According to JBL Reyes, “Liberalization Running Riot,”
instead a possible rewording would be –
In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if such defects and imperfections can be supplied by an examination of the will itself and it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.
Examples
1. A failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination.
2. Failure by the attestation clause to state that the witnesses signed in one another’s presence should be considered a FATAL FLAW since the attestation clause is the only textual guarantee of compliance.
The rule is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed.
However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.
CASES
Caneda v. CA
- 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.
WON, the attestation clause in the will of the testator is fatally defective or can be cured under the art. 809.
- 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.
Cases for Arts. 807-809 Gil v. Murciano
- The CFI of Manila admitted to probate the alleged will and testament of the deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to the SC, arguing that the will was void since the attestation clause thereof does not state that the alleged testator signed the will. It declares only that it was signed by the witnesses.
Whether or no the will is valid.
- NO. This is a fatal defect, for the precise purpose of the attestation clause is to certify that the testator signed the will, this being the most essential element of the clause.
- Without it there is no attestation at all. It is said that the court may correct a mere clerical error.
- This is too much of a clerical error for it affects the very essence of the clause. Alleged errors may be overlooked or corrected only in matters of form which do not affect the substance of the statement.
- Correction may not be cured by inference considering the clear, unequivocal, language of the statute as to how the attestation clause should be made. It is to be supposed that the drafter of the alleged will read the clear words of the statute when he prepared it. For the court to supply alleged deficiencies would be against the evident policy of the law.
- In adopting liberal construction of a will, evidence aluinde is not allowed to fill the void or supply missing details. What is permitted is a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of the law.
- The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only upon a compliance with the requirements of the statute. The formalities which the Legislature has prescribed for the execution of a will are essential to its validity, and cannot be disregarded.
- The mode so prescribed is the measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with this mode.
- For the purpose of determining whether a will has been properly executed, the intention of the testator in executing it is entitled to no consideration.
- For that purpose only the intention of the Legislature, as expressed in the language of the statute, can be considered by the court, and whether the will as presented, shows a compliance with the statute.
Cuevas v. Achacoso
- Valentina Cuevas, filed a petition for the probate of the will of Jose Venzon, her husband.
- Pilar Achacoso filed an alternative petition for the probate of a pervious will praying that if the will submitted by the widow be rejected, the other will be admitted in lieu thereof.
-
The previous will names Pilar Achacoso as one of the heirs, a statement absent in the 2nd will.-
Pilar opposes the probate of the 2nd for lack of attestation clause, or if there be one that it is not signed by the instrumental witnesses, a defect which invalidates the will.-
The will winds up with the ff. clause: In witness whereof, I sign this testament or last will….in the presence of the 3 witnesses…Whether the attestation clause is valid.
- Yes. The only anomaly is that it appears to be an attestation made by the testator himself more than by the instrumental witnesses. This, however, is not serious or substantial as to affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures of the 3 instrumental witnesses.
- Instrumental witness is one who takes part in the execution of an instrument or writing, he does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the 3 witnesses have signed the will immediately under the signature of the testator, show that they have in fact attested not only the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause.
- The object of the solemnities surrounding the execution of the wills is to close the door against bad faith and fraud, to avoid substitution of the wills and testament and to guarantee 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 of the right to make a will.
So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator’s will must be disregarded.
Abada v. Abaja
- Spouses Abada and Toray died without legitimate children.
- Alipio Abaja filed with the CFI a petition for the probate of the will of Abada. Abada allegedly names his testamentary heirs his natural children: Eulogio and Rosario. Alipio is the son of Eulogio.
- Caponong opposed the petition on the ground that Abada left no will when he died.
- Caponong alleged that the will should be disallowed on the following reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last will of the testator; and (3) it was procured by undue and improper pressure and influence on the part of the beneficiaries.
- Later, Caponong-Noble was named as Special Administratix of the estate of Abada and Toray. Caponong-Noble moved for the dismissal of the petition for probate of the will of Abada but such motion was denied.
- When the case was submitted for decision, a Resolution was rendered where it was held that there was a substantial compliance with the formalities of the will. In the said Resolution, the trial court only determined whether the will of Abada has an attestation clause as required by law.
