Documente Academic
Documente Profesional
Documente Cultură
L-4067
The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A reugo del
testator" and the name of Florentino Javier. Antero Mercado is
alleged to have written a cross immediately after his name. The
Court of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1)
to certify that the will was signed on all the left margins of the
three pages and at the end of the will by Atty. Florentino Javier at
the express request of the testator in the presence of the testator
and each and every one of the witnesses; (2) to certify that after
the signing of the name of the testator by Atty. Javier at the
former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three
witnesses signed the will in all the pages thereon in the presence
of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing
to state that Antero Mercado caused Atty. Florentino Javier to write
the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner
(who is appealing by way of certiorari from the decision of the
Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient
by this Court in the cases of De Gala vs. Gonzales and Ona, 53
Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81
Phil., 429.
It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by
which he signed his name. After mature reflection, we are not
prepared to liken the mere sign of the cross to a thumbmark, and
the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine
there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses,
and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against
the petitioner. So ordered.
In the petition for probate filed with the respondent court, the
petitioner attached the alleged last will and testament of the late
Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the
page by the testatrix alone and at the left hand margin by the
three (3) instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed at the
end of the attestation clause by the three (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
branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who
testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian
issued the questioned order denying the probate of the will of
Dorotea Perez for want of a formality in its execution. In the same
order, the petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so that they
could be properly notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial court, the petitioner
filed a manifestation and/or motion, ex partepraying for a thirtyday period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the tenday period required by the court to submit the names of intestate
heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order
denying the probate of the will. However, the motion together with
the previous manifestation and/or motion could not be acted upon
by the Honorable Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents were still
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by
his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in witnessing
the testator's execution of the will in order to see and take note
mentally that those things are, done which the statute requires for
the execution of a will and that the signature of the testator exists
as a fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose of
Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our
considered view that the will in this case was subscribed in a
manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of
the first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the law on
wills in this project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more
freedom in expressing his last wishes but with sufficient safeguards
and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the
PUNO, J.:
This is a petition for review by certiorari of the Decision, dated
March 27, 1990, of the Court of appeals 1 in CA-G.R. CV No. 19071,
disallowing probate of the Last Will and Codicil executed by Calibia
Lingdan Bulanglang, who died on March 20, 1976.
The records show that decedent left behind nine thousand pesos
(P9,000.00) worth of property. She also left a Last Will and
Testament, dated October 30, 1972, and a Codicil thereto, dated
July 24, 1973. Both documents contained the thumbmarks of
decedent. They were also signed by three (3) attesting witnesses
each, and acknowledged before Tomas A. Tolete, then the Municipal
Judge and Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a Petition for its
allowance before the RTC of Bontoc, Mt. Province, Br. 36. 2 He died
during the pendency of the proceedings, and was duly substituted
by petitioner. Private respondents, relatives of decedent, opposed
the Petitioner filed by Calde, on the following grounds: that the will
and codicil were written in Ilocano, a dialect that decedent did not
know; that decedent was mentally incapacitated to execute the
two documents because of her advanced age, illness and deafness;
that decedents thumbmarks were procured through fraud and
undue influence; and that the codicil was not executed in
accordance with law.
On June 23, 1988, the trial court rendered judgment on the case,
approving and allowing decedents will and its codicil. The decision
was appealed to and reversed by the respondent Court of Appeals.
It held:
A Jose Becyagen.
Q With what did Jose Becyagen
sign the testament, Exhibit "B" and
"B-1"?
A Ballpen.
Q And after Jose Becyagen signed
his name with the ballpen, who was
the next to sign?
A Me, sir.
A Yes, sir.
A Yes, sir.
Q And then after you signed, who
was the next to sign the document,
Exhibit "B" and "B-1"?
A Hilario Coto-ong.
Q So you passed also to Hilario
Coto-ong the same Exhibit "B" and
"B-1" and the ballpen so that he
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu
admitted to probate Ana Abangan's will executed July, 1916. From
this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of
two sheets, the first of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation clause
duly signed at the bottom by the three instrumental witnesses.
Neither of these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and these
omissions, according to appellants' contention, are defects
whereby the probate of the will should have been denied. We are
of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in the
presence of each other, Act No. 2645 (which is the one applicable
in the case) evidently has for its object (referring to the body of the
will itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions
are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their signatures
on the left margin of said sheet would be completely purposeless.
