failure to comply with the express requirement in the law the notary public who notarized the said testament. On the first page that the testator must himself sign the will, or that his name be affixed on the left margin of the said instrument also appear the signatures thereto by some other person in his presence and by his express of the instrumental witnesses. On the second page, which is the last direction. page of said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the The old law as well as the new require that the testator himself sign left margin appears the signature of Juan Bello under whose name the will, or if he cannot do so, the testator's name must be written by appears handwritten the following phrase, "Por la Testadora some other person in his presence and by his express direction. Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." All this must be written by the witness signing at the request of the testator. Therefore, under the law now in force, the witness should have written at the bottom of the will the full name of the testator and his own name in one forms given above. He did not do so, however, and this is failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. WHETHER THERE WAS DUE EXECUTION OF THE WILL? YES. The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

NERA RIMANDO

VS.

A will was executed by Pedro Rimando. The main contention is based on the location of one of the subscribing witnesses at the time they signed the document: whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other

BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

subscribing witnesses in the act of attaching their signatures to the instrument.

TABOADA ROSAL

VS.

In the petition for probate filed with the respondent CFI, the petitioner attached the last will of Dorotea Perez. Written in the Cebuano-Visayan dialect, it consists of two pages. The first page contains the entire testamentary dispositions and is signed at the bottom by the testatrix alone and at the left hand margin by the 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 3 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 publication, the trial court commissioned the clerk of court to receive evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses, who testified on its genuineness and due execution. The trial court, thru then Judge Pamatian issued the order denying probate for want of a formality in its execution. The petitioner was also required to submit the names of the intestate heirs with their addresses so that they could be properly notified and could intervene in the summary settlement of the estate. Instead of complying, the petitioner filed a motion, ex parte praying for a 30-day period within which to deliberate on any step to be taken as a result of the disallowance. He also asked that the ten-day period to submit the names of intestate heirs with their addresses be held in abeyance. However, the motion for reconsideration together with the previous motion could not be acted upon by the Judge Pamatian due to his transfer. Then respondent Judge Rosal assumed. Meanwhile, the petitioner filed a motion for the appointment of special administrator. Subsequently, the new Judge denied all the motions.

The question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. FOR THE VALIDITY OF A FORMAL NOTARIAL WILL, DOES ARTICLE 805 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? Under Article 805, 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. 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. Insofar as the requirement of subscription is concerned, 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. Parenthetically, Judge Pamatian stated that were 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 to be the same will executed by the testatrix. There was no question of fraud or substitution behind the order. 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. Granted. The orders are set aside. IS THE MERE 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 A SUFFICIENT REASON TO DENY PROBATE? NO 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.

ICASIANO ICASIANO

VS.

Celso Icasiano filed a petition for the allowance and admission to probate the alleged will of Josefa Villacorte, deceased, and for his appointment as executor thereof. The lower court approved the petition. Natividad Icasiano, a daughter, opposed and petitioned to be the special administrator. The court issued an order appointing the Philippine Trust Company as special administrator. 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. Celso argues that 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, that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date a Notary Public; 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 a former governor of Bulacan, a judge, and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament two attorneys 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

BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

before whom the will was acknowledged by the testatrix and attesting witnesses, and also by the attorney who actually prepared the document. The original of the will consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3); but the duplicate copy is signed by the testatrix and her three attesting witnesses in each and every page. Witness Natividad, who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence. The oppositors contend that the signatures of the testatrix in the duplicate are not genuine, nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will. Agapita N. Cruz, the surviving spouse of the said deceased, opposed the allowance of the probate of the last will and testament of the late Valente Z. Cruz (husband) alleging that the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was executed without the testator having been fully informed of the contents thereof, particularly as to what properties he was disposing; and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament. Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco Paares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them

CRUZ VILLASOR

VS.

