Lopez vs.
Liboro The contradictions in the testimony of the instrumental witnesses
81 PHIL 429 – Succession – Pagination of the Will – Witnesses to a
Will – Language of the Will – Thumb Mark as Signature
In 1947, Don Sixto Lopez executed a will where Jose Lopez was
named an heir. Agustin Liboro questioned the validity of the said
will based on the following ground, among others:
The first sheet, which is also the first page) is not paged either in
letters or in Arabic numerals.
That the witnesses to the will provided contradictory statements.
That Don Sixto used his thumb mark to sign the will.
There was no indication in the will that the language used therein is
known by Don Sixto Lopez.
ISSUE: Whether or not the will is valid.
HELD: Yes, the will is valid.
The omission to put a page number on the first sheet, if that be
necessary, is supplied by other forms of identification more
trustworthy than the conventional numeral words or characters.
The unnumbered page is clearly identified as the first page by the
internal sense of its contents considered in relation to the contents
of the second page. By their meaning and coherence, the first and
second lines on the second page are undeniably a continuation of
the last sentence of the testament, before the attestation clause,
which starts at the bottom of the preceding page. Further, the first
pages is captioned “Testamento”.
as are set out in Liboro’s appelant’s brief are incidents not all of
which every one of the witnesses can be supposed to have
perceived, or to recall in the same order in which they occurred.
Don Sixto affixed his thumb mark to the instrument instead of
signing his name. The reason for this was that he was suffering from
“partial paralysis.” There is nothing curious or suspicious in the fact
that the testator chose the use of mark as the means of
authenticating his will. It was a matter of taste or preference. Both
ways are good.
There is no statutory requirement which prescribes that it must be
expressly placed in the will that the testator knows the language
being used therein. It is a matter that may be established by proof
aliunde.
Nenita Suroza vs Honrado
110 SCRA 388 – Succession – Will Should be Written in a Language
Known to the Testator
In 1973, Marcelina Suroza supposedly executed a notarial will
bequeathing her house and lot to a certain Marilyn Suroza. In 1974,
Marcelina died. Marina Paje was named as the executrix in the said
will and she petitioned before CFI Rizal that the will be admitted to
probate. The presiding judge, Honrado admitted the will to probate
and assigned Paje as the administratrix. Honrado also issued an
ejectment order against the occupants of the house and lot subject
of the will.
Nenita Suroza, daughter in law of Marcelina (her husband, son of
Marcelina was confined in the Veteran’s Hospital), learned of the
probate proceeding when she received the ejectment order (as she
was residing in said house and lot).
Nenita opposed the probate proceeding. She alleged that the said
notarial will is void because (a) the instituted heir therein Marilyn
Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b)
the only son of Marcelina, Agapito Suroza, is still alive and is the
compulsory heir, (c) the notarial will is written in English a language
not known to Marcelina because the latter was illiterate so much so
that she merely thumbmarked the will, (d) the notary public who
notarized will admitted that Marcelina never appeared before him
and that he notarized the said will merely to accommodate the
request of a lawyer friend but with the understanding that
Marcelina should later appear before him but that never happened.
Honrado still continued with the probate despite the opposition
until testamentary proceeding closed and the property transferred
to Marilyn Sy.
Nenita then filed this administrative case against Honrado on the
ground of misconduct.
ISSUE: Whether or not Honrado is guilty of misconduct for admitting
into probate a void will.
HELD: Yes. Despite the valid claim raised by Nenita, he still
continued with the testamentary proceeding, this showed his
wrongful intent. He may even be criminally liable for knowingly
rendering an unjust judgment or interlocutory order or rendering a
manifestly unjust judgment or interlocutory order by reason of
inexcusable negligence or ignorance.
The will is written in English and was thumb marked by an obviously
illiterate Marcelina. This could have readily been perceived by
Honrado that 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, 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. Had Honrado been careful and observant, he
could have noted not only the anomaly as to the language of the
will but also that there was something wrong in instituting to
Marilyn Sy as sole heiress and giving nothing at all to Agapito who
was still alive.
Honrado was fined by the Supreme Court.
Abangan v. Abangan
Facts:
1. On September 1917, the CFI of Cebu admitted to probate Ana
Abangan's will executed on July 1916. It is from this decision which
the opponent appealed. It is alleged that the records do not show
the testatrix knew the dialect in which the will was written.
Issue: Whether or not the will was validly probated
YES. The circumstance appearing on the will itself, that it was
executed in Cebu City and in the dialect of the place where the
testarix is a resident is enough to presume that she knew this
dialect in the absence of any proof to the contrary. On the authority
of this case and that of Gonzales v Laurel, it seems that for the
presumption to apply, the following must appear: 1) that the will
