notes cases succession art. 805-806

8/11/2019 Notes Cases Succession Art. 805-806

1/17

1

Art. 805: Azuela v. CA

Will consisted of 2 pages 3 witnesses signed of left hand margin of both pages of the will, BUT not at the bottom of the

attestation clause Probate petition only adverted to 2 heirs (petitioner and Irene Igsolo, who resided abroad) Opposed by Geralda Castillo as atty-in-fact of the 12 legitimate heirs

o Not attested in accordance with law: decedents signature did not appear on the second page of will will was not properly acknowledged RTC admitted probate CA reversed: attestation clause failed to state the number of pages used in the will

1. As to statement of number of pages :Petitioner: Art. 805 merely directory, not mandatory. Susceptible to substantial compliance rule

Court: No, it is mandatory. . If the total number of sheets is stated in the attestation clause the falsification ofthe document will involve the inserting of new pages and the forging of the signatures of the testator and

witnesses in the margin, a matter attended with much greater difficulty (BASIS: to prevent tampering)Petitioner: cites Singson v. Florentino and Taboada v. Hon. Rosal , wherein the Court allowed probate to the willsconcerned therein despite the fact that the attestation clause did not state the number of pages of the will.

Singson : relax the application of rules (technicalities) since the body of the will contains a statement that it iscomposed of eight pages

Taboada : the acknowledgment itself states that "this Last Will and Testament consists of two pages including thispage"

2. Court further held: Not validly attested to by the instrumental witnesses.

a. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do notappear at the bottom of the attestation clause.An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signedthe left-hand margin of the page containing the unsigned attestation clause, such signatures cannotdemonstrate these witnesses undertakings in the clause, since the signature s that do appear on the pagewere directed towards a wholly different avowal.

Left hand signature: witnesses are aware that the page they are signing forms part of the will Attestation: witnesses are referring to the statements contained in the attestation clause itself

b. Not acknowledgedo The notary public who notarized the subject will wrote, Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10

(sic), 1981 dito sa Lungsod ng Maynila.o By no manner of contemplation can these words be construed as an acknowledgment. An acknowledgment isthe act of one who has executed a deed in going before some competent officer or court and declaringit to be his act or deed.

o A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatallydefective, even if it is subscribed and sworn to before a notary public.

o The express requirement of Art. 806 is that the will be acknowledged, and not merely subscribed and swornto.

o Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It


2/17

2

also provides a further degree of assurance that the testator is of certain mindset in making the testamentarydispositions to those persons he/she had designated in the will.


3/17

3

Art. 805: Lee v. Tambago

Charged Atty. Tambago of violation of the Notarial Law and ethics of the legal profession for notarizing aspurious last will and testament

o Father never executed will (bequeath property to wife and half siblings of complainant)o Sig of testator not same as sig as donor in deed of donationo Signatures of 2 witness were forgedo Residence cert in acknowledgement of will -> expiredo Notation of the residence certs of witnesses were absento No copy of such purported will was on file with NCCA

Court referred case to IBP; IBP respondent guilty

Court: will is void

o Follow formalities to close door on BF and fraud, avoid substitution of wills and testaments andguarantee truth and authenticity

o Requirement: subscribed at the end thereof by the testator himself.

attested and subscribed by three or more credible witnesses in the presence of the testatorand of one another.

o The will in question was attested by only two witnesses, on this circumstance alone, the will must beconsidered void .

o Also, must be acknowledged. It involves an extra step undertaken whereby the signatory actually declares to the notary

public that the same is his or her own free act and deed. The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators

wishes long after his demise and (2) to assure that his estate is administered in the mannerthat he intends it to be done.

o This requirement was neither strictly nor substantially complied with. For one, there was theconspicuous absence of a notation of the residence certificates of the notarial witnesses in theacknowledgment. Similarly, the notation of the testators old residence certificate in the sameacknowledgment was a clear breach of the law. (Residence cert: to establish true and correct identityof person) will viewed as delicate

o However, respondents failure, inadvertent or not, to file in the archives division a copy of thenotarized will was not a cause for disciplinary action. Penalty: suspension of 1 year, disqualified aNP


4/17

4

Art. 806: Payad v. Tolentino

Leoncia Tolentino executed a will. The trial court denied the probate: attestation clause was not in conformity with the requirements of

law in that not stated therein that the testatrix caused Atty. Almario to write her name at herexpress direction.