- Upon appeal, the CA affirmed the trial court’s Resolution.
Hence, this appeal.
Whether the CA erred in sustaining the trial court in admitting to probate the will of Abada.
- NO. The SC affirmed the decision of the Court of Appeals.
What laws apply to the probate of the last will of Abada?
- Abada executed his will on June 1932. The laws in force at that time are the Old Civil Code and the Code of Civil Procedure.
Whether the will of Abada requires acknowledgement before a notary public.
-
NO. What Caponong-Noble cited was Arts. 804 & 806 of the NCC. In this case, the Code of Civil Procedure applies where the intervention of a notary is not necessary in the execution of any will. Thus, Abada’s will does not require acknowledgment before a notary public.Whether the will must expressly state that it is written in a language or dialect known to the testator.
-
NO. There is no statutory requirement to state in the will itself that the testator knew the language or dialect used in the will. This is a matter that a party may establish by proof aliunde. In this case, Alipio’s testimony sufficiently proves that Abada speaks the Spanish Language.Whether the will has an attestation clause.
- YES.
Whether the attestation clause states the number of pages on which the will was written.
- YES. It showed that the pages are numbered correlatively with the phrase containing “UNO y DOS” meaning “ONE”
and “TWO”.
Whether the attestation clause states that the testator signed the will in its every page in the presence of 3 witnesses.
- The English translation of the attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses.
- However, the SC held that Caponong-Noble was correct is saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agreed with the CA in the application of the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that 3 witnesses signed it.
Whether the attestation clause states that the witnesses witnessed and signed the will and all its pages in the presence of the testator and each other.
- YES. The last part of the attestation clause shows that the attesting witnesses witnessed the signing of the will of the testator, and that each signed the will in the presence of one another and of the testator.
-
The question on the number of witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde.- Precision of language in drafting an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the state be made. It is sufficient if from the language employed it can reasonable deduced that the attestation clause fulfills what the law expects of it.
ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself, It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
Simplicity of the holographic will is its obvious advantage, along with other benefits such as
1. Secrecy
2. Inexpensiveness 3. Brevity
But that very simplicity brings about disadvantages – 1. Danger of forgery
2. Greater difficulty of determining testamentary capacity
3. Increased risk of duress
REQUIREMENTS OF A HOLOGRAPHIC WILL 1. COMPLETELY HANDWRITTEN BY THE TESTATOR
• If testator executes only part of the will in his handwriting and other parts are not so written, the ENTIRE will is void because the article would be violated.
2. DATED BY HIM
• Date – Specification or mention, in a written instrument, of the time [day, month and year] it was made [executed]. – Black’s Law Dictionary
• As a general rule, the date in a holographic will should include the day, month, and year of its execution. However, when there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date FEB./61 is a valid compliance, probate of the holographic will should be allowed under the principle of substantial compliance.
• A complete date is required to provide against such contingencies as –
a) Two competing wills executed on the same day, or
b) Of a testator becoming insane in the day on which a will was executed.
• 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.
3. SIGNED BY TESTATOR
• Must signature be at the will’s end [at least the logical end]? YES, article 812 seems to imply this.
•
May the testator sign by means of a thumbprint? NO, article says will must be“entirely handwritten, dated and signed by the hand of the testator himself.”
CASES
Roxas v. De Jesus
- After the death of the de Jesus spouses, Simeon Roxas (brother of the deceased Bibliana Roxas de Jesus) filed a special proceeding to settle the intestate estate of the de Jesus spouses.
- Later, Simeon delivered to the court a document purporting to be the holographic will of Bibliana. He stated that after being appointed as administrator, he found a notebook of Bibliana which contained the letter-will addressed to her children written and signed by Bibliana.
- The will was dated “FEB./61” and this was confirmed by the testimonies of Simeon as and the 2 children of Bibliana.
- Henson, another compulsory heir, opposed the probate of the holographic will contending that it was not dated as required by Art. 810.
- She contends that the law requires that the will should contain the day, month, and year of its execution and this should be complied with.
WON the holographic will dated as “FEB./61” was properly dated.
- YES. If the testator attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the
- YES. If the testator attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the