WEEK 3 other to acknowledge his participation int he making of the will.

To permit
such situation would be absurd.
DIGESTS

SUCCESSION 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
Cruz v. Villasor Digest attesting or instrumental witnesses. He would be interested in sustaining the
Cruz v. Villasor validity of the will as it directly involves himself and the validity of his own
G.R. L-32213 November 26, 1973 act. he would be in an inconsistent position, thwarting the very purpose of the
Ponente: Esguerra, J.: acknowledgment, which is to minimize fraud.

Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of the Javellana v. Ledesma
late Valenti Cruz. However, the petitioner opposed the allowance of the will 97 P 258
alleging that it was executed through fraud, deceit, misrepresentation, and
undue influence. He further alleged that the instrument was executed without FACTS:
the testator having been informed of its contents and finally, that it was not
executed in accordance with law. The Court of First Instance of Iloilo admitted to probate the documents in the
Visayan dialectas the testament and codicil duly executed by the deceased
2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29,
will was acknowledged. Despite the objection, the lower court admitted the 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and
will to probate on the ground that there is substantial compliance with the Vicente Yap as witnesses. The contestant, Matea Ledesma, sister and nearest
legal requirements of having at least 3 witnesses even if the notary public surviving relative of said deceased, appealed from the decision, insisting that
was one of them. the said exhibits were not executed in conformity with law. Ledesma is
questioning the validity of the codicil contending that the fact that
Issue: Whether or not the will is valid in accordance with Art. 805 and the notary did not sign the instrument in the presence of the testator and the
806 of the NCC witness made the codicil was not executed in conformity with the law

HELD: NO. ISSUE:

The will is not valid. The notary public cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having W/N the codicil was validly executed.
signed the said will. An acknowledging officer cannot serve as witness at the
same time. HELD:

To acknowledge before means to avow, or to own as genuine, to assent, The instrumental witnesses (who happen to be the same ones who attested
admit, and 'before' means in front of or preceding in space or ahead of. The the will of 1950) asserted that after the codicil had been signed by the
notary cannot split his personality into two so that one will appear before the testatrix and the witnesses at the San Pablo Hospital, the same was signed
and sealed by notary public Gimotea on the same occasion. On the other
hand, Gimotea affirmed that he did not do so, but brought the codicil to his this will was opposed by Leticia, Placido’s sister. According to the notary
office, and signed and sealed it there. The variance does public who notarized the testator’s will, after the testator instructed him on
not necessarily imply conscious perversion of truth on the part of the the terms and dispositions he wanted on the will, the notary public told them
witnesses, but appears rather due to a well-established phenomenon, the to come back on 15 August 1983 to give him time to prepare. The testator
tendency of the mind, in recalling past events, to substitute the usual and his witnesses returned on the appointed date but the notary public was
and habitual for what differs slightly from it. out of town so they were instructed by his wife to come back on 9 August
1983. The formal execution was actually on 9 August 1983. He reasoned he
Whether or not the notary signed the certification of acknowledgment in the no longer changed the typewritten date of 15 June 1983 because he did not
presence of the testatrix and the witnesses, does not affect the validity of the like the document to appear dirty.
codicil. The new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. Petitioner’s argument:
A comparison of Articles 805 and 806 of the new Civil Code reveals that 1. At the time of the execution of the notarial will Placido was already 83
while testator and witnesses sign in the presence of each other, all that is years old and was no longer of sound mind.
thereafter required is that “every will must be acknowledged before 2. Josefina conspired with the notary public and the 3 attesting witnesses in
a notary public by the testator and the witnesses” (Art. 806); i.e., that the deceiving Placido to sign it. Deception is allegedly reflected in the varying
latter should avow to the certifying officer the authenticity of their signatures dates of the execution and the attestation of the will.
and the voluntariness of their actions in executing the
testamentary disposition. This was done in this case. The subsequent signing ISSUE:
and sealing by the notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the acknowledgment 1. W/N Placido has testamentary capacity at the time he allegedly executed
itself nor of the testamentary act. Hence their separate execution out of the the will.
presence of the testatrix and her witnesses cannot be said to violate the rule 2. W/N the signature of Placido in the will was procured by fraud or trickery.
that testaments should be completed without interruption. It is noteworthy
that Article 806 of the new Civil Code does not contain words requiring that HELD:
the testator and the witnesses should acknowledge the testament on the same
day or occasion that it was executed. 1. YES. Despite his advanced age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even their
Ortega v. Valmonte location. As regards the proper objects of his bounty, it was sufficient that he
478 SCRA 247 identified his wife as sole beneficiary. The omission of some relatives from
the will did not affect its formal validity. There being no showing of fraud in
FACTS: its execution, intent in its disposition becomes irrelevant.

