NOTARIAL WILL

Manner of signing

In re: probate of the will of Gabina Raquel

Aurea Matias v Basilia Salud (1958, Reyes, JBL)

- Deceased: Raquel, 27 Jan 1950

o Already 90, disease: herpes zoster; can sign name
o No asc, desc
o Executed testamentary document
 In Spanish
 Witnessed by Gonzales, Samala, Samonte
 Signed at the margins, left
 Smudge at upper left margin accompanied by “Gabina Raquel”, “by Lourdes Samonte”
 At the end of attestation clause: similar signatures as above
 160thou to niece Aurea Matias
 In recompense for services for more than 30 yrs
 Drafted by atty Agbunag; received witnesses in ante sala, seated with her around table and atty
(who read will)
 Thumbmarked but tried to sign but could not proceed—right shoulder pain
 Agbunag instructed Samonte to write “…by…”
- CFI: denied probate of Raquel
o Attestation clause did not state Gabina et al sgd each and every page and Samonte expressly directed to
sign for Gabina
o Gonzalez non-appearance unexplained; not done in presence of each other; fraud, bad faith
o || expert testimony: fingerprints impressed over name contrary to witness claim; “Gabina Raquel by
Samonte” falsified and written over previous tracing; Samonte did not write “…by…”; pen used to sign
Gabina Raquel had separated nibs; other signatures with round point pen
- SC:
o Expert conclusions not credible
 Fingerprint marks had time to dry up before writing name
 Lighter shade of underlying characters indicates overwriting made to correct ink failure
 Departure from usual order of signature OK
o Bequest to Matias OK
 Matias appointed without bond = affection of Raquel for Matias
o Absence of Gonazelz OK
 Not hidden; suffering from hypertension and might collapse and die as consequence of little
excitement
 TC would not like to assume responsibility for whatever might happen to this woman
o Fingerprint OK
 || jurisprudence: thumbprint or other mark affixed by testator OK
 Unnecessary to state in attestation clause that another wrote name at his request
 Garcia v Lacuesta not applicable
 Cross mark not shown to be habitual signature nor any explanation given why he should
use cross when knew how to sign
 Because here, explained that pain made it difficult to sign
o REVERSED. Costs against ees; probate OK
In the matter of will of Antero Mercado, deceased

Rosario Garcia v Juliana Lacuesta, et al (1951, Paras)

- Deceased: Mercado
o Executed will in Ilocano
 sgd by Atty Javier who wrote Mercado’s name: “A reugo del testator”
 Mercado wrote cross immediately after name
- CFI: probate OK
- CA: denied probate
o Attestation clause failed to certify that will sgd on all left margins of three pages and at end by Atty at
express request of Mercado; that after signing, Mercado wrote cross; that three witnesses sgd will in all
pages in presence of each other
- SC:
o No probate
 Attestation clause fatally defective
 Failed to state Mercado cause ATty to write name under express direction || Civ Pro
 Cross not usual signature nor even one of the ways by which he signed
o After mature reflection, court not prepared to liken mere sign of cross to
thumbmark—cross not as trustworthy as thumbmark
o AFFIRMED. Costs against Garcia

Pedro Barut v Faustino Cabacungan, et al, opponents-appellees

- Deceased: Maria Solomon, 7 Nov 1908

o Unable to read and write
o Left last will and testament, 2 Mar 1907
 In Ilocano; translated into Sp
 Disposed her property; revoked all former wills
 Read to her by Concepcion, Inoselda
- LC: probate
o Handwriting of person alleged to sign name of testatrix looked more like handwriting of other witness
o Person signing for testatrix must sign own name
- SC:
o Handwriting dissimilarities immaterial
o Not impt that person who writes name of testator should also sign his own
 Impt: that it should clearly appear that
 the name of the testator was sgd at his express direction,
 in presence of 3 witnesses,
 in presence of testator and of each other
 other cases cited not applicable
 person who signed will for testator wrote own name to will instead of writing testator’s
o therefore, will not valid
o REVERSED. Proceed with probate
Beatriz Nera, et al, piff-ees, v Narcisa Rimando, def-ant (1911, Carson)

- Will executed
o In large room
o Connecting with smaller room by doorway across which hung a curtain
 Subscribing witness in small room
 With testator and other witnesses when they attached
- TC:
o Rimando: [witness did not see signing]
o || Jaboneta v Gustilo: True test of presence of tor and witnesses in execution of will 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
o Admitted probate of will
- SC:
o That witness in outer room when testator and other witnesses signed not sufficient to invalidate
execution of will
 Must note position of parties with relation to other at moment of subscription of each signature
 Must see each other sign if they choose to do so
o AFFIRMED.