Payad: attestation clause does not state that Leoncia requested Atty. Almario to write her name The evidence on record established that Leoncia, assisted by Atty. Almaria, placed her thumbmark

on each and every page of the will and that Atty. Almaria merely wrote Leoncias name to indicatewhere she placed the thumbmark. Atty. Almaria did not sign for the testatrix.

[Authors no te: just based on the last paragraph of the will, it seems that there was a request to have Atty.Almaria write Leoncias name and Leoncia signed it with her thumbmark .]

In attesting to the truth of the contents of this will, I signed this will with my thumb mark because Icannot affix my signature because of my physical condition. I requested Attorney Almario to place my nameon the will where I have to place my thumb mark.

She signed for placing her thumb mark on each and every page thereof. "A statute requiring a will to be'signed' is satisfied if the signature is made by the testator's mark." It is clear, therefore, that it was notnecessary that the attestation clause in question should state that the testatrix requested Attorney Almarioto sign her name inasmuch as the testratrix signed the will in question in accordance with law.


5/17

5

Art. 806: Matias v. Salud

Doc: 3 pages Lower half of 2nd page: signature Gabina Raquel (testator) admitted as to authenticity with

thumbmark 3rd page, end of attestation clause: signatures appearing on the left margin Upper page of each page: violent ink smudge (thumbmark) with words Gabina Raquel and underneath

said name by Lourdes Samonte. The testamentary capacity of the deceased, her mastery of the Spanish language (the language in which

the document is drawn) and that she could sign her name are undisputed. How the will was made: the deceased instructed Atty. Agbunag to draft her will brought to her sala with

witnesses will was read by Atty. Agbunag Gabina thumbmarked foot of document and left margin ofeach page Atty. Agbunag insisted she sign but only able to do so on the 2 nd page of doc because shedropped pen in pain because of her disease Atty. Agbunag instructed Lourdes to write Gabina Raquelby Lourdes Samonte next to each thumbmark

Niece opposed probate: that the attestation clause did not state that the testatrix and witnesses signed eachand every page of the will; and while the left margins of each page exhibit the words Gabina Raquel byLourdes Samonte, the attestation does not express that Lourdes was expressly directed to sign for thetestatrix

ISSUE: WON the attestation clause should state that the testator causes some other person to write hisname, despite having placed her thumbmark on the pages of the will? NO, a thumbark is considered asignature.

Court: Thumbmark by testator satisfies the legal requisite that the will should be signed by him/her

Opposition: thumbmark does not show distinct identifying ridge line attestation clause is defectivebecause it fails to state that Lourdes Samonte signed for the testator (used Garcia v Lacuesta: cross assignature)

Court: the court differentiated that case to this in saying that the reason for Gabinas inability to sign wassufficiently explained, while the previous case did not show why the testator signed merely with an X which

was not his normal signature. Court held that as held in previous cases, the legal requisite that the will should be signed by the

testator is satisfied by a thumbprint or other mark affixed by him 1 and that where such mark isaffixed by the decedent, it is unnecessary to state in the attestation clause that another person wrotethe testators name at his request 2.

1 De Gala v. Ona, Dolor v. Diancin, Neyra v. Neyra, Lopez v. Liboro,2 Payad v. Tolentino


6/17

6

Art. 806: Garcia v. Lacuesta

Will of Antero Mercado written in Ilocano Appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed

below by A ruego del testador and the name of Florentino Javier.Antero Mercado is alleged to have writtena cross immediately after his name.

Court: attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testators name under 618 of Code of Civil Procedure.

Argument however: no need for such recital because the cross written by the testator after his name issufficient signature and the sig of Atty. Florentino Javier is a surplusage. Pets theor y: cross is as much a sigas a thumbmark

Court: NOT PERSUADED to liken the mere sign of a cross to a thumbmark. The cross cannot and doesnot have the trustworthiness of a thumbmark.

Thus, unnecessary to determine WON there is a sufficient recital in the attestation clause as to the signingof the will by the testator in the presence of the witnesses, and by the latter in the presence of the testatorand of each other

Sir: cross not = to thumbmark UNLESS it is the testators usual manner of sig or one of his usual styles ofsigning

Attestation clause: We, the undersigned, by these presents to declare that the foregoing testament of AnteroMercado was signed by himself and also by us below his name and of this attestation clause and that of theleft margin of the three pages thereof. Page three the continuation of this attestation clause; this will is

written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding

number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.