Two years after the arrival of Placido from the United States and at the age of 2. NO. Fraud is a trick, secret devise, false statement, or pretense, by which
80 he wed Josefina who was then 28 years old. But in a little more than two the subject of it is cheated. It may be of such character that the testator is
years of wedded bliss, Placido died. Placido executed a notarial last will and misled or deceived as to the nature or contents of the document which he
testament written in English and consisting of 2 pages, and dated 15 June executes, or it may relate to some extrinsic fact, in consequence of the
1983¸but acknowledged only on 9 August 1983. The allowance to probate of deception regarding which the testator is led to make a certain will which, but
 for fraud, he would not have made. It might be possible to construe the averment as a jurat, even though it does
The party challenging the will bears the burden of proving the existence of not hew to the usual language thereof. A jurat is that part of an affidavit
fraud at the time of its execution. The burden to show otherwise shifts to the where the notary certifies that before him/her, the document was subscribed
proponent of the will only upon a showing of credible evidence of fraud. and sworn to by the executor.
Omission of some relatives does not affect the due execution of a will.
Moreover, the conflict between the dates appearing on the will does not
invalidate the document, “because the law does not even require that a Yet even if we consider what was affixed by the notary public as a jurat, the
notarial will be executed and acknowledged on the same occasion. The will would nonetheless remain invalid, as the express requirement of Article
variance in the dates of the will as to its supposed execution 806 is that the will be “acknowledged,” and not merely subscribed and sworn
and attestation was satisfactorily and persuasively explained by the notary to. The will does not present any textual proof, much less one under oath,
public and instrumental witnesses. 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
Azuela v. Court of Appeals G.R. No. 122880 (2006) for another all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator.
FACTS:
1. Petitioner Felix Azuela sought to admit to probate the notarial will of
Guerrero vs Bihis
Eugenia E. Igsolo. However, this was opposed by Geralda Castillo, who was
the attorney-in-fact of “the 12 legitimate heirs” of the decedent. According to G.R. No. 174144 April 17, 2007
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 Facts:
“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa
Lungsod ng Maynila.” Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and
respondent Resurreccion A. Bihis, died. Guerrero filed for probate in the
ISSUE: Whether or not the will is fatally defective as it was not properly RTC QC. Respondent Bihis opposed her elder sister’s petition on the
acknowledged before a notary public by the testator and the witnesses as following grounds: the will was not executed and attested as required by law;
required by Article 806 of the Civil Code. its attestation clause and acknowledgment did not comply with the
requirements of the law; the signature of the testatrix was procured by fraud
RULING: Yes, the will is fatally defective. By no manner of contemplation and petitioner and her children procured the will through undue and improper
can those words be construed as an acknowledgment. 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
An acknowledgement is the act of one who has executed a deed in going was “acknowledged” by the testatrix and the witnesses at the testatrix’s
before some competent officer or court and declaring it to be his act or deed. residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O.
It involves an extra step undertaken whereby the signore actually declares to Directo who was a commissioned notary public for and in Caloocan City.
the notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed. ISSUE:
Did the will “acknowledged” by the testatrix and the instrumental witnesses registered lands a notice of Lis Pendens.
before a notary public acting outside the place of his commission satisfy the When Gliceria died she had no descendants, ascendants, bros or sisses and 90
requirement under Article 806 of the Civil Code? yrs old. After which, her niece, Consuelo petitioned the court to be the
administratrix of the properties. The court approved this
HELD: because Consuelo has been was already managing the properties of the
deceased during her lifetime. What the respondents allege is that in the last
No. One of the formalities required by law in connection with the execution years of the deceased, Consuelo sought the transfer of certain parcels of land
of a notarial will is that it must be acknowledged before a notary public by valued at 300k for a sale price of 30k to her husband Alfonso
the testator and the witnesses. This formal requirement is one of the through fraud and intimidation. In addition, the oppositors presented
indispensable requisites for the validity of a will. In other words, a notarial evidence that Consuelo asked the court to issue new Certificates of Titles to
will that is not acknowledged before a notary public by the testator and the certain parcels of land for the purpose of preparing the inventory to be used
instrumental witnesses is void and cannot be accepted for probate. in the probate. Also shown was that NEW TCTs were issued by the RD for
certain lands of the deceased after Consuelo asked for the old TCTs.
The Notarial law provides: SECTION 240.Territorial jurisdiction. — The At the end of the probate proceedings, the court ruled that Counsuelo should
jurisdiction of a notary public in a province shall be co-extensive with the be made the administrator, and that the will was duly executed because of
province. The jurisdiction of a notary public in the City of Manila shall be these reasons: NO EVIDENCE HAS BEEN PRESENTED to establish that
co-extensive with said city. No notary shall possess authority to do any the deceased was not of sound mind, that eventough the allegations state that
notarial act beyond the limits of his jurisdiction. the deceased prepared another will in 1956 (12pages), the latter is not
prevented from executing another will in 1960 (1page), and that
inconsistencies in the testimonies of the witnesses prove their truthfulness.
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
ISSUE:
the instrumental witnesses. In the same vain, the testratix and the
instrumental witnesses could not have validly acknowledged the will before
Was the will in 1960 (1 page) duly/properly executed?
him. Thus, Felisa Tamio de Buenaventura’s last will and testament was, in
effect, not acknowledged as required by law.
HELD:
Garcia v. Vasquez
NO. Provision of Article 808 mandatory. Therefore, For all intents and
32 SCRA 489
purposes of the rules on probate, the testatrix was like a blind testator, and
the due execution of her will would have required observance of Article 808.
FACTS:
The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will himself (as when he is illiterate) , is to
This is a petition for appeal from the CFI of Manila admitting to probate the
make the provisions thereof known to him, so that he may be able to object if
will of Gliceria Avelino del Rosario (“Gliceria”) executed in 1960. Likewise,
they are not in accordance with his wishes. Likewise, the 1970 will was done
this is also an appeal to remove the
in Tagalog which the deceased is not well versed but in Spanish. This creates
current administrator, Consuelo Gonzales-Precilla( “Consuelo”) as special
doubt as to the due execution of the will and as well as the
administratrix of the estate on the ground of Consuelo possesses
typographical errors contain therein which show the haste in preparing the 1
interest adverse to the estate and to order the RD of Manila to annotate on the
page will as compared to the 12 page will created in 1956 written in Spanish. and attested as required by law; that the testator was insane or mentally
ALSO, as to the blindness, there was proof given by the testimony of the incapacitated due to senility and old age; that the will was executed under
doctor that the deceased could not read at near distances because of cataracts. duress, or influence of fear or threats; that it was procured by undue pressure
(Testatrix’s vision was mainly for viewing distant objects and not for reading and influence on the part of the beneficiary; and that the signature of the
print.) Since there is no proof that it was read to the deceased twice, the will testator was procured by fraud or trick.
was NOT duly executed.
ALSO, Consuelo should be removed as administrator because she is not ISSUE:
expected to sue her own husband to reconvey the lands to the estate alleged
to have been transferred by the deceased to her own husband. W/N notarial will of Brigido Alvarado should be admitted to probate despite
The notice of lis pendens is also not proper where the issue is not an action in allegations of defects in the execution and attestation thereof as testator was
rem, affecting real property or the title thereto. allegedly blind at the time of execution and the double-reading requirement
under Art. 808 of the NCC was not complied with.
Alvarado v. Gaviola
226 SCRA 347 HELD:

FACTS: YES. The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the
On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will substantial requirements of law in order to insure the authenticity of the will,
entitled “Huling Habilin” wherein he disinherited an illegitimate son, the formal imperfections should be brushed aside when they do not affect its
petitioner Cesar Alvarado, and expressly revoked a previously executed purpose and which, when taken into account, may only defeat the testator’s
holographic will at the time awaiting probate before the RTC of Laguna. will.
According to Bayani Ma. Rino, private respondent, he was present when the Cesar Alvardo was correct in asserting that his father was not totally blind (of
said notarial will was executed, together with three instrumental witnesses counting fingers at 3 feet) when the will and codicil were executed, but he
and the notary public, where the testator did not read the will himself, can be so considered for purposes of Art. 808.
suffering as he did from glaucoma. That Art. 808 was not followed strictly is beyond cavil.
Rino, a lawyer, drafted the eight-page document and read the same aloud However, in the case at bar, there was substantial compliance where the
before the testator, the three instrumental witnesses and the notary public, the purpose of the law has been satisfied: that of making the provisions known to
latter four following the reading with their own respective copies previously the testator who is blind or incapable of reading the will himself (as when he
furnished them. is illiterate) and enabling him to object if they do not accord with his wishes.
Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng Ilang Pagpapasiya Rino read the testator’s will and codicil aloud in the presence of the testator,
na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni his three instrumental witnesses, and the notary public.
Brigido Alvarado” was executed changing some dispositions in the notarial Prior and subsequent thereto, the testator affirmed, upon being asked, that the
will to generate cash for the testator’s eye operation. contents read corresponded with his instructions.
Said codicil was likewise not read by Brigido Alvarado and was read in the Only then did the signing and acknowledgment take place.
same manner as with the previously executed will. There is no evidence that the contents of the will and the codicil were not
When the notarial will was submitted to the court for probate, sufficiently made known and communicated to the testator.
Cesar Alvarado filed his opposition as he said that the will was not executed With four persons, mostly known to the testator, following the
reading word for word with their own copies, it can be safely concluded that which held that the Deed of Donation was actually a donation mortis causa,
the testator was reasonably assured that what was read to him were the terms not inter vivos and as such it had to, but did not, comply with the formalities
actually appearing on the typewritten documents. of a will. Due to the denial of the petitioner’s Motion for Reconsideration,
The rationale behind the requirement of reading the will to the testator if he is the present Petition for Review has been filed.
blind or incapable of reading the will to himself (as when he is illiterate), is
to make the provisions thereof known to him, so that he may be able to object
Whether or not the Deed of Donation is donation inter vivos and whether or
if they are not in accordance with his wishes.
not such deed is valid.
Although there should be strict compliance with the
substantial requirements of law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not affect its If so, whether or not Matilde Aluad has the right to convey the lots in
purpose and which, when taken into account, may only defeat the testator’s question to Zenaido Aluad.
will.
The Court finds the donation to Maria Aluad (petitioner’s mother) one of
Danilo ALUAD, et al., petitioners vs. Zenaido ALUAD, respondent mortis causa, it having the following characteristics:
G.R. No. 176943, October 17, 2008

