CUEVAS VS ACHACOSO 88 PHIL 730

On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In said will the deceased instituted as his
heirs, Valentina Cuevas, his widow and Rosario Asera Venzon, his daughter. He named therein his widow as
executrix of the will. On February 1, 1946, Valentina Cuevas filed a petition for the probate of said will.
On May 10, 1946, one Pilar Achacoso filed an alternative petition for the probate of a previous will executed by the
deceased praying therein that, if the will submitted by the widow be rejected, the other will be admitted to probate
in lieu thereof. In the previous will there are other heirs instituted, among them petitioner Pilar Achacoso. Pilar
Achacoso objected to the probate of the second will executed by the deceased on October 10, 1945. After due
hearing, the court found that the latter will was executed in accordance with law and ordered that it be admitted to
probate. Pilar Achacoso took the case to the Court of Appeals, but the latter certified it to this Court on the ground
that it involves purely questions of law.
The main error assigned refers to the alleged lack of attestation clause in the will under consideration,
or to the fact that, if there is such attestation clause, the same has not been signed by the
instrumental witnesses, but by the testator himself, and it is claimed that this defect has the effect of
invalidating the will.
The will in question, after reciting in separate paragraphs, and under correlative numbers, the provisions of the will,
winds up with the following clause:
IN WITNESS WHEREOF, I sign this testament or last will in the municipality of Iba, Zambales, Philippines, this 10th
day of October, 1945, in the presence of the three witnesses, namely Dr. Nestorio Trinidad, Don Baldomero
Achacoso, and Mr. Proceso Cabal as instrumental witnesses to my signing; this testament is written in three (3)
sheets marked by letter "A", "B" and "C" consecutively on top of each sheet and upon my request and in my
presence and also in the presence of each of the aforesaid instrumental witnesses, they also signed this testament
already reffered to.
I hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as well as the testament
itself have been signed by me as also each of the witnesses has also signed in my presence and in the presence of
each other.
(Sgd.) JOSE VENZON
Witnesses:
(Sgd.) NESTORIO TRINIDAD
(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.
The clause above quoted is the attestation clause reffered to in the law which, in our opinion,
substantially complies with its requirements. The only apparent anomaly we find is that it appears to be an
attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly, as to
affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures
of the three instrumental witnesses.
"Instrumental witness, as define by Escriche in his Diccionario Razonado de Legislacion y Jurisprudencia, Vol. 4, p.
1115, is one who takes part in the execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807, 809).
An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper
execution of the will. The fact that the three instrumental witnesses have signed the will immediately
under the signature of the testator, shows that they have in fact attested not only to the genuineness
of his signature but also to the due execution of the will as embodied in the attestation clause.
As was said in one case, "the object of the solemnities surrounding the execution of the 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 intrepreted in such a way
as to attain this premordial 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."
a.

Witnesses to wills

1.

Who are competent

Art. 820.

Any person of sound mind and of the age of eighteen years or more , and not blind, 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)

GONZALES VS CA 90 SCRA 183

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85),
having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and
children, lived with the deceased at the latters residence prior an- d up to the time of her death.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as
required by law when there was absolutely no proof that the three instrumental witnesses were credible witness
In fine, We state the rule that the instrumental witnesses in Order to be competent must be shown to have
the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article
821 and for their testimony to be credible, that is worthy of belief and entitled to credence, 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.
CRUZ VS VILLASOR 54 SCRA 31
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 80 be 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 or that purpose. In the circumstances, the law would not be duly in observed.
b.

Holographic wills

1.

In general

Art. 804.
2.

Every will must be in writing and executed in a language or dialect known to the testator. (n)
Specific requirements

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. (678, 688a)

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)

Art. 814.