7/17

7

Art. 806: Barut v. Cabacungan

Pedro Barut applied for the probate of the last will and testament of decedent Maria Salomon. He receivedlarge part of estate

After disposing of her property, the testatrix revoked all former wills made by her. stated in said will that being unable to read or write, read to her by Ciriaco Concepcion and Timotea

Inoselda 4 witnesses, including Agayan that she had instructed Severo Agayan to sign her name to it as testratrix. opposed by relatives of decedent. PROBATE COURT: INVALID. handwriting of the person who it is alleged signed the name of the

testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnessesto the w

ill than that of the person whose handwriting it was alleged to be. [In short, as inferred by SC, probatecourt held the will invalid because the agent (Severo) who signed for the testator (Maria) did not signhis own name]

WON sig of agent is essential to validity of will? NO, the essential thing, for validity of a will, is thatthe agent write the testators name.

The IMPORTANT THING is that it clearly appears that the 1) name of the testatrix was signed 2) at herexpress direction 3) in the presence of three witnesses and that 4) they attested and subscribed it in herpresence and in the presence of each other.

o May be wise as a practical matter that the one who signs the testator's name signs also his own;but that it is not essential to the validity of the will.

The cases cited (Ex parte Santiago, Ex parteArcenas, and Guison vs. Concepcion) which allegedly are inopposition of above-mentioned doctrine are not applicable in this case. Those cases refer to a situationwhere the Court held as invalid a will where the agent wrote his OWN name such that the signature ofthe testator is not in the will.

o Testators name never appeared attached as one who executed the will


8/17

8

Art. 806: Nera v. Rimando

when doubts arose as to the location of one of the subscribing witnesses, Javellana, during theexecution of said will.

whether Javellana was present in the small room where it was executed at the time when the testatorand the other subscribing witnesses attached their signatures; or, on the other hand, whether at thattime, he was outside, some eight or ten feet away, in a large room connecting with the smaller roomby a doorway, across which was hung a curtain which made it impossible for one in the outside roomto see the testator and the other subscribing witnesses in the act of attaching their signatures to theinstrument.

TC: not vital. the doctrine laid down in the case of Jaboneta vs. Gustilo, the alleged fact that one of thesubscribing witnesses was in the outer room when the testator and the other describing witnessessigned the instrument in the inner room, had it been proven, would not be sufficient in itself toinvalidate the execution of the will.

WON such fact is material (YES) WON Javellana was inside the room (YES)

Court: Had Javellana been proven to have been in the outer room at the time when the testator andthe other subscribing witnesses attached their signatures to the instrument in the inner room, itwould have been cause to invalidate the will . This is because the attaching of those signatures underthe circumstances was not done in his presence

o Javellanas line of vision to the testator and the other subscribing witnesses w ould necessarilyhave been impeded by the curtain separating the inner from the outer one at the moment ofinscription of each signature.

Jaboneta vs. Gustilo: The true test of presence of the testator and the witnesses in the execution of a willis 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 . While this does not mean that proofneed be shown that the parties eyes were actually cast upon the paper at the moment of itssubscription by each of them, it is still necessary that at that moment, existing conditions and theirposition with relation to each other were such that by merely choosing to cast their eyes in theproper direction they could have seen each other sign .

the testator and the subscribing witnesses may not be held to have executed the instrument in thepresence of each other if it appears that they would not have been able to see each other sign at thatmoment, without changing their relative positions or existing conditions.

The evidence discloses that at the moment when Javellana signed the document, he was actually andphysically present and in such position with relation to Jaboneta that he could see everything that took

place by merely casting his eyes in the proper direction and without any physical obstruction toprevent his doing so.


9/17

9

Art. 806: Icasiano v. Icasiano

Petitioner: Josefa died in Manila on Sept. 12, 1958 and that on June 2, 1956, she executed a last will andtestament in duplicate published before and attested by three witnesses: Atty. Justo P. Torres Jr., Atty.

Jose V. Natividad and Mr. Vinicio B. Diy. the original will was five pages long and signed at the end and in every page EXCEPT on page 3,

which was missing the signature of Atty. Natividad. The duplicate however had signatures of thetestator and the three witnesses on all pages.

WON the failure of one witness to sign one page of the will was enough justification for denial ofprobate? NO

The inadvertent failure of one witness to affix his signature to one page of a testament, due to thesimultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial ofprobate.

Impossibility of substitution of this page is assured not only the fact that the testatrix and two otherwitnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of thenotary public before whom the testament was ratified by testatrix and all three witnesses.

The law should not be so strictly and literally interpreted as to penalize the testatrix on account of theinadvertence of a single witness over whose conduct she had no control, where the purpose of the lawto guarantee the identity of the testament and its component pages is sufficiently attained, nointentional or deliberate deviation existed, and the evidence on record attests to the full observance ofthe statutory requisites.