WAS THE SUPPOSED LAST WILL AND TESTAMENT OF VALENTE Z. CRUZ EXECUTED IN ACCORDANCE WITH LAW, PARTICULARLY ARTICLES 805 AND 806 OF THE NEW CIVIL CODE, THE FIRST REQUIRING AT LEAST THREE CREDIBLE WITNESSES TO ATTEST AND SUBSCRIBE TO THE WILL, AND THE SECOND REQUIRING THE TESTATOR AND THE WITNESSES TO ACKNOWLEDGE THE WILL BEFORE A NOTARY PUBLIC? NO The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow; to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For them he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805 requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for that purpose. In the circumstances, the law would not be duly observed. WHETHER THE DOCUMENTARY STAMP IS REQUIRED FOR VALIDITY. NO We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed". What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document. That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does not bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed thereto and cancelled." Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence. If the promissory note does not bear a documentary stamp, the court should have

GABUCAN MANTA

VS.

This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a thirty-centavo documentary stamp. The Court of First Instance of Camiguin in Special Proceeding No. 41 for the probate of the will of the late Rogaciano Gabucan, dismissed the proceeding because the requisite documentary stamp was not affixed to the notarial acknowledgment in the will and, hence, according to the Judge, it was not admissible in evidence, citing section 238 of the Tax Code, now section 250 of the 1977 Tax Code, which reads: SEC. 238. Effect of failure to stamp taxable document. An instrument, document, or paper which is required by law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any document subject to

BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

JAVELLANA LEDESMA

VS.

documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled. The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code. On two occasions (1950 and 1952), the CFI of Iloilo admitted to probate documents in the Visayan dialect as the testament and codicil duly executed by Dona Apolinaria Vda. de Javellana, with Ramon and Gloria Tabiana and Vicente Yap as witnesses. Dona Natea Ledesma, sister and nearest surviving relative of Apolinaria, appealed from the decision, insisting that said documents were not executed in conformity with law.

allowed plaintiff's tender of a stamp to supply the deficiency. The lack of the documentary stamp on a document does not invalidate such document.

1. 2. 3.

Whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; Whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and if so Whether the codicil was thereby rendered invalid and ineffective.

The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment appended to the codicil in Visayan. Unlike the testament, this Codicil was executed after the enactment of the new Civil Code, and therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at San Pablo Hospital, the same was signed and sealed by the notary public on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it. At any rate, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889, the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Art. 805 and 806 of the new Civil Code reveals that while testator and witnesses must sign in the presence of each other, all that is thereafter required is that every will must be acknowledged before a notary public by the testator and the witnesses i.e. that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly-acknowledged by the participants therein is no part of the acknowledgment itself nor the testamentary act. Hence, their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption. It is noteworthy that Art. 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day of occasion that it was executed. CERTIFICATION OF ACKNOWLEDGMENT NEED NOT BE SIGNED BY THE NOTARY IN THE PRESENCE OF THE TESTATOR AND THE WITNESSES. WHO ARE COMPETENT WITNESSES TO A WILL? ART. 820 Any person of sound mind and of the age of eighteen years or more, and not bind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. (n) ART. 821 The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. (n) ART. 824 A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n) GONZALES VS. Isabel Andres Gabriel died as a widow. Lutgarda Santiago and WHETHER OR NOT THE WILL IN QUESTION WAS EXECUTED CA Rizalina Gabriel Gonzales are nieces of the deceased, and that AND ATTESTED AS REQUIRED BY LAW? YES. Lutgarda, with her husband and children, lived with the deceased at the latters residence prior and up to the time of her death. Article 820 of the Civil Code provides the qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification The will was submitted to probate 2 months prior to the death of from being a witness to a win. Under the law, there is no mandatory Garcia. It was opposed by Rizalina Gabriel Gonzales, assailing the requirement that the witness testify initially or at any time during the document purporting to be the will of the deceased on the following trial as to his good standing in the community, his reputation for grounds: trustworthythiness and reliableness, his honesty and uprightness in 1. that the same is not genuine; and in the alternative order that his testimony may be believed and accepted by the trial 2. that the same was not executed and attested as required court. It is enough that the qualifications enumerated in Article 820 of by law as there was absolutely no proof that the three the Civil Code are complied with, such that the soundness of his mind instrumental witnesses were credible witness; can be shown by or deduced from his answers to the questions
BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

10

3. 4.

that, at the time of the alleged execution of the purported wilt the decedent lacked testamentary capacity due to old age and sickness; and in the second alternative That the purported will was procured through undue and improper pressure and influence on the part of the principal beneficiary, and/or of some other person for her benefit.