must be in a language or dialect generally spoken in the place of
execution, and, 2) that the testator must be a native or resident of
the said locality.
Payad vs. Tolentino
G.R. No. 42258. January 15, 1936
FACTS – Victorio Payad filed a petition for the probate of the will of
the decedent Leoncia Tolentino. This was opposed by Aquilina
Tolentino, averring that said Will was made only after the death of
the testatrix. The lower court denied the probate of the will on the
ground that the attestation clause was not in conformity with the
requirements of the law since it was not stated therein that the
testatrix caused Atty. Almario to write her name at her express
direction. Hence, this petition.
ISSUE – Was it necessary that the attestation clause state that the
testatrix caused Atty. Almario to write her name at her express
direction?
HELD - The evidence of record establishes the fact the Leoncia
Tolentino, assisted by Attorney Almario, placed her thumb mark on
each and every page of the questioned will and that said attorney
merely wrote her name to indicate the place where she placed said
thumb mark. In other words Attorney Almario did not sign for the
testatrix. She signed by placing her thumb mark on each and every
page thereof. "A statute requiring a will to be 'signed' is satisfied if
the signature is made by the testator's mark." (Quoted by this court
from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104,
108.) It is clear, therefore, that it was not necessary that the
attestation clause in question should state that the testatrix
requested Attorney Almario to sign her name inasmuch as the
testatrix signed the will in question in accordance with law.
Matias vs. Salud
G.R. L-10907 June 29, 1957
Ponente: Concepcion, J.
Facts:
1. This case is an appeal from a CFI Cavite order denying the probate
of the will of Gabina Raquel. The document consist of 3 pages and it
seems that after the attestation clause, there appears the siganture
of the testatrix 'Gabina Raquel', alongside is a smudged in violet ink
claimed by the proponents as the thumbmark allegedly affixed by
the tetratrix. On the third page at the end of the attestation clause
appears signatures on the left margin of each page, and also on the
upper part of each left margin appears the same violet ink smudge
accompanied by the written words 'Gabina Raquel' with 'by Lourdes
Samonte' underneath it.
2. The proponent's evidence is to the effect that the decedent
allegedly instructed Atty. Agbunag to drat her will and brought to
her on January 1950. With all the witnesses with her and the
lawyer, the decedent affixed her thumbmark at the foot of the
document and the left margin of each page. It was also alleged that
she attempted to sign using a sign pen but was only able to do so on
the lower half of page 2 due to the pain in her right shoulder. The
lawyer, seeing Gabina unable to proceed instructed Lourdes
Samonte to write 'Gabina Raquel by Lourdes Samonte' next to each
thumbmark, after which the witnesses signed at the foot of the
attestation clause and the left hand margin of each page.
3. The probate was opposed by Basilia Salud, the niece of the
decedent.
4. The CFI of cavite denied the probate on the ground that the
attestation clause did not state that the testatrix and the witnesses
signed each and every page nor did it express that Lourdes was
specially directed to sign after the testatrix.
Issue: Whether or not the thumbprint was sufficient compliance
with the law despite the absence of a description of such in the
attestation clause
HELD: YES
The absence of the description on the attestation clause that
another person wrote the testatrix' name at her request is not a
fatal defect, The legal requirement only ask that it be signed by the
testator, a requirement satisfied by a thumbprint or other mark
affixed by him.
As to the issue on the clarity of the ridge impression, it is held to be
dependent on the aleatory circumstances. Where a testator
employs an unfamiliar way of signing and that both the attestation
clause and the will are silent on the matter, such silence is a factor
to be considered against the authenticity of the testament.
However, the failure to describe the signature itself alone is not
sufficient to refuse probate when evidence fully satisfied that the
will was executed and witnessed in accordance with law.
Rosario Garcia vs Juliana Lacuesta
90 Phil 189 – Succession – Signing Using an X Mark
Antero Mercado left a will dated January 3, 1943. The will appears
to have been signed by Atty. Florentino Javier as he wrote the name
of Antero Mercado and his name for the testatior on the will.
HOWEVER, immediately after Antero Mercado’s will, Mercado
himself placed an “X” mark.
The attestation clause was signed by three instrumental witnesses.
Said attestation clause states that all pages of the will were “signed
in the presence of the testator and witnesses, and the witnesses in
the presence of the testator and all and each and every one of us
witnesses.” The attestation clause however did not indicate that
Javier wrote Antero Mercado’s name.
ISSUE: Whether or not the will is valid.
HELD: No. 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.
But is there really a need for such to be included in the attestation
clause considering that even though Javier signed for Antero,
Antero himself placed his signature by virtue of the “X” mark, and
by that, Javier’s signature is merely a surplusage? That the placing
of the “X” mark is the same as placing Antero’s thumb mark.
No. It’s not the same as placing the testator’s thumb mark. It would