In re: testate estate of late Josefa Villacorta

Celsio Icasiano, ee, v Natividad Icasiano, Enrique Icasiano, opp-ant (1964, Reyes, JBL)

- Villacorta died 12 Sep 58

o Executed will 2 Jun 56 and duplicate; attested by three; acknowledged before atty Ong; prepared by Samson; in Tagalog
- Natividad and Enrique wanted to be appointed special administrator of mother Villacorta’s estate
- CFI: probate OK
o Appointed Ph Trust Co as special administrator
o Icasiano: Villacorta left will in duplicate with all legal requirements
 Original: five pages; no signature of Natividad on page three
 Natividad: lifted two instead of one page
 Duplicate: with Natividad signature
o Oppositors: signatures of Villacorta in duplicate not genuine; mistake, undue influence, pressure since
Villacorta decived into adopting wishes of those who will benefit from provisions of will
- SC:
o Will OK
 No adequate evidence of fraud, forgery
 Fact that some heirs more favored does not prove anything
 Diversity of apportionment usual reason for making testament
o Otherwise, decedent might as well die intestate
o Validity of will provisions to be resolved in another case
 Failure to affix signature to one page due to simultaneous lifting of two pages OK
 Not sufficient to justify denial of probate
 Impossibility of substitution of page assured not only by fact that page sgd by testatrix
and witnesses, but also by bearing coincident seal of notary
 Law should not be so strictly and literally interpreted as to penalize testatrix on acct of
inadvertence of single witness over whose conduct she had no control
 o Where purpose of law to guarantee testament and pages sufficiently attained,
no deliberate deviation and evidence attests to ful observance of statutory
requisites, OK
 Failure to sign due to oversight
 Duplicate can be probated
 @.@
 AFFIRMED.

In re: probate of will of Dorotea Pereez

Apolonio Tabaoda v CFI Judge Rosal (1982, Gutierrez)

- Deceased: Dorotea Perez

o Will: in Visayan dialect; two pages
 First: dispositions, sgd at end or bottom by testatrix, left margin by three witnesses
 Second: attestation clause and acknowledgement sgd by witnesses and testatrix
- CFI: denied probate due to want of formality of execution of will
o Aside from testatrix, witnesses must also sign end in presence of each other
o MR not acted upon by Judge Pamatian; replaced by Judge Rosal who denied same due to failure to
comply with order requiring submission of intestate heirs and addresses
- SC:
o Will valid
 No need for witnesses to sign at the end of the will after signature of testator
 || 805, CC
 Will must be subscribed or signed at end by testator or testator’s name written by
another person in his presence, by direction
 Attested and subscribed by three or more credible witnesses in presence of each other
 Attested
o Witnessing testator’s execution of will in order to see and take not mentally that
those things are done which the statue requires and signature exists as fact
 Subscribed
o Signing of witnesses’ names upon same paper for purpose of identification of
such paper as the will executed by testator (Ragsdale v Hill)
 Here, will subscribed in manner fully satisfying the purpose of identification
 Signature of witnesses on margin attested to genuineness of signature
 And due execution of will as embodied in attestation clause
 Law to be liberally construed
 End view: give testator more freedom in expressing his last wishes with sufficient
safeguards and restirctions to prevent fraud, undue and improper pressure and
influence
 Unsubstantial departure from usual forms should be ignored esp where authenticity not
assailed || Gonzales v Gonzales
 || Singson v Florentino: attestation without number of pages but end of will with
number of pages, so OK
 || Icasiano v Icasiano
 Objects of attestation and subscription fully met and satisfied when witnesses signed at the left
margin of the sole page with testamentary dispositions
 + Judge Pamatian: were it not for defect of signatures of witnesses, testimony sufficient to
establish validity of will
o GRANTED. Probate will
Acknowledged before notary public

Art 806. Every will must be acknowledged before a notary public

by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will,
or file another with the office of the Clerk of Court
Substantial compliance rule

Art 809. 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 it is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of art 805
Disabled testators

Art 807. If the testator be

deaf or a deaf-mute,
he must personally read the will,
if able to do so;
otherwise, he shall designate 2 persons to read it and communicate to him,
in some practicable manner,
the contents thereof

Art 808. If the testator is blind,

the will shall be read to him twice;
once by one of the subscribing witnesses,
and again by the notary public before whom the will is acknowledged.
Witnesses

Art 820. Any person of sound mind and of the age of 18 yrs or more,
and not blind, deaf or dumb
and able to read and write
may be a witness to the execution of a will mentioned in 805 of this Code

Art 821. The ff are disqualified from being witnesses to a will

(1) A person not domiciled in the Ph

(2) Those who have been convicted of falsification of a document, perjury or false testimony

Art 822. If the witnesses attesting the execution of a will are competent at the time of attesting,
their becoming subsequently incompetent
shall not prevent the allowance of the will