Lutgarda opposed the petition but then will was then disallowed by the court.

propounded to him, that his age is shown from his appearance, testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. There is no need that it must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party. In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution. The main qualification of a witness in the attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must be credible, that is to say, his testimony may be entitled to credence. Credible witnesses as used in the statute relating to wills, means competent witnesses that is, such persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the commission of crimes, or other cause excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in the particular suit. It is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested.

SUPERVENING INCOMPETENCY OF WITNESS ART. 822 If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n) COMPETENCY OF INTERESTED WITNESS ART. 823 If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n) SPECIAL REQUIREMENTS FOR DEAF, DEAF-MUTE & BLIND TESTATORS ART. 807 If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. 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. (n) GARCIA VS. Gliceria Avelino del Rosario died unmarried in the City of Manila on WHETHER THE REQUISITES OF ART. 808 WERE COMPLIED VASQUEZ 2 September 1965, leaving no descendants, ascendants, brother or WITH? NO. sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate consisting mostly of real The declarations in court of Dr. Jesus V. Tamesis very material and properties. illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when Doa Gliceria del The testatrix, Gliceria A. del Rosario, during her lifetime, executed Rosario saw him for consultation on 11 March 1960 he found her left two wills: one on 9 June 1956 consisting of 12 pages and written in eye to have cataract (opaque lens), and that it was "above normal in Spanish, a language that she knew and spoke, witnessed by pressure", denoting a possible glaucoma, a disease that leads to Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, blindness. and acknowledged before notary public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in PROBATE OF WILLS; GROUND FOR DISALLOWANCE; Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, TESTATRIX'S DEFECTIVE EYESIGHT AS UNABLING HER TO and Francisco Lopez and acknowledged before notary public READ THE PROVISIONS OF LATER WILL. The foregoing Remigio M. Tividad. testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of the actual condition of her On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a eyesight from August, 1960 up to 1963, fully establish the fact that niece of the deceased, petitioned in the CFI of Manila for probate of notwithstanding the operation and removal of the cataract in her left the alleged last will and testament of Gliceria A. del Rosario, eye and her being fitted with aphakic lens (used by cataract patients), executed on 29 December 1960, and for her appointment as special her vision remained mainly for viewing distant objects and not for administratrix of the latter's estate, said to be valued at about reading print. Thus, the conclusion is inescapable that with the P100,000.00, pending the appointment of a regular administrator condition of her eyesight in August, 1960, and there is no evidence thereof. that it had improved by 29 December 1960, Gliceria del Rosario was incapable of reading, and could not have read the provisions of the will Called to testify on the due execution of the 1960 will, instrumental supposedly signed by her on 29 December 1960. It is worth noting witnesses Decena, Lopez and Rosales uniformly declared that they that the instrumental witnesses stated that she read the instrument were individually requested by Alfonso Precilla (the late husband of "silently" petitioner special administratrix) to witness the execution of the last which is a conclusion and not a fact. will of Doa Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT the afternoon of 29 December 1960; that the testatrix at the time BAR. Upon its face, the testamentary provisions, the attestation was apparently of clear and sound mind, although she was being clause and acknowledgment were crammed together into a single aided by Precilla when she walked; that the will, which was already sheet of paper, apparently to save on space. Plainly, the testament
BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

11

prepared, was first read "silently" by the testatrix herself before she signed it; that he three witnesses thereafter signed the will in the presence of the testatrix and the notary public and of one another. The oppositors-appellants in the present case maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.

was not prepared with any regard for the defective vision of Da. Gliceria, the typographical errors remained uncorrected thereby indicating that the execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of one's worldly possessions should be embodied in an informal and untidy written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so. EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself 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. NOT COMPLIED WITH IN INSTANT CASE. Where as in the 1960 will there is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines that "if the testator is blind, the will shall be read to him twice," have not been complied with, the said 1960 will suffer from infirmity that affects its due execution.