In case of any insertion, cancellation, erasure or alteration in a holographic will, the

testator must authenticate the same by his full signature. (n)

Lee vs Tambago 544 SCRA 393 (2008)

FACTS:
1.
Complainant, Manuel L. Lee, charged respondent, Atty. Regino B. Tambago,
with violation of Notarial Law and the Ethics of the legal profession for notarizing a
wil.
2.
The will was alleged to be spurious in nature in containing forged signatures of
his father, the decedent, Vicente Lee Sr. and two other witnesses, which were also
questioned for the absence of notation of the Residence Certificates that are known
to be a copy of their respective voter's affidavit.
3.
In addition to such, the contested will was executed and acknowledged before
respondent on June 30, 1965 but bears a Residence Certificate by the Testator dated
January 5, 1962, which was never submitted for filing to the Archives Division of the
Records Management and Archives Office of the National Commission for Culture
and Arts (NCAA).
4.
Respondent refuted that all allegations were falsely given because he
allegedly exercised his duties as Notary Public with due care and with due regards
to the provision of existing law and had complied with elementary formalities in the
performance of his duties and that the complaint was filed simply to harass him
based on the result of a criminal case against him filed by complainant in the
Ombudsman that did not prosper.
5.
However, he did not deny the contention of non-filing a copy to the Archives
Division of NCAA.
6.
In a resolution, the court referred the case to the IBP and the decision of which
found respondent guilty of violations of pertinent provisions of the old Notarial Law
as found in the Administrative Code. The violation constituted an infringement of
legal ethics, particularly Canon 1 and Rule 1.01of the Code of Professional
Responsibility (CPR).
7.
Thus, the investigating commissioner of the IBP Commission on Bar Discipline
recommended the suspension of respondent for a period of three months.
8.
The IBP Board of Governors adopted and approved, with modifications, the
recommendation of the CBD and ruled that Atty. Tambago is suspended from the
practice of law for one year and his notarial commission is Revoked and Disqualified
from reappointment as Notary Public for two years.

ISSUE: Whether or not Atty. Tambago acted negligently in exercising his duties as
Notary Public.

RULING: No. Respondent, as notary public, evidently failed in the performance of

the elementary duties of his office. The Court finds 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 and his perpetual disqualification to be
commissioned as a notary public.
The Civil Code requires that a will must be acknowledged before a notary public by
the testator and the witnesses. 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.
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. The acknowledgment in a notarial
will has a two-fold purpose: (1) to safeguard the testators 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 testators old residence certificate in the same acknowledgment was a clear
breach of the law. These omissions by respondent invalidated the will.
Notaries public must observe with utmost care 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.
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.
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.
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 Court and Canon 1 and Rule 1.01of the CPR.

Guerrero vs Bihis
G.R. No. 174144

April 17, 2007

Facts:
Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and respondent
Resurreccion A. Bihis, died. Guerrero filed for probate in the RTC QC. Respondent Bihis
opposed her elder sisters 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 of the testatrix was procured by fraud and petitioner and
her children procured the will through undue and improper pressure and influence. 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 testatrixs
residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a
commissioned notary public for and in Caloocan City.
ISSUE:
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?
HELD:
No. One of the formalities required by law in connection with the execution of a notarial will is
that it must be acknowledged before a notary public by the testator and the witnesses. This
formal requirement is one of the indispensable requisites for the validity of a will. 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.
The Notarial law provides: 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.
Sine Atty. Directo was not a commissioned notary public for and in Quezon City, he lacked the
authority to take the acknowledgment of the testratix and the instrumental witnesses. In the
same vain, the testratix and the instrumental witnesses could not have validly acknowledged the
will before him. Thus, Felisa Tamio de Buenaventuras last will and testament was, in effect, not
acknowledged as required by law.

Federico Azaola v. Cesario Singson

G.R. No. L-14003; August 5, 1960
FACTS:
When Fortunata Vda de Yance died, Francisco Azaola filed a petition for the
probate of the formers will, whereby Maria Milgaros Azaola was made the
sole heir as against the nephew of the deceased Cesario Singson. Francisco
witnessed that one month before the death of the testator, the same was
handed to him and his wife.
The opposition to the probate was on the ground that (1) the execution of
the will was procured by undue and improper pressure and influence on the
part of the petitioner and his wife, and (2) that the testatrix did not seriously
intend the instrument to be her last will, and that the same was actually
written either on the 5th or 6th day of August 1957and not on November 20,
1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare that
the will and the signature are in the writing of the testatrix, the probate
being contested.
ISSUE/S:
1. WON the proponent was bound to produce more than one witness
2. WON 811 is mandatory
HELD:
1. No. Since the authenticity of the will was not being contested. But even if
the genuineness of the holographic will were contested, we are of the
opinion that Article 811 of our present Civil Code cannot be interpreted as to
require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a holographic
will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite qualifications
is a matter beyond the control of the proponent.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments. But it cannot be
ignored that the requirement can be considered mandatory only in the case
of ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present
(Art. 10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words if the Court deem it necessary, which reveal that what the law
deems essential is that the Court should be convinced of the wills
authenticity. Where the prescribed number of witnesses is produced and the
court is convinced by their testimony that the ill is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent

witness is available, or none of those produced is convincing, the Court may

still, and in fact it should, resort to handwriting experts. The duty of the
Court, in fine, is to exhaust all available lines of inquiry, for the state is as
much interested as the proponent that the true intention of the testator be
carried into effect.
2. The rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of justice
would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
Azuela v. Court of Appeals G.R. No. 122880 (2006)
FACTS:
1.
Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia
E. Igsolo. However, this was opposed by Geralda Castillo, who was the attorney-infact of the 12 legitimate heirs of the decedent. According to her, the will was
forged, and imbued with several fatal defects. Particularly, the issue relevant in this
subject is that the will was not properly acknowledged. The notary public, Petronio Y.
Bautista, only wrote Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila.
ISSUE: Whether or not the will is fatally defective as it was not properly
acknowledged before a notary public by the testator and the witnesses as required
by Article 806 of the Civil Code.
RULING: Yes, the will is fatally defective. By no manner of contemplation can those
words be construed as an acknowledgment.
An acknowledgement is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. It involves an
extra step undertaken whereby the signore actually declares to the notary that the
executor of a document has attested to the notary that the same is his/her own free
act and deed.
It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to by
the executor.
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.

VS DE JESUS 134 SCRA 245

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 letterwin 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 win which I want to
be respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and
Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of
their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and
positively Identified her signature. They further testified that their deceased mother understood English, the
language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it
was executed through force, intimidation and/or under duress, undue influence and improper
pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended
the said Will to be her last Will and testament at the time of its execution.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana
Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads:
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.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance
with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution.
We agree with the petitioner.
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
The underlying and fundamental objectives permeating the provisions of the law on wigs 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 sufficien safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
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.

ARTICLE 810
Roxas v. De Jesus
134 SCRA 245 | Lantion

FACTS:
Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. for partition of the
estate of the deceased and also delivered the holographic will of the deceased.
Simeon stated that he found a notebook belonging to deceased, which contained a
letter-will entirely written and signed in deceaseds handwriting. The will is dated
"FEB./61 " and states: "This is my will which I want to be respected although it is not
written by a lawyer. Roxas relatives corroborated the fact that the same is a
holographic will of deceased, identifying her handwriting and signature.
Respondent opposed probate on the ground that it such does not comply with
Article 810 of the CC because the date contained in a holographic will must signify
the year, month, and day.
ISSUE:
W/N the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana
Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code.
HELD:
Valid date.

This will not be the first time that this Court departs from a strict and
literalapplication of the statutory requirements regarding the due execution of Wills.
The underlying and fundamental objectives permeating the provisions of the law
wills 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. 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.
In Abangan v. Abanga 40 Phil. 476, we ruled 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 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 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.

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 oppositorrespondent 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.

Labrador v. Court of Appeals G.R. No. 83843-44; April 5, 1990

Facts: Melecio Labrador left behind a parcel of land. He executed a holo will. His son
Sagrado filed a petition for the probate of hte alleged holo will of Melecio. Jesus and
Gaudencio(also sons) filed an opposition to the petition on the gound that the will
has been extinguished or revoked by implication of law, alleging that before
Melecio's death, testator executed a DOS, transferring and conveying in favor or
oppositors the subject parcel of land. Jesus sold hte land to Navat. Sagrado filed for
the annulment of the sale. The court allowed the probate of the will and declaring