have been different had it been proven that the “X” mark was
Antero’s usual signature or was even one of the ways by which he
signs his name. If this were so, failure to state the writing by
somebody else would have been immaterial, since he would be
considered to have signed the will himself.
Barut v. Cabacungan
FACTS:
Barut applied for the probate of the will of deceased, Maria
Salomon. The testatrix stated in the will that being unable to read or
write, the will was read to her by Ciriaco Concepcion and Timotea
Inoselda and that she had instructed Severo Agayan to sign her
name to it as testatrix. The probate was contested by a number of
the relatives of the deceased on various grounds.
The probate court found that the will was not entitled to probate
because “the handwriting of the person who it is alleged signed the
name of the testatrix to the will for and on her behalf looked more
like the handwriting of one of the other witnesses to the will than to
the person whose handwriting it was alleged to be” (i.e. The
probate court denied probate because the signature seemed to not
have been by Severo Agayan but by another witness).
ISSUE:
Was the dissimilarity in handwriting sufficient to deny probate of
the will?
HELD:
No. The SC found that the mere dissimilarity in writing is sufficient
to overcome the uncontradicted testimony of all the witnesses that
the signature of the testatrix was written by Severo Agayan. It is
also immaterial who writes the name of the testatrix provided it is
written at her request and in her presence and in the presence of all
the witnesses to the execution of the will.
Based on Section 618 of the Code of Civil Procedure, it is clear that
with respect to the validity of the will, it is unimportant whether the
person who writes the name of the testatrix signs his own or not.
The important thing is that it clearly appears that the name of the
testatrix was signed at her express direction in the presence of 3
witnesses and that they attested and subscribed it in her presence
and in the presence of each other. It may be wise that the one who
signs the testator’s name signs also his own; but that is not essential
to the validity of the will.
The court also held that the 3 cases cited by the lower court was not
applicable. In those cases, the person who signed the will for the
testator wrote his own name instead of the testator’s, so that the
testator’s name nowhere appeared in the will, and were thus wills
not duly executed.
Beatriz Nera vs Narcisa Rimando
18 Phil 450 – Succession – What “In the presence of each other”
means
When a certain will was being signed, it was alleged that the
testator and some subscribing witnesses were in the inner room
while the other subscribing witnesses were in the outer room. What
separates the inner room from the outer room was a curtain. The
trial court ignored this fact in its determination of the case as it
ruled that the determination of this specific fact will not affect the
outcome of the case.
ISSUE: What is the true test of the testator’s or the witness’
presence in the signing of a will?
HELD: The Supreme Court emphasized that 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 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.
The position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that
they may see each other sign if they choose to do so.
The Supreme Court, in this case, determined that all the parties
were in the same small room when each other signed. Hence, they
were in each other’s presence (though the facts of the case didn’t
elaborate – the SC just ruled so). The SC ruled that if some of the
witnesses were really in the outer room (a fact which was not
established according to the SC) separated by a curtain, then the
will is invalid, the attaching of those signatures under circumstances
not being done “in the presence” of the witness in the outer room.
Javellana v. Ledesma
G.R. No. L-7179
Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed
by the deceased Apolinaria Ledesma in July 1953. This testament
was deemed executed on May 1950 and May 1952. The contestant
was the sister and nearest surviving relative of the deceased. She
appealed from this decision alleging that the will were not executed
in accordance with law.
2. The testament was executed at the house of the testatrix. One
the other hand, the codicil was executed after the enactment of the
New Civil Code (NCC), and therefore had to be acknowledged
before a notary public. Now, the contestant, who happens to be
one of the instrumental witnesses asserted that after the codicil
was signed and attested at the San Pablo hospital, that Gimotea
(the notary) signed and sealed it on the same occasion. Gimotea,
however, said that he did not do so, and that the act of signing and
sealing was done afterwards.
2. One of the allegations was that the certificate of
acknowledgement to the codicil was signed somewhere else or in
the office of the notary. The ix and the witnesses at the hospital,
was signed and sealed by the notary only when he brought it in his
office.
Issue: Whether or not the signing and sealing of the will or codicil in
the absence of the testator and witnesses affects the validity of the
will
first read 'silently' by the testatrix before signing it. The probate
court admitted the will.
2. The oppositors alleged that the as of December 1960, the
eyesight of the deceased was so poor and defective that she could
not have read the provisions contrary to the testimony of the
witnesses.
Issue: Whether or not the will is valid