Witness Natividad who testified on his failure to sign page three (3)
of the original, admits that he may have lifted two pages instead of
one when he signed the same, but affirmed that page three (3)
was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the
effect that the signatures of the testatrix in the duplicate (Exhibit
"A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the
documents were genuine, they were executed through mistake and
with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of
those who will stand to benefit from the provisions of the will, as
may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined not
to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court
was, that the testatrix signed both original and duplicate copies
(Exhibits "A" and "A-1", respectively) of the will spontaneously, on
the same in the presence of the three attesting witnesses, the
notary public who acknowledged the will; and Atty. Samson, who
actually prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the
testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were
not written by the same had which wrote the signatures in the
original will leaves us unconvinced, not merely because it is
directly contradicted by expert Martin Ramos for the proponents,
the only page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the
first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked
one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly
signed carbon duplicate (Exh. A-1), and the same is probatable. If
the original is valid and can be probated, then the objection to the
signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove
that the omission of one signature in the third page of the original
testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted
without a new publication does not affect the jurisdiction of the
probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially
alter the one first filed, but merely supplemented it by disclosing
the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are
admittedly identical); and appellants were duly notified of the
proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and
we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is
affirmed, with costs against appellants.
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on
the left-hand margin of both pages of the will, but not at the
bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and
devisees of the decedent, namely: petitioner himself, and one Irene
Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be
issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda
Castillo), who represented herself as the attorney-in-fact of "the 12
legitimate heirs" of the decedent.2 Geralda Castillo claimed that
the will is a forgery, and that the true purpose of its emergence
was so it could be utilized as a defense in several court cases filed
by oppositor against petitioner, particularly for forcible entry and
In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their
execution with the end in view of giving the testator more
[freedom] in [expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in the
execution of wills."24 However, petitioner conveniently omits the
qualification offered by the Code Commission in the very same
paragraph he cites from their report, that such liberalization be
"but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper
pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion
made by Justice Regalado, speaking for the Court on the conflicting
views on the manner of interpretation of the legal formalities
required in the execution of the attestation clause in wills. 27 Uy
Coque and Andrada are cited therein, along with several other
cases, as examples of the application of the rule of strict
construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be
applied:
x x x The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are
three or the will was notarized. All these are facts that the will itself
can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign
did so in the presence of each other must substantially
appear in the attestation clause, being the only check
against perjury in the probate proceedings.29 (Emphasis
supplied.)
Chief Justice Paras, ruled that the attestation clause had not been
duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by
the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would
be easy to add such clause to a will on a subsequent occasion and
in the absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article
805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will
be "attested and subscribed by [the instrumental witnesses]." The
respective intents behind these two classes of signature are
distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware
that the page they are signing forms part of the will. On the other
hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation
SO ORDERED.
MANUEL L. LEE, A.C. No. 5281
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA
and
LEONARDO-DE
CASTRO, JJ.
ATTY. REGINO B. TAMBAGO,
Respondent. Promulgated:
February 12, 2008
x------------------------------------------- - - - - - - -x
RESOLUTION
CORONA, J.:
All told, the string of mortal defects which the will in question
suffers from makes the probate denial inexorable.
execution.
Complainant also questioned the absence of notation of
In the said will, the decedent supposedly bequeathed his
entire estate to his wife Lim Hock Lee, save for a parcel of land
complainant.
Complainant further asserted that no copy of such
The will was purportedly executed and acknowledged
[3]
stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965
refers to an AFFIDAVIT executed by BARTOLOME
RAMIREZ on June 30, 1965 and is available in
this Office[s] files.[6]
complainant was a son of the decedent Vicente Lee, Sr. and (2)
Lastly, respondent pointed out that complainant had no
that the will in question was fake and spurious. He alleged that
valid cause of action against him as he (complainant) did not first
complainant was not a legitimate son of Vicente Lee, Sr. and the
file an action for the declaration of nullity of the will and demand
last will and testament was validly executed and actually notarized
his share in the inheritance.
by respondent per affidavit
[7]
Vicente Lee, Sr. and corroborated by the joint affidavit [8] of the
children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N.
him
commissioner
of
the
IBP
Commission
on
Bar
The IBP Board of Governors, in its Resolution No. XVII-2006and fraud, to avoid substitution of wills and testaments and to
285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED
and APPROVED, with modification, the Report
and
Recommendation
of
the
Investigating
Commissioner of the above-entitled case, herein
made part of this Resolution as Annex A; and,
finding the recommendation fully supported by the
evidence on record and the applicable laws and
rules, and considering Respondents failure to
comply with the laws in the discharge of his
function as a notary public, Atty. Regino B.
Tambago is hereby suspended from the practice of
law for one year and Respondents notarial
commission
is Revoked
and
Disqualified from reappointment as Notary Public
for two (2) years.[14]
disposition of his estate, to take effect after his death. [15] A will may
shall be void, except when the law itself authorizes their validity.
nor
substantially
complied
with.