SUBSTANTIAL COMPLIANCE OF REQUIREMENTS FOR NOTARIAL WILLS 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 proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n) HOLOGRAPHIC WILLS GENERAL REQUIREMENTS FOR HOLOGRAPHIC WILLS ART. 804 Every will must be in writing and executed in a language or dialect known to the testator. (n) SPECIFIC REQUIREMENTS FOR HOLOGRAPHIC WILLS ART. 810 A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. ART. 812 In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n) ART. 813 When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) ROXAS VS. DE After the death of spouses Andres G. de Jesus and Bibiana Roxas WHETHER OR NOT THE DATE "FEB./61" APPEARING ON THE JESUS de Jesus, petitioner Simeon R. Roxas, the brother of the deceased HOLOGRAPHIC WILL OF THE DECEASED BIBIANA ROXAS DE Bibiana Roxas de Jesus filed a special Proceeding entitled "In the JESUS IS A VALID COMPLIANCE WITH THE ARTICLE 810 OF Matter of the Intestate Estate of Andres G. de Jesus and Bibiana THE CIVIL CODE? YES Roxas de Jesus". Ruling: YES. As a general rule, the "date" in a holographic Will should On March 26, 1973, petitioner Simeon R. Roxas was appointed include the day, month, and year of its execution. However, when as administrator. After Letters of Administration had been granted to the in the case at bar, there is no appearance of fraud, bad faith, undue petitioner, he delivered to the lower court a document purporting to influence and pressure and the authenticity of the Will is established be the holographic Will of the deceased Bibiana Roxas de Jesus. and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil On May 26, 1973, respondent Judge Jose Colayco set the hearing Code, probate of the holographic Will should be allowed under the of the probate of the holographic Will on July 21, 1973. principle of substantial compliance. Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-will addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61" and states: "This is my will which I want to be respected altho it is not written by a lawyer. . . " WILLS AND SUCCESSION; MANNER OF EXECUTION OF WILLS; DEPARTURE FROM STRICT STATUTORY REQUIREMENTS; LIBERAL TREND FAVORED. This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy. PREVAILING POLICY. Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be admitted to probate (Rey v. Cartagena, 56 Phil. 282). If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. "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 . . ." In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same
BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.

CIVIL LAW REVIEW: TESTAMENTARY SUCCESSION

12

day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case. DATE IN A HOLOGRAPHIC WILL; WILL ALLOWED TO PROBATE UNDER THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE. We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wills and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61" appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained. As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance. WHETHER THE WILL IS VOIDED OR REVOKED? YES SUCCESSION; HOLOGRAPHIC WILL; EFFECT OF ALTERATIONS THEREIN NOT AUTHENTICATED BY FULL SIGNATURE OF TESTATRIX; CASE AT BAR. Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature. The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude.

KALAW RELOVA

VS.

Respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968. The holographic Will reads in full as follows: My Last will and Testament In the name of God, Amen. I, Natividad K. Kalaw, Filipino, 63 years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament. 1. It is my will that I be buried in the cemetery of the catholic church of Lipa City. In accordance with the rites of said Church, and that my executrix hereinafter named provide and erect at the expense of my state a suitable monument to perpetuate my memory. 2. I give, device and bequeath all my property real and personal to my beloved brother Gregorio K. Kalaw to have and to hold the same as his property absolutely and unconditionally. 3. I hereby appoint my said brother Gregorio K. Kalaw as sole executive of this my last will and testament, and it is my will that said executrix be exempted from filing a bond. In witness where of I have hereunto set my hand this 24th day of Dec., 1968. Natividad K. Kalaw Testatrix Witnesses: Lydia S. Recio The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were made by the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition.

BALANE, BERNARDINO, GALVAN, LEYNES, SANTOS, ROCAMORA, VALDEZ Unauthorized distribution & non-submission shall merit expulsion.