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not
require that the signing of the testator, the witnesses and the
notary be accomplished in one single act. All that is required is that
every will must be acknowledged before a notary public by the
testator and witnesses. The subsequent signing and sealing is not
part of the acknowledgement itself nor of the testamentary act.
Their separate execution out of the presence of the testator and the
witnesses cannot be a violation of the rule that testaments should
be completed without interruption.
Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969
Fernando, J (Ponente)
RULING: The will is not valid. If the testator is blind, Art. 808 of the
New Civil Code (NCC) should apply.If the testator is blind or
incapable of reading, he must be apprised of the contents of the will
for him to be able to have the opportunityto object if the provisions
therein are not in accordance with his wishes.
The testimony of her opthalmologist established that
notwithstanding an operation to remove her cataract and being
fitted with the lenses, this did not improve her vision. Her vision
remained mainly for viewing distant objects and not for reading.
There was no evidence that her vision improved at the time of the
execution of the 2nd will. Hence, she was incapable of reading her
own will. The admission of the will to probate is therefor erroneous.

Facts:
1. Gliceria del Rosario executed 2 wills, one in June 1956, written in
Spanish, a language she knew an spoke. The other will was executed
in December 1960 consisting of only one page, and written in
Tagalog. The witnesses to the 1960 will declared that the will was
ALVARADO vs. GAVIOLA solemnities surrounding the execution of wills are intended to
protect the testator from all kinds of fraud and trickery but are
September 14, 1993
never intended to be so rigid and inflexible as to destroy the
FACTS: testamentary privilege.
The testator did not read the final draft of the will himself. Instead,
private respondent, as the lawyer who drafted the 8-paged
In this case, private respondent read the testator's will and
document, read the same aloud in the presence of the testator, the
codicil aloud in the presence of the testator, his three instrumental
3 instrumental witnesses and the notary public. The latter 4
witnesses, and the notary public. Prior and subsequent thereto, the
followed the reading with their own respective copies previously
testator affirmed, upon being asked, that the contents read
furnished them.
corresponded with his instructions. Only then did the signing and
acknowledgement take place.
Said will was admitted to probate. Later on, a codicil was
executed, and by that time, the testator was already suffering from
Icasiano vs. Icasiano
glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not G.R. No. L-18979 June 30, 1964
personally read the final draft of the codicil. Instead, it was private
Facts:
respondent who read it aloud in his presence and in the presence of
the three instrumental witnesses (same as those of the notarial will) 1. Celso Icasiano, filed a petition for the probate of the will of Josefa
and the notary public who followed the reading using their own Villacorte and for his appointment as executor thereof. It appears
copies. from the evidence that the testatrix died on September 12, 1958.
She executed a will in Tagalog, and through the help of her lawyer,
it was prepared in duplicates, an original and a carbon copy.
ISSUE: Was there substantial compliance to the reading of the will?