Petitioner’s mother, Maria Aluad and respondent Zenaido Aluad were raised 1. It conveys no title or ownership to the transferee before the death of
by the childless spouses Matilde and Crispin Aluad. Crispin was the owner of the transferor, or what amounts to the same thing, that the transferor
six lots of Pilar Cadastre, Capiz. After his death, Matilde adjudicated the lots should retain the ownership (full or naked) and control of the
to herself and thereafter, she executed a Deed of Donation of Real Property property while alive;
Inter Vivos in favor of Maria covering all the six lots. The Deed provided that
such will become effective upon the death of the Donor, but in the event that 2. That before the death of the transferor, the transfer should be
the Donee should die before the Donor, the present donation shall be deemed revocable, by the transferor at will, ad nutum, but revocability may
rescinded. Provided, however, that anytime during the lifetime of the Donor be provided for indirectly by means of a reserved power in the donor
or anyone of them who should survive, they could use, encumber or even to dispose of the properties conveyed; and
dispose of any or even all of the parcels of the land.

3. That the transfer should be void of the transferor should survive the
Matilde sold one of the lots to Zenaido and subsequently, Matilde executed a transferee.
last will and testament devising four (4) of the lots to Maria and the
remaining lot to Zenaido. Maria died a few months after Matilde’s death.
Thereafter, Maria’s heirs (herein petitioners) filed before the RTC a The phrase in the earlier-qouted Deed of Donation “to become effective upon
complaint for declaration and recovery of ownership and possession of the the death of the DONOR” admits of no other interpretation than to mean that
two lots conveyed and donated to Zenaido, alleging that no rights have been Matilde did not intend to transfer the ownership of the six lots to petitioner’s
transmitted to the latter because such lots have been previously alienated to mother during the former’s lifetime. Further the statement, “anytime during
them to Maria via the Deed of Donation. The lower court decided in favor of the lifetime of the DONOR or anyone of them who should survive, they
the petitioners however, CA reversed said decision upon appeal of Zenaido could use, encumber or even dispose of any or even all the parcels of land
herein donated,” means that Matilde retained ownership of the lots and
reserved in her the right to dispose them. For the right to dispose of a thing W/N the date “FEB./61 ” appearing on the holographic Will of the deceased
without other limitations than those established by law is an attribute of Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the
ownership. The phrase, “anyone of them who should survive” is out of sync. Civil Code.
For the Deed of Donation clearly stated that it would take effect upon the
death of the donor, hence, said phrase could only have referred to the donor. HELD:

Valid date.
The donation being then mortis causa, the formalities of a will should have
been observed but they were not, as it was witnessed by only two, not three
This will not be the first time that this Court departs from a strict and literal
or more witnesses following Article 805 of the Civil Code. It is void and
application of the statutory requirements regarding the due execution of
transmitted no right to petitioner’s mother. But even assuming arguendo that
Wills. The underlying and fundamental objectives permeating the provisions
the formalities were observed, since it was not probated, no right to the two
of the law wills consists in the liberalization of the manner of their execution
lots was transmitted to Maria. Matilde thus validly disposed the lot to
with the end in view of giving the testator more freedom in expressing his
Zenaido by her last will and testament, subject to the qualification that her
last wishes, but with sufficient safeguards and restrictions to prevent the
will must be probated. With respect to the conveyed lot, the same had been
commission of fraud and the exercise of undue and improper pressure and
validly sold by Matilde to Zenaido.
influence upon the testator. If a Will has been executed in
substantial compliance with the formalities of the law, and the possibility of
Roxas v. De Jesus bad faith and fraud in the exercise thereof is obviated, said Will should be
134 SCRA 245 admitted to probate (Rey v. Cartagena 56 Phil. 282).

