No. Because of the express requirement under Article 805, which requires the subscription at the end. End refers to the logical end of the will, not the will’s physical end. Logical end is the portion after the last testamentary provision. X died with a will. When the will was presented for probate, it was readily apparent that it was signed in
each and every page and in the left margin, but not the end. Should the will be allowed?
No. The law requires that the will be subscribed at the end of the will. Is it a fatal defect?
Yes.
Why require that the signature must be at the end of the will?
The purpose of the requirement is not only to show that the testamentary purpose therein expressed is completed, but also to prevent any opportunity for fraud or interpolations between the written matter and the signature.
Another essential requirement for the validity if an ordinary will is the attestation clause. Absence of this clause will render the will a nullity. Therefore it is mandatory.
What is an attestation clause?
It is a memorandum or record of facts, wherein, the witness certify that the instrument has been executed before them and that it has been executed in accordance with the formalities prescribed by law.
Is the attestation clause part of the will?
No. It is separate and distinct from the testamentary dispositions, which were executed by the testator. It is a separate memorandum executed by the witnesses stating that they witnessed the execution of the will and that it is in accordance with the formalities of the law. But it can be incorporated in the will. What is the purpose of the attestation?
To render available proof during the probate of the will, not only to the authenticity of the will, but also its due execution.
Where should the attestation clause be place?
The attestation clause may be written immediately after the signature of the testator at the end of the will.
What if it is place at the beginning of the will?
The will would still be valid. The present form is only for convenience. The law does not require the attestation to be contained in a single clause. Thus, where a will did not contain a separate and independent attestation clause, but the concluding paragraph of the body of the will was written in the tenor of an attestation, stating the facts required by law to be set forth in an attestation clause, and the ultimate paragraph of the will stated the number of pages use, it was stated that there was a sufficient attestation clause.
If there is a separate attestation clause, it need not be written on the very same page where the dispositions of the will ends, even if, there should be sufficient space in which to begin the said clause.
Is it necessary that the attestation clause be after the testamentary disposition?
No. The current form is only for convenience.
If the attestation clause failed to state the (a) number of pages; (b) the fact that it was signed by the testator in the presence of the witnesses; or (c) the fact that it was signed by the testator. Is the will valid?
(a) General rule, the will is not valid. Exception: if the number of pages is stated in the will itself or acknowledgment (Taboado vs Rosal). But this exception must be received with caution because in the case of Taboado, there were only two (2)
pages in the will, including the acknowledgment. This rule applies also if the pages are not correlatively numbered but only in cases when the will does not exceed two (2) pages.
(b) The will is void without any exceptions even if the will contains the signature of the witnesses. The omission cannot be determined by the examination of the will itself. Extrinsic evidence is inadmissible.
(c) The will is void. Exception: the doctrine of liberal interpretation shall be applied, if there are indeed signature present.
Suppose the attestation clause does not state the number of pages used, is the will valid?
General rule: No
Exception: Applying the doctrine of liberal interpretation construction, the failure to state in the attestation clause of the number of pages used, is not fatal. Hence, the will may still be valid, provided, that it can be established or deduced from an examination of the will itself, that all the statutory requirements have been complied with.
The doctrine of liberal interpretation cannot be applied if the omission consists of the failure to state that the witnesses and the testator signed in the presence of one another. Reason: this omission cannot be remedied by an examination of the will itself.
Suppose that in a four (4) – paged will, the attestation clause did not state all the number of pages used. But the last paragraph states that the will is comprised of four (4) pages including the attestation clause, should the will be allowed?
Yes. Following the doctrine of liberal interpretation, there is substantial compliance of the requirements. That is, the failure of the instrumental witnesses to state one or some of the essential facts which, according to the law, must be stated in the attestation clause would not be fatal, provided, it can be established or deduced from the examination of the will itself that all of the statutory requirements have been complied with. Take note, that in this case, the body of the will states that it is composed of four (4) pages.
Taboada vs Rosal, 118 SCRA 195
FACTS: The attestation clause of a notarial will failed to state the number of pages thereof. However, it is discernible from the entire will that it really consists of two (2) pages only: the first, containing the provisions; and the second, both the attestation clause and the acknowledgment. Besides, the acknowledgement itself states that “this Last Will and Testament consists of two (2) pages including this page”.
HELD: Under the circumstances, the will should be allowed probate. After all, we should approach the matter liberally.
Presence of witnesses. — Although it is not expressly stated in the first paragraph of Art. 805, it is also required that the subscription of an ordinary will by the testator should take place in the presence of the instrumental witnesses. This statutory requirement which is also mandatory in character is prescribed by the third paragraph of the article which provides that the attestation clause shall state, among others, “the fact that the testator signed the will x x x or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses.”
Attestation and subscription by witnesses. — Under Art. 805 of the Civil Code, it is also an indispensable requirement that an ordinary will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. This fact, according to the same article, must be stated, among others, in the attestation clause. An instrumental witness may be defined as one who takes part in the execution of an instrument or writing.27 Attestation of the will consists in the act of the witnesses of witnessing the execution of the will in order to see and take note mentally that such will has been executed in accordance with the requirements prescribed by law. Strictly speaking, it is the act of the witnesses not that of the testator, although it necessarily involves the acts of the testator in executing the will.28 Its purpose is to render available proof during the probate proceedings that the will has been executed in accordance with the requirements prescribed by law and that the instrument offered for probate is authentic.29 Subscription, on the other hand, as it is used in this part of the Code, consists in the manual act of the instrumental witnesses in affixing their signatures to the instrument. Its only purpose is identification.