2. On the day that it was subscribed and attested, the lawyer only
HELD: brought the original copy of the will while the carbon duplicate
(unsigned) was left in Bulacan. One of the witnesses failed to sign
Article 808 not only applies to blind testators, but also to those
one of the pages in the original copy but admitted he may have
who, for one reason or another, are incapable of reading their wills.
lifted 2 pages simultaneously instead when he signed the will.
Hence, the will should have been read by the notary public and an
Nevertheless, he affirmed that the will was signed by the testator
instrumental witness. However, the spirit behind the law was
and other witnesses in his presence.
served though the letter was not. In this case, there was substantial
compliance. Substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the
Issue: Whether or not the failure of one of the subscribing witnesses
to affix his signature to a page is sufficient to deny probate of the
will
RULING: No, the failure to sign was entirely through pure oversight
or mere inadvertence. Since the duplicated bore the required
signatures, this proves that the omission was not intentional. Even if
the original is in existence, a duplicate may still be admitted to
probate since the original is deemed to be defective, then in law,
there is no other will bu the duly signed carbon duplicate and the
same can be probated.
The law should not be strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of a single witness over
whose conduct she has no control of. Where the purpose of the law
is to guarantee the identity of the testament and its component
pages, and there is no intentional or deliberate deviation existed.
Note that this ruling should not be taken as a departure from the
rules that the will should be signed by the witnesses on every page.
The carbon copy duplicate was regular in all respects.
Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:
Facts:
1. The CFI of Cebu allowed the probate of the last will and
testament of the late Valenti Cruz. However, the petitioner opposed
the allowance of the will alleging that it was executed through
fraud, deceit, misrepresentation, and undue influence. He further
alleged that the instrument was executed without the testator
having been informed of its contents and finally, that it was not
executed in accordance with law.
2. One of the witnesses, Angel Tevel Jr. was also the notary before
whom the will was acknowledged. Despite the objection, the lower
court admitted the will to probate on the ground that there is
substantial compliance with the legal requirements of having at
least 3 witnesses even if the notary public was one of them.
Issue: Whether or not the will is valid in accordance with Art. 805
and 806 of the NCC
HELD: NO.
The will is not valid. The notary public cannot be considered as the
third instrumental witness since he cannot acknowledge before
himself his having signed the said will. An acknowledging officer
cannot serve as witness at the same time.
To acknowledge before means to avow, or to own as genuine, to
assent, admit, and 'before' means in front of or preceding in space
or ahead of. The notary cannot split his personality into two so that
one will appear before the other to acknowledge his participation
int he making of the will. To permit such situation would be absurd.
Finally, the function of a notary among others is to guard against
any illegal or immoral arrangements, a function defeated if he were
to be one of the attesting or instrumental witnesses. He would be
interested in sustaining the validity of the will as it directly involves
himself and the validity of his own act. he would be in an
inconsistent position, thwarting the very purpose of the
acknowledgment, which is to minimize fraud.
Caneda v. CA
222 SCRA 781
FACTS:
On December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last
will and testament at his residence before 3 witnesses.
He was assisted by his lawyer, Atty. Emilio Lumontad.
In the will, it was declared that the testator was leaving by way of
legacies and devises his real and personal properties to several
people all of whom do not appear to be related to the testator.
4 months later, Mateo Caballero himself filed a case seeking the
probate of his last will and testament, but numerous
postponements pushed back the initial hearing of the probate court
regarding the will.
On May 29, 1980, the testator passed away before his petition
could finally be heard by the probate court.
Thereafter one of the legatees, Benoni Cabrera, sought his
appointment as special administrator of the testator’s estate.
Thereafter, the petitioners, claiming to be nephews and nieces of
the testator, instituted a second petition for intestate proceedings.
They also opposed the probate of the testator’s will and the
appointment of a special administrator for his estate.
Benoni Cabrera died and was replaced by William Cabrera as special
administrator and gave an order that the testate proceedings for
the probate of the will had to be heard and resolved first.
In the course of the proceedings, petitioners opposed to the
allowance of the testator’s will on the ground that on the alleged
date of its execution, the testator was already in poor state of
health such that he could not have possibly executed the same. Also
the genuineness of the signature of the testator is in doubt.
On the other hand, one of the attesting witnesses and the notary
public testified that the testator executed the will in question in
their presence while he was of sound and disposing mind and that
the testator was in good health and was not unduly influenced in
any way in the execution of his will.
Probate court then rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero.
CA affirmed the probate court’s decision stating that it substantially
complies with Article 805. Hence this appeal.
ISSUE:
W/N the attestation clause in the will of the testator is fatally
defective or can be cured under the art. 809.
HELD:
No. It does not comply with the provisions of the law.
Ordinary or attested wills are governed by Arts. 804 to 809. The will
must be acknowledged before a notary public by the testator and
the attesting witnesses. The attestation clause need not be written
in a language known to the testator or even to the attesting
witnesses.
It is a separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses it gives
affirmation to the fact that compliance with the essential formalities