FACTS: 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
Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. for purpose sought to be accomplished by such requisite is actually attained by
partition of the estate of the deceased and also delivered the holographic will the form followed by the testator. In Abangan v. Abanga 40 Phil. 476, we
of the deceased. Simeon stated that he found a notebook belonging to ruled that: The object of the solemnities surrounding the execution of wills is
deceased, which contained a “letter-will” entirely written and signed in to close the door against bad faith and fraud, to avoid substitution of wills
deceased’s handwriting. The will is dated “FEB./61 ” and states: “This is my and testaments and to guaranty their truth and authenticity. …
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 In particular, a complete date is required to provide against such
deceased, identifying her handwriting and signature. Respondent opposed contingencies as that of two competing Wills executed on the same day, or of
probate on the ground that it such does not comply with Article 810 of the a testator becoming insane on the day on which a Will was executed (Velasco
CC because the date contained in a holographic will must signify the year, v. Lopez, 1 Phil. 720). There is no such contingency in this case.
month, and day.
We have carefully reviewed the records of this case and found no evidence of
ISSUE: bad faith and fraud in its execution nor was there any substitution of Wins
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 YES. The law does not specify a particular location where the date should be
as to its genuineness and due execution. All the children of the testatrix agree placed in the will. The only requirements are that the date be in the will itself
on the genuineness of the holographic Will of their mother and that she had and executed in the hand of the testator.
the testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that the The intention to show March 17 1968 as the date of the execution is plain
holographic Will is fatally defective because the date “FEB./61 ” appearing from the tenor of the succeeding words of the paragraph. It states that “this
on the holographic Will is not sufficient compliance with Article 810 of the being in the month of March 17th day, in the year 1968, and this decision and
Civil Code. This objection is too technical to be entertained. 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
As a general rule, the “date” in a holographic Will should include the day, shows that this is a unilateral act of Melecio who plainly knew that he was
month, and year of its execution. However, when as in the case at bar, there is executing a will.
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 Ajero v. CA
date “FEB./61” appearing on the holographic Will is a valid compliance with 236 SCRA 488
Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance. FACTS:

Labrador v. CA The holographic will of Annie San was submitted for probate.
184 SCRA 170 Private respondent opposed the petition on the grounds that: neither the
testament’s body nor the signature therein was in decedent’s handwriting;
FACTS: it contained alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners through improper
Melecio died leaving behind a parcel of land to his heirs. However, during pressure and undue influence.
probate proceedings, Jesus and Gaudencio filed an opposition on the ground
that the will has been extinguished by implication of law alleging that before The petition was also contested by Dr. Ajero with respect to the disposition in
Melecio’s death, the land was sold to them evidenced by TCT No. 21178. the will of a house and lot. He claimed that said property could not be
Jesus eventually sold it to Navat. conveyed by decedent in its entirety, as she was not its sole owner.
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. However, the trial court still admitted the decedent’s holographic will to
probate.
ISSUE: 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
W/N the alleged holographic will is dated, as provided for in Article 810 of finds no reason for the disallowance of the will for its failure to comply with
CC. the formalities prescribed by law nor for lack of testamentary capacity of the
testatrix.
HELD:
On appeal, the CA reversed said Decision holding that the decedent did not Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code
comply with Articles 313 and 314 of the NCC. It found that certain enumerate the grounds for disallowance of wills. These lists are exclusive; no
dispositions in the will were either unsigned or undated, or signed by not other grounds can serve to disallow a will.
dated. It also found that the erasures, alterations and cancellations made had
not been authenticated by decedent. In a petition to admit a holographic will, the only issues to be resolved are:

ISSUE: 1.whether the instrument submitted is, indeed, the decedent’s last will and
testament;
Whether the CA erred in holding that Articles 813 and 814 of the NCC were
not complies with. 2.whether said will was executed in accordance with the formalities
prescribed by law;
HELD:
3.whether the decedent had the necessary testamentary capacity at the time
YES. A reading of Article 813 shows that its requirement affects the validity the will was executed; and
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 4.whether the execution of the will and its signing were the voluntary acts of
these dispositions cannot be effectuated. Such failure, however, does not the decedent.
render the whole testament void.
Likewise, a holographic will can still be admitted to probate notwithstanding The object of the solemnities surrounding the execution of wills is to close
non-compliance with the provisions of Article 814. the door against bad faith and fraud; accordingly, laws on this subject should
be interpreted to attain these primordial ends.
Unless the authenticated alterations, cancellations or insertions were made on
the date of the holographic will or on testator’s signature, their presence does In the case of holographic wills, what assures authenticity is the requirement
not invalidate the will itself. The lack of authentication will only result in that they be totally authographic or handwritten by the testator himself.
disallowance of such changes. Failure to strictly observe other formalities will no result in the disallowance
of a holographic will that is unquestionable handwritten by the testator.
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) Kalaw v. Relova Digest
separate from that which provides for the necessary conditions for the Kalaw v. Relova
validity of the holographic will (Article 810).
G.R. No. L-40207 September 28, 1984
This separation and distinction adds support to the interpretation that only Melencio-Herrera, J. (Ponente)
the requirements of Article 810 of the NCC – and not those found in Articles
813 and 814 – are essential to the probate of a holographic will.
Facts:
1. Gregorio Kalaw, the private respondent, claiming to be the sole heir of According to the witnesses, Felicidad did not want her husband to know
sister Natividad, filed a peition for probate of the latter's holographic will in about it, but she had made known to her other relatives that she made a will.
1968. The will contained 2 alterations: a) Rosa's name, designated as the sole
heir was crossed out and instead "Rosario" was written above it. Such was Opposing the petition, her surviving husband Ildefonso Yap asserted that the
not initialed, b) Rosa's name was crossed out as sole executrix and Gregorio's deceased had not left any will, nor executed any testament during her
ma,e was written above it. This alteration was initialed by the testator. lifetime.
After hearing the parties and considering their evidence, the Judge refused to
probate the alleged will on account of the discrepancies arising from
2. Rosa contended that the will as first written should be given effect so that the facts. For one thing, it is strange that Felicidad made her will known to so
she would be the sole heir. The lower court denied the probate due to the many of her relatives when she wanted to keep it a secret and she would not
unauthenticated alterations and additions. 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.
Issue: Whether or not the will is valid
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.
RULING: No, the will is voided or revoked since nothing remains in the will
which could remain valid as there was only one disposition in it. Such was
ISSUE:
altered by the substitution of the original heir with another. To rule that the
first will should be given effect is to disregard the testatrix' change of mind.
1. May a holographic will be probated upon the testimony of witnesses who
However, this change of mind cannot be given effect either as she failed to
have allegedly seen it and who declare that it was in the handwriting of the
authenticate it in accordance with Art. 814, or by affixing her full signature.
testator?
2. W/N Felicidad could have executed the holographic will.
Gan v. Yap
104 P 509
HELD:
FACTS:
1. No. The will must be presented.
Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan,
The New Civil Code effective in 1950 revived holographic wills in its arts.
and in Manila.
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
Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFI with
no other form and may be made in or out of the Philippines, and need not be
a petition for the probate of a holographic will allegedly executed by the
witnessed.”
deceased.
The will was not presented because Felicidad’s husband, Ildefonso,
This is a radical departure from the form and solemnities provided for wills
supposedly took it. What was presented were witness accounts of relatives
under Act 190, which for fifty years (from 1901 to 1950) required wills to be
who knew of her intention to make a will and allegedly saw it as well.
subscribed by the testator and three credible witnesses in each and every Spanish commentators agree that one of the greatest objections to the
page; such witnesses to attest to the number of sheets used and to the fact that holographic will is that it may be lost or stolen — an implied admission that
the testator signed in their presence and that they signed in the presence of such loss or theft renders it useless.
the testator and of each other. Authenticity and due execution is the
dominant requirements to be fulfilled when such will is submitted to the As it is universally admitted that the holographic will is usually done by the
courts for allowance. For that purpose the testimony of one of the subscribing testator and by himself alone, to prevent others from knowing either its
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If execution or its contents, the above article 692 could not have the idea of
there is, the three must testify, if available. From the testimony of such simply permitting such relatives to state whether they know of the will, but
witnesses (and of other additional witnesses) the court may form its opinion whether in the face of the document itself they think the testator wrote it.
as to the genuineness and authenticity of the testament, and Obviously, this they can’t do unless the will itself is presented to the Court
the circumstances its due execution. and to them.

With regard to holographic wills, no such guaranties of truth and veracity are This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
demanded, since as stated, they need no witnesses; provided however, that admittedly the basis of the Spanish Civil Code provisions on the matter.
they are “entirely written, dated, and signed by the hand of the testator (According to the Fuero, the will itself must be compared with specimens of
himself.” the testators handwriting.)
“In the probate of a holographic will” says the New Civil Code, “it shall be
necessary that at least one witness who knows the handwriting and signature All of which can only mean: the courts will not distribute the property of the
of the testator explicitly declare that the will and the signature are in the deceased in accordance with his holographic will, unless they are shown his
handwriting of the testator. If the will is contested, at least three such handwriting and signature.
witnesses shall be required. In the absence of any such witnesses, (familiar
with decedent’s handwriting) and if the court deem it necessary, expert Taking all the above circumstances together, we reach the conclusion that the
testimony may be resorted to.” 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
The witnesses need not have seen the execution of the holographic will, but will.
they must be familiar with the decedent’s handwriting. Obviously, when the At this point, before proceeding further, it might be convenient to explain
will itself is not submitted, these means of opposition, and of assessing the why, unlike holographic wills, ordinary wills may be proved by testimonial
evidence are not available. And then the only guaranty of authenticity — the evidence when lost or destroyed. The difference lies in the nature of the wills.
testator’s handwriting — has disappeared. In the first, the only guarantee of authenticity is the handwriting itself; in the
second, the testimony of the subscribing or instrumental witnesses (and of the
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of notary, now). The loss of the holographic will entails the loss of the only
a lost or destroyed will by secondary — evidence the testimony of witnesses, medium of proof; if the ordinary will is lost, the subscribing witnesses
in lieu of the original document. Yet such Rules could not have contemplated are available to authenticate.
holographic wills which could not then be validly made here. Could Rule 77
be extended, by analogy, to holographic wills? (NO) In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood that
they would be called by the testator, their intimacy with the testator, etc. And 2. No. Even if oral testimony were admissible to establish and probate a lost
if they were intimates or trusted friends of the testator they are not likely to holographic will, we think the evidence submitted by herein petitioner is so
end themselves to any fraudulent scheme to distort his wishes. Last but not tainted with improbabilities and inconsistencies that it fails to measure up to
least, they can not receive anything on account of the will. that “clear and distinct” proof required by Rule 77, sec. 6.