Pure oversight is shown by his own testimony as well as by the duplicate copy of the will which bears acomplete set of signatures in every page

The text of the attestation clause and the acknowledgement before the Notary Public likewise evidencethat no one was aware of the defect at the time.

Basis: guard against fraud and BF but without undue or unnecessary curtailment of the testamentary

privilege CONTENTION: original of the will is in existence and available, duplicate not entitled to probate COURT: appellants run into a dilemma

o If orig is defective and invalid: in law there is no other will but the duly signed carbon duplicateand the same is probatable

o If orig is valid and can be probated, then the ojjection to the signed uplicate need not beconsidered

o At any rate, said duplicate serves to prove that the omission of one signature in the third pageof the original testament was inadvertent and not intentional

Art. 806: Cagro v. Cagro

One party: Attestation clause is not signed by the attesting witnesses Other party: signatures of the 3 witness to the will do not appear at the bottom of the attestation clause,

although the page containing the same is signed by the witnesses on the left hand margin


10/17

10

Court: the attestation clause is a memorandum of the facts attending the execution of the will required bylaw to be made by the attesting witnesses, and it must necessarily bear their sgnatures. An unsignedattestation clause cannot be considered as an act of the witnesses, since the omission of their signatures atthe bottom thereof negatives their participation

One Party: sig on left hand conform substantially to the law Court: untenable, because said signatures are in compliance with the legal mandate that the will be signed on

the left hand margin of all its pages. If an attestation not signed by the 3 witnesses at the bottom thereof, beadmitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and I theabsence of the testator and any of the witnesses

Dissent: J Bautista Angelo substantially complied with the formalities of the law and should be admitted toprobate

The witnesses testified not only that the will was signed by the testator in their presence and in the presenceof each other but also that when they did so, the attestation clause was already written thereon. Theirtestimony has not been contradicted.

This objection is too technical to be entertained.

The fear entertained by the majority that it may have been only added on a subsequent occasion and not atthe signing of the will has been obviated by the uncontradicted testimony of said witnesses to the effect thatsuch attestation clause was already written in the will when the same was signed.


11/17

11

Art. 806: Javellana v. Ledesma

Instrumental witnesses asserted that after the codicil had been signed by the testatrix and the witnesses atSan Pablo Hospital, the same was signed and sealed y the NP Gimotea on the same occasion

Gimotea affirmed that he did not do so but brought the codicil to his office and signed and sealed it there.

Court: WON the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses does not affect the validity of the codicil

NCC does not require that the signing of the testator, witnesses and notary should be accomplished in onesingle act.

The subsequent signing and sealing by the notary of his certification that the testament was dulyacknowledged by the participants therein is no part of the acknowledgement itself nor of the testamentaryact. Hence, their separate execution out of the presence of the testatrix and her witnesses can not be said to

violate the rule that testaments should be completed without interruption. Art. 806 of CC does not contain words requiring that the testator and the witnesses should acknowledge the

testament on the same day or occasion that it was executed.


12/17

12

Art. 806: Cruz v. Villasor

FACTS: There were 3 instrumental witnesses to the last will of Valente Cruz, namely: Deogracias Jamaoas, Jr, Dr. Francisco Penares and Atty. Angel Teves (also the notary public before whom the will wasacknowledged)

Petitioner (heirs of Cruz): In effect, there were only 2 witnesses who appeared before the notary public, thus didnot meet the requirement under Arts. 805 and 806

Respondent (executor of will): Substantial compliance (of having at least 3 witnesses even if the NP acted as oneof them) which is permitted citing American Jurisprudence 3

SSUE: WON the notary public may be counted as one of the attesting witnesses. NO.

Court: NOT EXECUTED IN ACCORDANCE WITH LAW.

The notary public before whom the will was acknowledged cannot be considered as the 3 rd instrumentalwitness since he cannot acknowledge before himself. This cannot be done because he cannot split his personalitynto 2 so that 1 will appear before the other to acknowledge his participation in the making of the will. Sheerbsurdity.

Statutory construction Language

To acknowledge to avow, 4 to own as genuine, to assent, to admit 5 Before in front or preceding in space or ahead of 6

ntent of the law

The function of notary public is, among others, to guard against any illegal or immoral arrangements. Thatunction would be defeated if the notary public were 1 of the attesting or instrumental witnesses for he would benterested in sustaining the validity of his own act.