required by law has been observed.
The attestation clause, therefore, provides strong legal guaranties
for the due execution of a will and to insure the authenticity
thereof.
It is contended by petitioners that the attestation clause in the will
failed to specifically state the fact that the attesting witnesses
witnessed the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of each
other. And the Court agrees.
The attestation clause does not expressly state therein the
circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each
other.
The phrase, “and he has signed the same and every page thereof,
on the space provided for his signature and on the left hand
margin,” obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words” as his last will
and testament.”
Clearly lacking is the statement that the witnesses signed the will
and every page thereof in the presence of the testator and of one
another. That the absence of the statement required by law is a
fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be probated.
Also, Art. 809 does not apply to the present case because the
attestation clause totally omits the fact that the attesting witnesses
signed each and every page of the will in the presence of the
testator and of each other. The defect in this case is not only with
respect to the form or the language of the attestation clause. The
defects must be remedied by intrinsic evidence supplied by the will
itself which is clearly lacking in this case.
Therefore, the probate of the will is set aside and the case for the
intestate proceedings shall be revived.
Article 809 cannot be used to cure the defects of the will when it
does not pertain to the form or language of the will. This is because
there is not substantial compliance with Article 805.
Gan v. Yap
104 P 509
FACTS:
Felicidad Yap died of a heart failure, leaving properties in Pulilan,
Bulacan, and in Manila.
Fausto E. Gan, her nephew, initiated the proceedings in the Manila
CFI with a petition for the probate of a holographic will allegedly
executed by the deceased.
The will was not presented because Felicidad’s husband, Ildefonso,
supposedly took it. What was presented were witness accounts of
relatives who knew of her intention to make a will and allegedly saw
it as well. According to the witnesses, Felicidad did not want her
husband to know about it, but she had made known to her other
relatives that she made a will.
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 Judge
refused to probate the alleged will on account of the discrepancies
arising from the facts. For one thing, it is strange that Felicidad
made her will known to so many of her relatives when she wanted
to keep it a secret and she would not have carried it in her purse in
the hospital, knowing that her husband may have access to it. There
was also no evidence presented that her niece was her confidant.
In the face of these improbabilities, the trial judge had to accept the
oppositor’s evidence that Felicidad did not and could not have
executed such holographic will.
ISSUE:
1. May 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?
2. W/N Felicidad could have executed the holographic will.
HELD:
1. No. The will must be presented.
The New Civil Code effective in 1950 revived holographic wills in its
arts. 810-814. “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.”
This is a radical departure from the form and solemnities provided
for wills under Act 190, which for fifty years (from 1901 to 1950)
required wills to be subscribed by the testator and three credible
witnesses in each and every page; such witnesses to attest to the
number of sheets used and to the fact that the testator signed in
their presence and that they signed in the presence of the testator
and of each other. Authenticity and due execution is the dominant
requirements to be fulfilled when such will is submitted to the
courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no opposition
(Sec. 5, Rule 77). If there is, the three must testify, if available. From not then be validly made here. Could Rule 77 be extended, by
the testimony of such witnesses (and of other additional witnesses) analogy, to holographic wills? (NO)
the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances its due
execution. Spanish commentators agree that one of the greatest objections to
the holographic will is that it may be lost or stolen — an implied
admission that such loss or theft renders it useless.
With regard to holographic wills, no such guaranties of truth and
veracity are demanded, since as stated, they need no witnesses;
provided however, that they are “entirely written, dated, and As it is universally admitted that the holographic will is usually done
signed by the hand of the testator himself.” by the testator and by himself alone, to prevent others from
knowing either its execution or its contents, the above article 692
“In the probate of a holographic will” says the New Civil Code, “it
could not have the idea of simply permitting such relatives to state
shall be necessary that at least one witness who knows the
whether they know of the will, but whether in the face of the
handwriting and signature of the testator explicitly declare that the
document itself they think the testator wrote it. Obviously, this they
will and the signature are in the handwriting of the testator. If the
can’t do unless the will itself is presented to the Court and to them.
will is contested, at least three such witnesses shall be required. In
the absence of any such witnesses, (familiar with decedent’s
handwriting) and if the court deem it necessary, expert testimony This holding aligns with the ideas on holographic wills in the Fuero
may be resorted to.” Juzgo, admittedly the basis of the Spanish Civil Code provisions on
the matter.(According to the Fuero, the will itself must be compared
with specimens of the testators handwriting.)
The witnesses need not have seen the execution of the holographic
will, but they must be familiar with the decedent’s handwriting.
Obviously, when the will itself is not submitted, these means of All of which can only mean: the courts will not distribute the
opposition, and of assessing the evidence are not available. And property of the deceased in accordance with his holographic will,
then the only guaranty of authenticity — the testator’s handwriting unless they are shown his handwriting and signature.
— has disappeared.