Whereas in the case of holographic wills, if oral testimony Rodelas v. Aranza

were admissible only one man could engineer the fraud this way: after 119 SCRA 16
making a clever or passable imitation of the handwriting and signature of the
deceased, he may contrive to let three honest and credible witnesses see and FACTS:
read the forgery; and the latter, having no interest, could easily fall for it, and
in court they would in all good faith affirm its genuineness and authenticity. Rodelas filed a petition with the CFI of Rizal for the probate of the
The will having been lost — the forger may have purposely destroyed it in an holographic will of Ricardo B. Bonilla and the issuance of letters
“accident” — the oppositors have no way to expose the trick and the error, testamentary in her favor.
because the document itself is not at hand. And considering that the Aranza, et al. filed a MTD on the grounds of:
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 1.Rodelas was estopped from claiming that the deceased left a will by failing
most important ones, may go undetected. 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;
If testimonial evidence of holographic wills be permitted, one more
objectionable feature — feasibility of forgery — would be added to the 2.the copy of the alleged holographic will did not contain a disposition of
several objections to this kind of wills listed by Castan, Sanchez Roman and property after death and was not intended to take effect after death, and
Valverde and other well-known Spanish Commentators and teachers of Civil therefore it was not a will, it was merely an instruction as to the management
Law. and improvement of the schools and colleges founded by the decedent;

One more fundamental difference: in the case of a lost will, the three 3.the hollographic will itself, and not an alleged copy thereof, must be
subscribing witnesses would be testifying to a fact which they saw, namely produced, otherwise it would produce no effect because lost or destroyed
the act of the testator of subscribing the will; whereas in the case of a lost holographic wills cannot be proved by secondary evidence unlike ordinary
holographic will, the witnesses would testify as to their opinion of the wills.
handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting 4.the deceased did not leave any will, holographic or otherwise, executed and
itself is not at hand. attested as required by law.

In fine, even if oral testimony were admissible to establish and probate a lost MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.
holographic will, we think the evidence submitted by herein petitioner is so
tainted with improbabilities and inconsistencies that it fails to measure up to The CFI set aside its order and dismissed the petition for the probate of the
that “clear and distinct” proof required by Rule 77, sec. 6. 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 photographic or photostatic copy. Even a mimeographed or carbon copy; or
said wills.” by other similar means, if any, whereby the authenticity of the handwriting of
the deceased may be exhibited and tested before the probate court,”
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 Azaola v. Singson
years from the time of the execution of the will to the death of the decedent 109 P 102
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. FACTS:

Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957.
et al. moved to forward the case to the SC as it involves a question of law not Petitioner submitted for probate her holographic will, in which Maria Azaola
of fact. 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
ISSUE: 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
W/N a holographic will which was lost or cannot be found can be proved by in the testatrix’s handwriting. He presented the mortgage, the special power
means of a photostatic copy. of the attorney, and the general power of attorney, and the deeds of sale
including an affidavit to reinforce his statement. Two residence certificates
HELD: showing the testatrix’s signature were also exhibited
for comparison purposes.
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 probate was opposed on the ground that (1) the execution of the will was
the handwriting of the testator in said will. It is necessary that there be procured by undue and improper pressure and influence on the part of the
a comparison between sample handwritten statements of the testator and the petitioner and his wife, and (2) that the testatrix did not seriously intend the
handwritten will. 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
But, a photostatic copy or xerox copy of the holographic will may be on the will.
allowed because comparison can be made by the probate court with the
standard writings of the testator. The probate court would be able to The probate was denied on the ground that under Article 811 of the Civil
determine the authenticity of the handwriting of the testator. 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
In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that “the being contested; and because the lone witness presented “did not prove
execution and the contents of a lost or destroyed holographic will may not be sufficiently that the body of the will was written in the handwriting of the
proved by the bare testimony of witnesses who have seen and/or read such testatrix.”
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 Petitioner appealed, urging: first, that he was not bound to produce more than
Footnote 8 of said decision, it says that “Perhaps it may be proved by a one witness because the will’s authenticity was not questioned; and second,
that Article 811 does not mandatorily require the production of three consider it unnecessary to call for expert evidence. On the other hand, if no
witnesses to identify the handwriting and signature of a holographic will, competent witness is available, or none of those produced is convincing, the
even if its authenticity should be denied by the adverse party. 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
ISSUE: the state is as much interested as the proponent that the true intention of the
testator be carried into effect.
W/N Article 811 of the Civil Code is mandatory or permissive.
Codoy v. Calugay
HELD: 312 SCRA 333