For
one,
there
was
the
the fact that it was segregated from the other requirements under
public that the same is his or her own free act and deed. [21] The
acknowledgment in a notarial will has a two-fold purpose: (1) to
safeguard the testators wishes long after his demise and (2) to
These
formalities
are
mandatory
and
cannot
be
especially
lawyer,[24] is
bound
to
strictly
observe
these
elementary requirements.
both the old Notarial Law and the Residence Tax Act. As much
could be said of his failure to demand the exhibition of the
residence certificates of Noynay and Grajo.
division a copy of the notarized will was therefore not a cause for
reinforce
disciplinary action.
his
claim,
he
presented
photocopy
of
notarial register. The old Notarial Law required the entry of the
1.
2.
3.
4.
5.
6.
7.
[27]
certification dated September 21, 1999 [30] must fail. Not only did he
out a prior entry and entered instead the will of the decedent. As
2000;[31] its contents did not squarely prove the fact of entry of the
contested will in his notarial register.
[33]
considering that the testator and the witnesses, as in this case, are
to
the
Republic
of
the
Philippines,
uphold
the
Constitution and obey the laws of the land.[40] For a lawyer is the
In this connection, Section 249 of the old Notarial Law
servant of the law and belongs to a profession to which society has
provided:
[41]
sufficient basis for the revocation of his commission [50] and his
respondent.
SO ORDERED.
of
law
for
one
year
and
his
DECISION
notarial
PANGANIBAN, J.:
T
he law favors the probate of a will. Upon those who oppose it rests
further
and
concomitant
The Facts
The Case
a.
b.
2-storey
building
standing on the abovedescribed
property,
made of strong and
mixed materials used
as my residence and
my wife and located at
No.
9200
Catmon
Street, Makati, Metro
Manila also covered by
Tax Declaration No. A025-00482,
Makati,
Metro-Manila, jointly in
the
name
of
my
deceased sister, Ciriaca
Valmonte and myself
as co-owners, share
and share alike or
equal
co-owners
thereof;
3.
All the rest, residue
and remainder of my real and
personal properties, including my
savings account bank book in USA
which is in the possession of my
nephew, and all others whatsoever
and wherever found, I give, devise
5.
6.
7.
Petitioner
failed to allege all assets of the
testator, especially those found
in the USA;
2.
Petitioner
failed to state the names, ages,
and residences of the heirs of
the testator; or to give them
proper notice pursuant to law;
3.
4.
Testator
was
mentally
incapable to make a will at the
time of the alleged execution
he being in an advance sate of
senility;
as
of
2.
Non-compliance
with
the
legal
solemnities and formalities in the
execution and attestation of the will;
and
unhygienic, crude and impolite ways[6] did not make him a person
of unsound mind.
Issues
Petitioner raises the following issues for our consideration:
I.
Whether or not the findings of the probate court
are entitled to great respect.
Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of the
notary
public
and
the
subscribing
witnesses
who
had
II.
Whether or not the signature of Placido Valmonte
in the subject will was procured by fraud or
trickery, and that Placido Valmonte never intended
that the instrument should be his last will and
testament.
III.
Whether or not Placido Valmonte has testamentary
capacity at the time he allegedly executed the
subject will.[8]
be allowed. The law lays down the procedures and requisites that
must be satisfied for the probate of a will. [10] Verily, Article 839 of
the Civil Code states the instances when a will may be disallowed,
Main Issue:
Probate of a Will
as follows:
(2)
If the testator was insane, or
otherwise mentally incapable of making a will, at
the time of its execution;
(3)
If it was executed through force or
under duress, or the influence of fear, or threats;
during the trial may be examined and the factual matters resolved
(4)
If it was procured by undue and
improper pressure and influence, on the part of the
beneficiary or of some other person;
(5)
If the signature of the testator was
procured by fraud;
(6)
If the testator acted by mistake or
did not intend that the instrument he signed should
be his will at the time of affixing his signature
thereto.
does not affect the due execution of a will. [16] That the testator was
tricked into signing it was not sufficiently established by the fact that
regarding which the testator is led to make a certain will which, but
he had instituted his wife, who was more than fifty years his junior,
[15]
Unfortunately
in
this
case,
other
than
the
self-serving
invalidate the document, because the law does not even require
that a [notarial] will x x x be executed and acknowledged on the
same occasion.[18] More important, the will must be subscribed by
the testator, as well as by three or more credible witnesses who
execution
and
attestation
was
satisfactorily
and
xxxxxxxxx
benefit from the allowance of the will. The testimonies of the three
of mind
SO ORDERED.