Taking all the above circumstances together, we reach the

The Rules of Court, (Rule 77) approved in 1940 allow proof (and conclusion that the execution and the contents of a lost or
probate) of a lost or destroyed will by secondary — evidence the destroyed holographic will may not be proved by the bare
testimony of witnesses, in lieu of the original document. Yet such testimony of witnesses who have seen and/or read such will.
Rules could not have contemplated holographic wills which could
At this point, before proceeding further, it might be convenient to
explain why, unlike holographic wills, ordinary wills may be proved
If testimonial evidence of holographic wills be permitted, one more
by testimonial evidence when lost or destroyed. The difference lies
objectionable feature — feasibility of forgery — would be added to
in the nature of the wills. In the first, the only guarantee of
the several objections to this kind of wills listed by Castan, Sanchez
authenticity is the handwriting itself; in the second, the testimony
Roman and Valverde and other well-known Spanish Commentators
of the subscribing or instrumental witnesses (and of the notary,
and teachers of Civil Law.
now). The loss of the holographic will entails the loss of the only
medium of proof; if the ordinary will is lost, the subscribing
witnesses are available to authenticate. One more fundamental difference: in the case of a lost will, the
three subscribing witnesses would be testifying to a fact which they
saw, namely the act of the testator of subscribing the will; whereas
In the case of ordinary wills, it is quite hard to convince three
in the case of a lost holographic will, the witnesses would testify as
witnesses (four with the notary) deliberately to lie. And then their
to their opinion of the handwriting which they allegedly saw, an
lies could be checked and exposed, their whereabouts and acts on
opinion which can not be tested in court, nor directly contradicted
the particular day, the likelihood that they would be called by the
by the oppositors, because the handwriting itself is not at hand.
testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but In fine, even if oral testimony were admissible to establish and
not least, they can not receive anything on account of the will. 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
Whereas in the case of holographic wills, if oral testimony were
distinct” proof required by Rule 77, sec. 6.
admissible only one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and 2. No. Even if oral testimony were admissible to establish and
credible witnesses see and read the forgery; and the latter, having probate a lost holographic will, we think the evidence submitted by
no interest, could easily fall for it, and in court they would in all herein petitioner is so tainted with improbabilities and
good faith affirm its genuineness and authenticity. The will having inconsistencies that it fails to measure up to that “clear and
been lost — the forger may have purposely destroyed it in an distinct” proof required by Rule 77, sec. 6.
“accident” — the oppositors have no way to expose the trick and
the error, because the document itself is not at hand. And
considering that the holographic will may consist of two or three
pages, and only one of them need be signed, the substitution of the
unsigned pages, which may be the most important ones, may go
undetected.
Rodelas v. Aranza
119 SCRA 16
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 Gam 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,”
Labrador v. CA
184 SCRA 170
FACTS:
Melecio died leaving behind a parcel of land to his heirs. However,
during probate proceedings, Jesus and Gaudencio filed an
opposition on the ground that the will has been extinguished by
implication of law alleging that before Melecio’s death, the land was
sold to them evidenced by TCT No. 21178. Jesus eventually sold it to
Navat.
Trial court admitted the will to probate and declared the TCT null
and void. However, the CA on appeal denied probate on the ground
that it was undated.
ISSUE:
W/N the alleged holographic will is dated, as provided for in Article
810 of CC.
HELD:
YES. 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.
The intention to show March 17 1968 as the date of the execution is
plain from the tenor of the succeeding words of the paragraph. It
states that “this being in the month of March 17th day, in the year
1968, and this decision and or instruction of mine is the matter to
be followed. And the one who made this writing is no other than
Melecio Labrador, their father.” This clearly shows that this is a
unilateral act of Melecio who plainly knew that he was executing a
will.
Azaola v. Singson
109 P 102
FACTS:
Fortunata S. Vda. De Yance died in Quezon City on September 9,
1957. Petitioner submitted for probate her holographic will, in
which Maria Azaola was made the sole heir as against the nephew,
who is the defendant. Only one witness, Francisoco Azaola, was
presented to testify on the handwriting of the testatrix. He testified
that he had seen it one month, more or less, before the death of the
testatrix, as it was given to him and his wife; and that it was in the
testatrix’s handwriting. He presented the mortgage, the special
power of the attorney, and the general power of attorney, and the
deeds of sale including an affidavit to reinforce his statement. Two
residence certificates showing the testatrix’s signature were also
exhibited for comparison purposes.
The probate was opposed 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 1957 and 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; and because the lone
witness presented “did not prove sufficiently that the body of the
will was written in the handwriting of the testatrix.”
Petitioner appealed, urging: first, that he was not bound to produce
more than one witness because the will’s authenticity was not
questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the
handwriting and signature of a holographic will, even if its
authenticity should be denied by the adverse party.
ISSUE:
W/N Article 811 of the Civil Code is mandatory or permissive.
HELD:
Article 811 is merely permissive and not mandatory. Since the
authenticity of the will was not contested, petitioner was not
required to produce more than one witness; but even if the
genuineness of the holographic will were contested, Article 811 can
not be interpreted 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. For it is not merely a
question of finding and producing any three witnesses; they must
be witnesses “who know the handwriting and signature of the
testator” and who can declare (truthfully, of course, even if the law
does not so express) “that the will and the signature are in the
handwriting of the testator”. There may be no available witness of
the testator’s hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility.
This is the reason why the 2nd paragraph of Article 811 allows the
court to resort to expert evidence. The law foresees the possibility
that no qualified witness may be found (or what amounts to the
same thing, that no competent witness may be willing to testify to
the authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
What the law deems essential is that the court should be convinced
of the will’s authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony
that the will 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.
Codoy v. Calugay
312 SCRA 333
FACTS:
On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the
deceased Matilde Seño 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.
The second witness was election registrar who was made to
produce and identify the voter’s affidavit, but failed to as the same
was already destroyed and no longer available.
The third, the deceased’s niece, claimed that she had acquired
familiarity with the deceased’s 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
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition
familiar with the signature of the deceased which appeared in the
claiming that the will was a forgery and that the same is even
latter’s application for pasture permit. The fifth, respondent
illegible. They raised doubts as regards the repeated appearing on
Evangeline Calugay, claimed that she had lived with the deceased
the will after every disposition, calling the same out of the ordinary.
since birth where she had become familiar with her signature and
If the will was in the handwriting of the deceased, it was improperly
that the one appearing on the will was genuine.
procured.