Article 811 is merely permissive and not mandatory. Since the authenticity of FACTS:
the will was not contested, petitioner was not required to produce more than
one witness; but even if the genuineness of the holographic will On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
were contested, Article 811 can not be interpreted to require the compulsory Patigas, devisees and legatees of the holographic will of the deceased Matilde
presentation of three witnesses to identify the handwriting of the testator, Seño Vda. de Ramonal, filed a petition for probate of the said will. They
under penalty of having the probate denied. Since no witness may have been attested to the genuineness and due execution of the will on 30 August 1978.
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 Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition
possessing the requisite qualifications is a matter beyond the control of the claiming that the will was a forgery and that the same is even illegible. They
proponent. For it is not merely a question of finding and producing any three raised doubts as regards the repeated appearing on the will after
witnesses; they must be witnesses “who know the handwriting and signature every disposition, calling the same out of the ordinary. If the will was in the
of the testator” and who can declare (truthfully, of course, even if the law handwriting of the deceased, it was improperly procured.
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 Evangeline Calugay, etc. presented 6 witnesses and various documentary
even if so familiarized, the witnesses may be unwilling to give a positive evidence.
opinion. Compliance with the rule of paragraph 1 of Article 811 may thus The first witness was the clerk of court of the probate court who produced
become an impossibility. 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
This is the reason why the 2nd paragraph of Article 811 allows the court to identify the voter’s affidavit, but failed to as the same was already destroyed
resort to expert evidence. The law foresees the possibility that no qualified and no longer available.
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 The third, the deceased’s niece, claimed that she had acquired familiarity
for resort to expert evidence to supply the deficiency. 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
What the law deems essential is that the court should be convinced of the deceased always issued receipts. The niece also testified that the deceased
will’s authenticity. Where the prescribed number of witnesses is produced left a holographic will entirely written, dated and signed by said deceased.
and the court is convinced by their testimony that the will is genuine, it may
The fourth witness was a former lawyer for the deceased in the intestate 2. NO. We cannot be certain that the holographic will was in the handwriting
proceedings of her late husband, who said that the signature on the will was of the deceased.
similar to that of the deceased but that he can not be sure.
The clerk of court was not presented to declare explicitly that the signature
The fifth was an employee of the DENR who testified that she was familiar appearing in the holographic will was that of the deceased.
with the signature of the deceased which appeared in the latter’s application
for pasture permit. The fifth, respondent Evangeline Calugay, claimed that The election registrar was not able to produce the
she had lived with the deceased since birth where she had become familiar voter’s affidavit for verification as it was no longer available.
with her signature and that the one appearing on the will was genuine.
The deceased’s niece saw pre-prepared receipts and letters of the deceased
Codoy and Ramonal’s demurrer to evidence was granted by the lower court. and did not declare that she saw the deceased sign a document or write a
It was reversed on appeal with the Court of Appeals which granted the note.
probate.
The will was not found in the personal belongings of the deceased but was in
ISSUE: the possession of the said niece, who kept the fact about the will from the
children of the deceased, putting in issue her motive.
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 Evangeline Calugay never declared that she saw the decreased write a note or
the testator, is mandatory or directory. sign a document.

2. Whether or not the witnesses sufficiently establish the authenticity and due The former lawyer of the deceased expressed doubts as to the authenticity of
execution of the deceased’s holographic will. the signature in the holographic will.

HELD: (As it appears in the foregoing, the three-witness requirement was not
complied with.)
1. YES. The word “shall” connotes a mandatory order, an imperative
obligation and is inconsistent with the idea of discretion and that the A visual examination of the holographic will convinces that the strokes are
presumption is that the word “shall”, when used in a statute, is mandatory. different when compared with other documents written by the testator.

In the case at bar, the goal to be achieved by the law, is to give effect to the The records are remanded to allow the oppositors to adduce evidence in
wishes of the deceased and the evil to be prevented is the possibility that support of their opposition.
unscrupulous individuals who for their benefit will employ means to defeat
the wishes of the testator. 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
The paramount consideration in the present petition is to determine the true and to guaranty their truth and authenticity. Therefore, the laws on this
intent of the deceased. 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.