null and void the DOS.The CA modified the judgment by denying the allowance of
the probate of the will for being undated.
Issue: WON the will of Melecio Labrador is dated, in accordance with Art. 810 of the
NCC.
Ruling: Yes.
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit. The will has been
dated in the hand of the testator himself in perfect compliance with Article 810. The
law does not specify a particular location where the date should be placed in the
will. The only requirements are that the date be in the will itself and executed in the
hand of the testator.
Respondents claim that the date 17 March 1968 in the will was when the testator
and his beneficiaries entered into an agreement among themselves about "the
partitioning and assigning the respective assignments of the said fishpond," and
was not the date of execution of the holographic will; hence, the will is more of an
"agreement" between the testator and the beneficiaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will as "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." Respondents are in error. The intention to
show 17 March 1968 as the date of the execution of the will is plain from the tenor
of the succeeding words of the paragraph. As aptly put by petitioner, the will was
not an agreement but a unilateral act of Melecio Labrador who plainly knew that
what he was executing was a will. The act of partitioning and the declaration that
such partitioning as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate property to be disposed
of and of the character of the testamentary act as a means to control the
disposition of his estate.
Federico Azaola v. Cesario Singson
G.R. No. L-14003; August 5, 1960

FACTS:
When Fortunata Vda de Yance died, Francisco Azaola filed a petition for the probate
of the formers will, whereby Maria Milgaros Azaola was made the sole heir as
against the nephew of the deceased Cesario Singson. Francisco witnessed that one
month before the death of the testator, the same was handed to him and his wife.

The opposition to the probate was on the ground that (1) the execution of the will
was procured by undue and improper pressure and influence on the part of the
petitioner and his wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually written either on the
5th or 6th day of August 1957and not on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested.

ISSUE/S:
1. WON the proponent was bound to produce more than one witness
2. WON 811 is mandatory

HELD:
1. No. Since the authenticity of the will was not being contested. But even if the
genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present Civil Code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of witness possessing
the requisite qualifications is a matter beyond the control of the proponent.

It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was derived from
the rule established for ordinary testaments. But it cannot be ignored that the
requirement can be considered mandatory only in the case of ordinary testaments,
precisely because the presence of at least three witnesses at the execution of
ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (Art. 10), and the rule requiring production
of three witnesses must be deemed merely permissive if absurd results are to be
avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words
if the Court deem it necessary, which reveal that what the law deems essential is
that the Court should be convinced of the wills authenticity. Where the prescribed
number of witnesses is produced and the court is convinced by their testimony that
the ill is genuine, it may consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting experts.
The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state
is as much interested as the proponent that the true intention of the testator be
carried into effect.

2. The rule of the first paragraph of Article 811 of the Civil Code is merely directory
and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been
called upon to construe the import of said article, the interest of justice would be
better served, in our opinion, by giving the parties ample opportunity to adduce
additional evidence, including expert witnesses, should the Court deem them
necessary.

Codoy
312 SCRA 333

v.

Calugay

FACTS:
On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees
and legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed
a petition for probate of the said will. They attested to the genuineness and due
execution of the will on 30 August 1978.
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that the
will was a forgery and that the same is even illegible. They raised doubts as regards the
repeated appearing on the will after every disposition, calling the same out of the
ordinary. If the will was in the handwriting of the deceased, it was improperly procured.
Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence.
The first witness was the clerk of court of the probate court who produced and identified
the records of the case bearing the signature of the deceased.
The second witness was election registrar who was made to produce and identify the
voters affidavit, but failed to as the same was already destroyed and no longer available.

The third, the deceaseds niece, claimed that she had acquired familiarity with the
deceaseds signature and handwriting as she used to accompany her in collecting rentals
from her various tenants of commercial buildings and the deceased always issued
receipts. The niece also testified that the deceased left a holographic will entirely
written, dated and signed by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate proceedings of
her late husband, who said that the signature on the will was similar to that of the
deceased but that he can not be sure.
The fifth was an employee of the DENR who testified that she was familiar with the
signature of the deceased which appeared in the latters application for pasture permit.
The fifth, respondent Evangeline Calugay, claimed that she had lived with the deceased
since birth where she had become familiar with her signature and that the one
appearing on the will was genuine.
Codoy and Ramonals demurrer to evidence was granted by the lower court. It was
reversed on appeal with the Court of Appeals which granted the probate.
ISSUE:
1. W/N Article 811 of the Civil Code, providing that at least three witnesses explicitly
declare the signature in a contested will as the genuine signature of the testator, is
mandatory or directory.
2. Whether or not the witnesses sufficiently establish the authenticity and due execution
of the deceaseds holographic will.
HELD:
1. YES. The word shall connotes a mandatory order, an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word
shall, when used in a statute, is mandatory.
In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of the
deceased and the evil to be prevented is the possibility that unscrupulous individuals
who for their benefit will employ means to defeat the wishes of the testator.
The paramount consideration in the present petition is to determine the true intent of
the deceased.
2. NO. We cannot be certain that the holographic will was in the handwriting of the
deceased.
The clerk of court was not presented to declare explicitly that the signature appearing in
the holographic will was that of the deceased.