Codoy and Ramonal’s demurrer to evidence was granted by the

Evangeline Calugay, etc. presented 6 witnesses and various
lower court. It was reversed on appeal with the Court of Appeals
documentary evidence.
which granted the probate.
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.
ISSUE:
1. W/N Article 811 of the Civil Code, providing that at least three The election registrar was not able to produce the voter’s affidavit
witnesses explicitly declare the signature in a contested will as the for verification as it was no longer available.
genuine signature of the testator, is mandatory or directory.

The deceased’s niece saw pre-prepared receipts and letters of the

2. Whether or not the witnesses sufficiently establish the deceased and did not declare that she saw the deceased sign a
authenticity and due execution of the deceased’s holographic will. document or write a note.

HELD: 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
1. YES. The word “shall” connotes a mandatory order, an imperative
the will from the children of the deceased, putting in issue her
obligation and is inconsistent with the idea of discretion and that
motive.
the presumption is that the word “shall”, when used in a statute, is
mandatory.
Evangeline Calugay never declared that she saw the decreased write
a note or sign a document.
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
The former lawyer of the deceased expressed doubts as to the
will employ means to defeat the wishes of the testator.
authenticity of the signature in the holographic will.

The paramount consideration in the present petition is to

(As it appears in the foregoing, the three-witness requirement was
determine the true intent of the deceased.
not complied with.)

2. NO. We cannot be certain that the holographic will was in the

A visual examination of the holographic will convinces that the
handwriting of the deceased.
strokes are different when compared with other documents written
by the testator.
The clerk of court was not presented to declare explicitly that the
signature appearing in the holographic will was that of the
The records are remanded to allow the oppositors to adduce
deceased.
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.
Maloto v. Court of Appeals
G.R. No. 76464 February 29, 1988
Sarmiento, J. (Ponente)
Facts:
1. Petitioners and respondents are the neices/nephews or
Adriana Maloto who died in 1963. The four heirs believed that
the deceased did not leave a will, hesnce they filed an
intestate proceeding. However, the parties executed an
extrajudicial settlement of the estate dividing it into four
equal parts.
2. In 1967, Atty. Sulpicio Palma, ex-associate of the deceased's
counsel allegedly discovered her last will which was
purportedly dated 1940, inside a cabinet. Hence the
annulment of the proceedings and a probate petition was filed
by the devisees and legatees. The said will was allegedly
burned by the househelp under the instruction of the
deceased
3. The lower court denied the probate on the ground that the
animus revocandi in the burning of the will was sufficiently
proven.
Issue: Whether or not there was valid revocation of the will
RULING: No, there was no revocation. For a valid revocation
to occur,the 'corpus' and 'animus' must concur, one without
the other will not produce a valid revocation. The physical act
of destruction of a will must come with an intention to revoke
(animus revocandi). In this case, there's paucity of evidence to
comply with the said requirement. The paper burned was not
established to be the will and the burning though done under
her express direction was not done in her presence.
Under Art. 830, the physical act of destruction, in this case the
burning of the will, does not constitute an effective revocation,
unless it is coupled with animus revocandi on the part of the
testator. Since animus is a state of mind, it has to be
accompanied by an overt physical act of burning, tearing,
obliterating or cancelling done by the testator himself or by
another under his express direction and presence.
Gago vs. Mamuyac
G.R. No. L-26317 January 29, 1927
Johnson, J. (Ponente)
3. The lower court denied the probate and held that the same
has been annulled and revoked.
Issue: Whether or not there was a valid revocation of the will
RULING: Yes. The will was already cancelled in 1920. This was
inferred when after due search, the original will cannot be
found. When the will which cannot be found in shown to be in
the possession of the testator when last seen, the
presumption is that in the absence of other competent
evidence, the same was deemed cancelled or destroyed. The
same presumption applies when it is shown that the testator
has ready access to the will and it can no longer be found after
his death.

Facts:
1. Previously, Francisco Gago filed a petition for the probate of
a will of Miguel Mamuyac executed on July 27, 1918. The
oppositors alleged that the said will was already annulled and
revoked. It appeared that on April 16, 1919, the deceased
executed another will. The lower court denied the probate of
the first will on the ground of the existence of the second will.

2. Another petition was filed to seek the probate of the

second will. The oppositors alleged that the second will
presented was merely a copy. According to the witnesses, the
said will was allegedly revoked as per the testimony of Jose
Tenoy, one of the witnesses who typed the document.
Another witness testified that on December 1920 the original
will was actually cancelled by the testator.