Amjur is N/A here

Admittedly , there are American precedents supporting the respondents view. But these authorities do noterve the purpose of the law in this jurisdiction, because notaries public and witnesses referred to in the Americanases merely acted as instrumental, subscribing or attesting witnesses, and NOT as acknowledging witnesses.

Here, the notary public acted not only as attesting witness but also as acknowledging witness, a situation notnvisaged by Art. 806 CC: xx acknowledged before a notary public by the testator and the witnesses. xx

Art. 806: Guerrero v. Bihis

3 It is said that there are practical reasons for upholding a will as against the purely technical reason that 1 of the witnesses required by lawsigned as certifying to an acknowledgement of the testators signature under oath rather than as attesting the execution of t heinstrument. 4 Javellana v. Ledesma5 Webster Dictionary6 Id


13/17

13

GUERRERO v. BIHISG.R. No. 174144 April 17, 2007 Corona

petitioners Bella A. Guerrerorespondents Resurreccion A. Bihis

summary Bella filed for probate, Recy opposed. Apparently, testator & witnesses acknowledgedthe will before the notary public of Caloocan City inside her residence in Quezon City.Held: Notary lacked authority to take the acknowledgement outside his place ofcommission. Hence, the will is void.


14/17

14

facts of the case

Felisa Tamio de Buenaventura, the mother of the 2 parties, died. Bella (older sister) filed apetition for the probate of the decedents will, alleging that she was named executrix in the said

will, and that she was legally qualified to act as such. Resurreccion (Recy for brevity, not realnickname), opposed the petition on the ff grounds:

(1) The will was not executed and attested as required by law;

(2) Its attestation clause & acknowledgement did not comply with the reqs of the law;

(3) The siggie of decedent was procured by fraud and Bella & her children procured the willthrough undue and improper pressure & influence.

The RTC appointed Bella as special administratix. In a resolution, the RTC denied theprobate of the will , ruling that Art. 806 CC was not complied with because the will was

acknowledged by the testatrix & the witnesses at the testatrixs residence at 40 Kanlaon St.,QC before Atty. Macario O. Directo, who was a commissioned notary public for and inCaloocan City .

issue

WoN the will acknowledged by the testatrix & the instrumental witnesses before a notarypublic acting outside the place of his commission satisfy the req under Art. 806. NO.

ratio

Art. 806 states one of the formalities required by law in connection with the execution of anotarial will. This req is one of the indispensable requisites for the validity of the will. If this isnot complied with, the will is void and cannot be accepted for probate.

Acknowledgement act of one who has executed a deed in going before some competentofficer and declaring it to be his act or deed.

The acknowledgement of a notarial will coerces the testator & the instrumental witnesses to

declare before an officer of the law (the notary), that they executed and subscribed to the will astheir own free act or deed. Such declaration is under oath and under pain of perjury , whichcould lead to the criminal prosecution of persons who participate in the execution of spuriouswills, or those executed without the free consent of the testator. It also provides a furtherdegree of assurance that the testator is of a certain mindset in making the testamentarydispositions to the persons instituted as heirs or designated as devisees/legatees in the will.


15/17

15

Acknowledgement can only be made before a competent officer a lawyer dulycommissioned as a notary public.

In this case, Atty. Directo was not a commissioned notary public for QC . Thus, he lacked

the authority to take the acknowledgement of the testatrix & the instrumental witnesses.Felisas will was, i n effect, not acknowledged as required by law .

Notary Publics Commission grant of authority in his favor to perform notarial acts, issued within and for a particularterritorial jurisdiction, and the notarys authority is co -extensive with it. Outside the place of his commission, he is bereft of powerto perform any notarial act; he is not a notary public.

SECTION 237 7. Form of commission for notary public. The appointment of a notary public shall be in writing, signed by the judge, and substantially in the following form:

GOVERNMENT OF THE

REPUBLIC OF THE PHILIPPINES

PROVINCE OF ___________

This is to certify that ____________, of the municipality of ________ in said province, was on the ___ day of __________, annoDomini nineteen hundred and _______, appointed by me a notary public, within and for the said province , for the term ending onthe first day of January, anno Domini nineteen hundred and _____.

SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public in a province shall be co-extensive with theprovince. The jurisdiction of a notary public in the City of Manila shall be coextensive with said city. No notary shall possessauthority to do any notarial act beyond the limits of his jurisdiction .

7 Notarial Law


16/17

16

Art. 808: Garcia v. Vasquez


17/17

17

Art. 808: Alvarado v. Gaviola, Jr.

notes cases succession art. 805-806

Documents