Art 823. If a person attests the execution of a will

to whom or to whose spouse or parent or child
a devise or legacy is given by such will,
such devise or legacy shall
so far only as concerns such person or spouse or parent or child of such person
or any one claiming under such person or spouse or parent or child
be void,
unless there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a witness
as if such devise or legacy had not been made or given

Art 824. A mere charge on the estate of the testator

for the payment of debts due at the time of the testator’s death
does not prevent his creditors from being competent witnesses to his will
Rizalina Gonzales v CA, Lutgardia Santiago (1979, Guerrero)

- Deceased: Isabel, 85
o Nieces: Lutgardia, Rizalina
 Lutgardia lived with Isabel prior death
o Will: Rizalina as principal beneficiary and executrix
 Written two mos prior to death
 Five pages (5 dahon) with attestation clause and acknowledgment of notary public
 Heading: Pangalan
o Written signatures oof Orobia, Gimpaya, Gimpaya
 Same appearing also on margins of other pages
 Heading: Tirahan: Philamlife, Navotas, Navotas
 Typewritten, in Tagalog
 Burial; legacies; expenses; the rest and yet to be acquired to Lutgarda (pinalaki, inalagaan,
minahal na katulad ng isang tunay na anak)
- CFI, Rizal: Lutgarda: special proceedings for probate of will
o Rizalina opposed. Will not genuine, not executed and attested, no testamentary capacity; undue,
imporper influence and pressure
o Not OK. Not executed, attested || law; document not the will executed, dictated, sgd by decedent
- CA: reversed. Executed in presence of three witnesses || law. Probate OK
- SC:
o Rizalina: no proof that three w were credible (absolute requirement which must be complied with
before alleged last will and testament may be admitted to probate; there must be evidence on record
that witness has good standing, honest, upright, reputed to trustworthy, reliable; if not established,
testimony may not be favorably considered; competent =/= credible); prep of will unexpected and coincidental; Atty
Paraiso not furnished with names and residence of w to enable him to typ data into doc; typewritten lines under headings left blank; incredible
that Isable could have dictated will; Orubia not physically present; no undue importance to pictures as proof as will improperly executed ;
o Witnesses ok
 Witnesses qualified
 || 820, 821
 No requirement that witness testify initially or at any time during trial as to his good
standing, reputation, trustworthiness, reliability, honesty, uprightness in order that his
testimony may be believed and accepted
 “credible” in cc =/= “credible” in Naturalization law (witnesses must prove good
standing in community, reputation for trustworthiness, reliableness, etc
o Probate instrumental witnesses not character witnesses
 Merely attest execution of will or testmanet and affirm formalities
o Cases on naturalization witnesses not applicable
 CA found that witnesses competent and credible || evidence
 No disqualification pointed out
 Lutgardia: “credible” = one who is not disqualified to testify; competent
 Court:
o Competency determined by statute
o Credibility depends on appreciation of testimony and arises from belief and
conclusion of Court that witness is telling the truth
 Rule: in order to be competent, comply with 820 and 821
 For testimony to be credible, not mandatory that evidence be first established on record
that witnesses have good standing in community or honest or upright, etc
o Since presumption is that a person is such unless contrary established
 o No duress, etc. Deceased still capacitated
o Immaterial when lawyer furnished with names and residence of witnesses prior to or on April 15, 61
 + presumption of regularity
o That lines left blank shows beyond cavil that witnesses all present in same occasion
o Orobia physically present
 Calling photographer Benjamin Cesar a minor mistake attributable to lapse of time
o …findings of fact of CA OK
o AFFIRMED. Costs against Rizalina

Agapita Cruz v Judge Villasor, CFI Cebu, Manuel Lugay (1973, Esguerra)

- Deceased: Valente Cruz

o Widow: Agapita
o Will
 Witnesses: Jamaoas, Panares, Teves
 Teves also notary public before whom will acknowledged
- CFI: probate of will
o Agapita: will executed through fraud, deceit, misinterpretation, undue influence; tor not fully informed
of contents and properties
o Probate OK
- SC:
o Agapita: since 1/3 witnesses is notary public, only 2 witnessed will
o Will not executed according to law
 Teves not valid witness
 Notary public before whom will acknowledged not third witness
 Cannot acknowledge before himself his having sgd the will
o “acknowledge” = avow, to own as genuine, to assent, to admit
o “before” = in front or preceding in space ahead of
 If notary = 3rd witness, he would avow, assent, or admit his signing in front of himself
o Cannot be done
o Cannot split personality
o Else, sanctioning a sheer absurdity
 Notary public function: guard against any illegal, immoral arrangements
 American precedents holding notary public = witness not applicable
o Purpose of law in this jurisdiction are not decisive of the issue herein
o Notaries public and witnesses in Am = instrumental, subscribing or attesting
witnesses; NOT acknowledging witnesses
 In Ph: acknowledging witness || 806
 To allow notary = witness => 2 witnesses only