The election registrar was not able to produce the voters affidavit for verification as it
was no longer available.
The deceaseds niece saw pre-prepared receipts and letters of the deceased and did not
declare that she saw the deceased sign a document or write a note.
The will was not found in the personal belongings of the deceased but was in the
possession of the said niece, who kept the fact about the will from the children of the
deceased, putting in issue her motive.
Evangeline Calugay never declared that she saw the decreased write a note or sign a
document.
The former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
(As it appears in the foregoing, the three-witness requirement was not complied with.)
A visual examination of the holographic will convinces that the strokes are different
when compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in support of their
opposition.
The object of 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 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 the
right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the
will of the testator, which is why if the holographic will is contested, the law requires
three witnesses to declare that the will was in the handwriting of the deceased.
Article 811, paragraph 1. provides: In the probate of a holographic will, it shall be
necessary that at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such witnesses shall be required.
The word shall connotes a mandatory order, an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word
shall, when used in a statute, is mandatory.
Eugenia Codoy v. Evangeline Calugay

FACTS: Calugay, Salcedo and Patigas, devisees and legatees of the holo will of the
deceased Matilde Seno filed with the RTC of Misamis Oriental, a petition for probate
of the holo will of the deceased. Codoy and Ramonal filed an opposition ot the
petition for probate, alleging that the holographic will was a forgery. Petitioners
argued that the repeated dates incorporated or appearing on will after every
disposition is out of the ordinary. If the deceased was the one who executed the will,
and was not forced, the dates and the signature should appear at the bottom after
the dispositions, as regularly done and not after every disposition. Pets filed a
demurrer. The TC granted the demurrer. The CA reversed the TCs decision.
Issues: WON the provisions of Article 811 are permissive or mandatory.
Ruling: Yes. The word "shall" connotes a mandatory order. We have ruled that "shall"
in a statute commonly denote an imperative obligation and is inconsistent with the
idea of discretion and that the presumption is that the word "shall," when used in a
statute is mandatory.
We cannot eliminate the possibility of a false document being adjudged as the will
of the testator, which is why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the handwriting of the deceased. The
will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. There was no
opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The
only chance at comparison was during the cross-examination of Ms. Binanay when
the lawyer of petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic will and she is
not a handwriting expert. Even the former lawyer of the deceased expressed doubts
as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There were
uneven strokes, retracing and erasures on the will. Comparing the signature in the
holographic will and the signatures in several documents such as the application
letter for pasture permit and a letter the strokes are different. In the letters, there
are continuous flows of the strokes, evidencing that there is no hesitation in writing
unlike that of the holographic will. We, therefore, cannot be certain that ruling
holographic will was in the handwriting by the deceased.

FAUSTO E. GAN v. ILDEFONSO YAP

G.R. No. L-12190
August 30, 1958
FACTS:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in

the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan,

and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila
court of first instance with a petition for the probate of a holographic will
allegedly executed by the deceased.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her
lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R.
San Jose, Judge, refused to probate the alleged will. A seventy-page motion
for reconsideration failed. Hence this appeal.
ISSUE:
WON a holographic will be probated upon the testimony of witnesses who
have allegedly seen it and who declare that it was in the handwriting of the
testator?
HELD:
NO. The court ruled that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The loss of the holographic
will entails the loss of the only medium of proof. Even if oral testimony were
admissible to establish and probate a lost holographic will, we think the
evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that clear and distinct proof
required by Rule 77, sec. 6. 11.
Rodelas v. Aranza
119 SCRA 16 | Nieves

FACTS:
Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testamentary in her favor.