It is, therefore, evident that attestation and subscription are different things and required for obviously different ends. They may be distinguished from each other in the following ways:
(1) Attestation is an act of the senses, while subscription is an act of the hand. (2) The first is a mental act, while the second is a mechanical act.
(3) The purpose of the first is to render available proof during the probate of the will, not only of the authenticity of the will, but also of its due execution, while the only purpose of the second is identification.
Meaning of presence. — The law also requires that the will must be attested and subscribed by the instrumental witnesses “in the presence of the testator and of one another.’’ The purpose of such a requirement is evidently to prevent the substitution of a surreptitious will.
Under this rule, it is essential that each one of the three instrumental witnesses must actually sign not only in the presence of the testator, but also in the presence of the other witnesses. In other words, the execution of a will is supposed to be a single act or transaction and cannot be legally effective if the various participants signed on various days or occasions and in various combinations of those present.Hence, it is not sufficient if the witnesses merely acknowledged their previously affixed signatures in the presence of the testator or in the presence of each other. It is not, however, essential that the testator must have actually seen the signing of the will by each one of the instrumental witnesses.
Test of presence. — What test, therefore, shall we apply in order to be able to determine whether or not the witnesses signed the will “in the presence of the testator and of one another?” This question has been answered several times by our highest court — notably in the cases of Jaboneta vs. Gustilo, 5 Phil. 541.
Jaboneta vs. Gustilo 5 Phil. 541
In these proceedings, the will of Mario Jaboneta was denied probate by the lower court on the ground that Javellana, one of the witnesses, did not attach his signature thereto in the presence of Jena, another of the witnesses. It is admitted that after the testator and the witnesses Jalbuena and Jena had signed the will and all of the pages thereof, the latter stood up and left the room just as the third witness Javellana was signing the will and all of the pages thereof. The question now is — did
Javellana sign his name in the presence of Jena as required by law? According to the Supreme Court, speaking through Justice Carson:
“We cannot agree with so much of the above finding of the facts as holds that the signature of Javellana was not signed in the presence of Jena. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken together with the testimony of the remaining witnesses, which shows that Javellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back was turned, while a portion of the name of the witness was being written is of no importance. He, with the other witnesses and the testator, had assembled for the purpose of executing the testament, and were together in the same room for that purpose and at the moment when the witness, Javellana signed the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so, therefore, we are of the opinion that the document was in fact signed before he finally left the room.
“This conclusion is in accordance with American authorities which hold 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 law requires three (3) witnesses in the execution of the will. Is the will valid if there are only two (2) witnesses?
No. The will is not valid if there are only two (2) witnesses. The law expressly requires three (3) witnesses.
What about if there are more than three (3) witnesses in the execution of the will? Is the will valid?
Yes. Article 805 provides, “ xxx and attested and subscribed by three (3) or more credible witnesses xxx”. The excess shall only be considered as a mere surplus but it will not affect the validity of the will.
Note:
1. Lack of signatures in the left margin is fatal unless, there is a duplicate copy of the original. (Icasiano vs Icasiano)
2. The ruling in Icasiano vs Icasiano should not be applied in all cases, when the signature of the witnesses do not appear on the margin of the will. It can be applied only if there is a duplicate original copy of the will. In this case, there was no issue on the validity of the will due to the presence of the copy.
3. The requirement regarding the location (left margin) of the marginal signatures is not mandatory in character, provided that, such signatures are present in every page of the will (except the last page). So, the marginal signatures may be found on the right margin and the will is still valid.
What is the effect if the will is not acknowledged?
It will not enjoy the presumption of regularity. In short it is void. A will is not a public instrument that is why the law does not require a notary public to keep a copy or to transmit a copy to the clerk of court.
As a general rule, witnesses in the execution of a will should also acknowledge the will before a notary public. This is because witnesses are also principal participants in the execution of the will. This is different from other ordinary contracts, which requires only the contracting parties. Attesting witnesses are different from acknowledging witnesses. Failure of one witness to acknowledge the will before the notary public renders the will void.
May the notary public be one of the subscribing witnesses?
No. To allow the notary public to act as one (1) of the three (3) attesting witnesses would have the effect of having only two (2) attesting witnesses to the will.
In the preceding problem, are there exceptions? What are they? Yes.
1. If there are more than three (3) witnesses. 2. If the will is not acknowledged before him.
Is it necessary that acknowledgment of the will be made by the testator and all of the witnesses at the same time?
No. The law does not require simultaneous acknowledgment, neither does the law require that the acknowledgment be made by the testator and the witnesses in the presence of one another, provided that all of the parties acknowledge in from of the notary public, and provided further, that all the parties has the testamentary capacity at the time of the acknowledgment.
May the testator and the witnesses acknowledge the will in separate occasions?
Yes. The law does not require simultaneous acknowledgment neither does the law require that the acknowledgment be made by the testator and the witnesses in the presence of one another, provided that all of the parties acknowledge in front of the notary public and provided further, that all the parties has the testamentary capacity at the time of acknowledgment.
The two (2) immediately preceding problems are the same. The questions were rephrased to as elicit either a negative or positive answer. But the reasons are the same.
Suppose the testator died before the will may be acknowledged. Can the will be allowed?
No. The will lacks one of the formalities required by law – testamentary capacity of the testator, since, he is already dead.