Gan V Yap

45. Testate Estate of Felicidad Esguerra Alto Yap deceased, Fausto E. GAN v.
will and the signature are in the handwriting of the testator. If the
Ildefonso YAP will is contested, at least three of such witnesses shall be required.
G.R. No L-12190. | Date August 30,1958
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost
Topic: Allowance and Disallowance of wills or destroyed will by secondary evidence: the testimony of witnesses, in lieu of the
original document. Yet such Rules could not have contemplated holographic wills
Doctrine: The loss of the holographic will entails the loss of the only medium of which could not then be validly made here. However, the court ruled that even if oral
proof. testimony were admissible to establish and probate a lost holographic will, the
evidence submitted by herein petitioner is tainted with improbabilities and
Note: facts were copied from original digest; if you’re looking where this case was inconsistencies that it fails to measure up to that "clear and distinct" proof required
mentioned, its under the Art. 837 discussion though by Rule 77, sec. 6.
Section 6 Proof of Lost or Destroyed Will. Certificate Thereupon.
FACTS — No will shall be proved as a lost or destroyed will unless the
1. Felicidad Esguerra Alto Yap died of heart failure leaving properties in Pulilan, execution and validity of the same be established, and the will is
Bulacan and in Manila. proved to have been in existence at the time of the death of the
2. Fausto Gan then instituted a petition for the probate of a holographic will testator, or is shown to have been fraudulently or accidentally
allegedly executed by the deceased. destroyed in the lifetime of the testator without his knowledge, nor
3. Ildefonso Yap, the husband of the deceased, opposed the petition asserting that unless its provisions are clearly and distinctly proved by at least
the deceased had not left any will nor testament in her lifetime. two credible witnesses. When a lost will is proved, the provisions
4. The “will” itself was not presented by the petitioners in the Court. They instead thereof must be distinctly stated and certified by the judge, under
tried to establish its contents by the testimonies of other family members which the seal of the court, and the certificate must be filed and recorded
the deceased allegedly confided. as other wills are filed and recorded.
5. According to the petitioner, the deceased wanted to make a will but wanted to
keep it a secret especially from her husband Ildefonso. One of the greatest objections to the holographic will is that it may be lost or stolen,
6. However, the trial judge found that the will was known to several relatives of there is an implied admission that such loss or theft renders it useless since the Civil
the deceased. Code requires it to be protocoled and presented to the judge, (Art. 689) who shall
7. Also, according to them the will was placed in her purse while she was dying in subscribe it and require its identity to be established by the three witnesses who
the hospital. depose that they have no reasonable doubt that the will was written by the testator
8. The judge found it weird that the deceased would place the holographic will in (Art. 691). And if the judge considers that the identity of the will has been proven he
her purse where Ildefonso would have access to it. (diba she wanted it to be shall order that it be filed (Art. 693). All these, imply presentation of the will itself.
secret from her husband) Art. 692 bears the same implication, to a greater degree. It requires that the surviving
9. Because of the discrepancies with the facts alleged by the petitioners, the judge spouse and the legitimate ascendants and descendants be summoned so that they may
refused to probate the will. make "any statement they may desire to submit with respect to the authenticity of the
will." As it is universally admitted that the holographic will is usually done by the
ISSUE: WON a holographic will may be probated upon the testimony of testator and by himself alone, to prevent others from knowing either its execution or
witnesses who have allegedly seen it and who declare that it was in the handwriting its contents, the above article 692 could not have the idea of simply permitting such
of the testator? relatives to state whether they know of the will, but whether in the face of the
document itself they think the testator wrote it. Obviously, they can't do this
HELD: NO. The will cannot be probated for the reason that the will itself was not unless the will itself is presented to the Court and to them.
presented for examination. The execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have
In holographic wills, no guaranties of truth and veracity are demanded, since as
seen and/or read such will. When the will itself is not submitted, the means of
stated, they need no witnesses; provided that they are entirely written, dated and
opposition and of assessing the evidence are not available. signed by the hand of the testator himself. Because of this, the court reached the
New Civil Code, Art. 811. In the probate of a holographic will, it
conclusion that the execution and the contents of a lost or destroyed holographic will
shall be necessary that at least one witness who knows the
may not be proved by the bare testimony of witnesses who have seen and/or read
handwriting and signature of the testator explicitly declare that the
such will.

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45. Testate Estate of Felicidad Esguerra Alto Yap deceased, Fausto E. GAN v.

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