Aranza, et al. filed a MTD on the grounds of:

1. Rodelas was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;

2. the copy of the alleged holographic will did not contain a disposition of property
after death and was not intended to take effect after death, and therefore it was not
a will, it was merely an instruction as to the management and improvement of the
schools and colleges founded by the decedent;

3. the hollographic will itself, and not an alleged copy thereof, must be produced,
otherwise it would produce no effect because lost or destroyed holographic wills
cannot be proved by secondary evidence unlike ordinary wills

4. the deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.

MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.

The CFI set aside its order and dismissed the petition for the probate of the will
stating that in the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held
that 'in the matter of holographic wills the law, it is reasonable to suppose, regards
the document itself as the material proof of authenticity of said wills. And that the
alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla
died on May 13, 1976. The lapse of more than 14 years from the time of the
execution of the will to the death of the decedent and the fact that the original of
the will could not be located shows to that the decedent had discarded the alleged
holographic will before his death.

Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et al.
moved to forward the case to the SC as it involves a question of law not of fact.

ISSUE:
W/N a holographic will which was lost or cannot be found can be proved by means
of a photostatic copy.

HELD:

If the holographic will has been lost or destroyed and no other copy is available, the
will cannot be probated because the best and only evidence is the handwriting of
the testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.

But, a photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made by the probate court with the standard writings of
the testator. The probate court would be able to determine the authenticity of the
handwriting of the testator.

In the case of Gan vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.

The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of
said decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar means,
if any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court,"

KALAW VS RELOVA 132 SCRA 237

On September 1, 1971, private 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 63years 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'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of
said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
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 reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must
authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could
be the sole heir thereunder.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will
litem 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.1 Manresa gave an Identical commentary when he said
"la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4
de Abril de 1895."
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,

Ajero
236 SCRA 488

v.

CA

FACTS:
The
holographic
will
of Annie San
was
submitted
for
probate.
Private respondent opposed the petition on the grounds that: neither the testaments
body nor the signature therein was in decedents handwriting; it
contained alterations and corrections which were not duly signed by decedent; and, the
will was procured by petitioners through improper pressure and undue influence.
The petition was also contested by Dr. Ajero with respect to the disposition in the will of
a house and lot. He claimed that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
However, the trial court still admitted the decedents holographic will to probate.
The trial court held that since it must decide only the question of the identity of the will,
its due execution and the testamentary capacity of the testatrix, it finds no reason for the
disallowance of the will for its failure to comply with the formalities prescribed by law
nor for lack of testamentary capacity of the testatrix.
On appeal, the CA reversed said Decision holding that the decedent did not comply
with Articles 313 and 314 of the NCC. It found that certain dispositions in the will were
either unsigned or undated, or signed by not dated. It also found that the
erasures, alterations and cancellations made had not been authenticated by decedent.
ISSUE:
Whether the CA erred in holding that Articles 813 and 814 of the NCC were not complies
with.
HELD:

YES. A reading of Article 813 shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to
sign and date some of the dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate notwithstanding noncompliance with the provisions of Article 814.
Unless the authenticated alterations, cancellations or insertions were made on the date
of the holographic will or on testators signature, their presence does not invalidate the
will itself. The lack of authentication will only result in disallowance of such changes.
It is also proper to note that he requirements of authentication of changes and signing
and dating of dispositions appear in provisions (Article 813 and 814) separate from that
which provides for the necessary conditions for the validity of the holographic will
(Article 810).
This separation and distinction adds support to the interpretation that only
therequirements of Article 810 of the NCC and not those found in Articles 813 and 814
are essential to the probate of a holographic will.
Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code enumerate the
grounds for disallowance of wills. These lists are exclusive; no other grounds can serve
to disallow a will.
In a petition to admit a holographic will, the only issues to be resolved are:
1.whether the instrument submitted is, indeed, the decedents last will and testament;
2.whether said will was executed in accordance with the formalities prescribed by law;
3.whether the decedent had the necessary testamentary capacity at the time the will was
executed; and
4.whether the execution of the will and its signing were the voluntary acts of the
decedent.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud; accordingly, laws on this subject should be interpreted to
attain these primordial ends.
In the case of holographic wills, what assures authenticity is the requirement that they
be totally authographic or handwritten by the testator himself. Failure to strictly observe
other formalities will no result in the disallowance of a holographic will that is
unquestionable handwritten by the testator.