Rules of Severability (Art. 792)
Art. 792. The invalidity of one of several
dispositions contained in a will does not result in
the invalidity of the other dispositions, unless it is
to be presumed that the testator would not have
made such other dispositions if the first invalid
disposition had not been made.
Effect of Invalid Dispositions (Paras)
(a) Even if one disposition or provision is
invalid, it does not necessarily follow that all
the others are also invalid.
(b) The exception occurs when the various
dispositions are indivisible in intent or nature.
22. Balanay, Jr. v Martinez, 64 SCRA 454
Property acquired after making the will
(Art. 793) Distinguished from Art. 781
Art. 793. Property acquired after the making of
a will shall only pass thereby, as if the testator
had possessed it at the time of making the will,
should it expressly appear by the will that such
was his intention.
Ex. 1965- testator made a will, 1965 to 1978
he acquired property, the will shall only pass
those properties which he had at the time of its
execution in 1965, but not those which he had
acquired
subsequent
thereto.
(Jurado)
GR: What is given by the will are only those
properties already possessed and owned by the
testator at the time of the will was made, not
those acquired after (“AFTER ACQUIRED
PROPERTY)
XPNs: where after-acquired properties are
also given to the persons designated in the
will
1. If it expressly appears in the will that
it was the intention to give such
“after-acquired properties”.
2. If the will is republished or modified
by a subsequent will or codicil (in
which case, the properties owned at
the time of such republication or
modification shall be given.
3. If at the time the testator made the
will he erroneously thought that he
owned certain properties the gift of
said properties will not be valid,
unless after making the will, said
properties will belong to him.
4. Legacies of credit or remission are
effective only as regards that part of
the credit or debt existing at the time
of the death of the testator.
Art. 781.
According to Art. 781 in conjunction with
Art. 776, the inheritance of a person
includes: first, all of his property which
are existing at the time of his death;
second, all of his transmissible rights and
obligations which are existing at the
time of his death; and third, all of the
property and rights which may have
accrued to the hereditary estate since
the opening of the succession.
Grant of Full Interest (Arts. 794 and
869)
Art. 794. Every devise or legacy shall
convey all the interest which the
testator could devise or bequeath in the
property disposed of, unless it clearly
appears from the will that he intended
to convey a less interest
Scenario: Jurado)
The testator had executed a will in 1960
instituting his three children, A, B and C,
Entitled A 1/2, B to 1/4, and C the remainder
and he died only in 1978
acquired properties between 1960 and 1978.
Result: Properties acquired between 1960-1978
shall be divided the same way as stated in the
will.
Grant of greater interest (Arts. 929 and
931)
Art. 929. If the testator, heir, or legatee owns
only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be
understood limited to such part or interest,
unless the testator expressly declares that he
gives
the
thing
in
its
entirety
GR: That only the part owned by the testator
should be given — applies whether or not the
testator knew that somebody else partly owned
the
property.
XPN: Expressly declare that he gives the thing
in its entirety.
(despite the testator’s knowledge that he does
NOT own the entire thing)
If the testator thought he owned the whole
thing and he says that he gives the whole thing,
only the part that he owns should be given,
the rest is void legacy, unless, subsequent to
the making of the will, he becomes the owner
of the said remainder.
Art. 931. If the testator orders that a thing
belonging to another be acquired in order that
it be given to a legatee or devisee, the heir upon
whom the obligation is imposed or the estate
must acquire it and give the same to the legatee
or devisee; but if the owner of the thing refuses
to alienate the same, or demands an excessive
price therefor, the heir or the estate shall only
be obliged to give the just value of the thing.
Rule: Only the heir upon whom the obligation
is imposed or the estate, i.e., the executor or
administrator, must acquire it and give the
same to the legatee or devisee.
If the owner refuses to alienate the same, or
demands an excessive price therefor, the
heir or the estate shall only be obliged to
give the just value of the thing.
Example: T in his will said: “I hereby order
my estate to acquire X’s automobile so that
same may be given to Y.” This is a valid
provision, and the automobile should be
acquired by the estate for delivery to Y. If X
refuses to sell, or if he demands an
excessive price, all that Y can oblige the
estate to give to him would be the just
value of the car.
Governing Law of Formal Validity (Art.
795)
Art. 795. The validity of a will as to its
form depends upon the observance of
the law in force at the time it is made.
Rule: if a law different from the law in force
at the time of the execution of the will goes
into effect before or after the death of
the testator, such a law shall not affect
the validity of the will, provided that such will was duly executed in accordance
with the formalities prescribed by the
law in force at the time it was made.
Reason: Although the will operates only
after the death of the testator, in reality, his
wishes regarding the disposition of his
estate among his heirs, devisees and
legatees are given solemn expression at the
time the will is executed and thus becomes
a completed act
EFFECT OF A NEW LAW CHANGING THE
FORMALITIES OF THE WILL
Before the death of
the testator but after
the execution of the
will.
The new law has no
retroactive effect.
XPN: when
retroactive effect is
(a) expressly
declared by the
statute itself; or (b)
necessarily i
After the death of the
testator.
The rules have no
effect because the
heirs already have
vested rights.
As to time of execution of the will
Art. 795. The validity of a will as to its form
depends upon the observance of the law in
force at the time it is made.
a. Extrinsic
Validity
(formality/solemnity) depends
upon the observance of the law in force
at the time it is made.
b. Intrinsic Validity (provision)- judged
at the time of the decedent’s death by
the law of his nationality.
As to the place of execution of the will
Filipino Testator
Executing a will in
the PH or before
the diplomatic or
consular official of
the Republic of the
PH in a foreign
county
Philippine Law
Executing a will
outside of the PH
Either:
a. The law of the
country which it
executed or
which he may be
b. The law of the PH
Either
a. The law of the
place where it is
executed;
b. The law of the
place in which he
resides;
c. The law of his
country; or
d. The law of the PH
Governing law of Substantive Validity of
a will
Intrinsic Validity (provision)- judged at
the time of the decedent’s death by the law
of his nationality.
The decedent's national law governs the
order of succession, the amount of
successional rights, the intrinsic validity
of the provisions of the will and capacity
to succeed.
23. Bellis v Bellis, 20 SCRA 358
Testamentary Capacity and Intent (Arts.
796 – 804)
Alien Testator
Executing a will in
the PH
Executing a will
outside of the PH
Either
a. Law of the PH
b. The Law of the
country of which
he is a citizen or
subject
Art. 796. All persons who are not expressly
prohibited by law may make a will.
Art. 797. Persons of either sex under
eighteEn years of age cannot make a will.
Art. 798. In order to make a will it is
essential that the testator be of sound mind
at the time of its execution. (n)
Art. 799. To be of sound mind, it is not
necessary that the testator be in full
possession of all his reasoning faculties, or
that his mind be wholly unbroken,
unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able at
the time of making the will to know the nature
of the estate to be disposed of, the proper
objects of his bounty, and the character of the
testamentary act.
Art. 800. The law presumes that every person
is of sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was not of
sound mind at the time of making his
dispositions is on the person who opposes the
probate of the will; but if the testator, one
month, or less, before making his will was
publicly known to be insane, the person who
maintains the validity of the will must prove
that the testator made it during a lucid interval.
Art. 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of
capacity.
Art. 802. A married woman may make a will
without the consent of her husband, and
without the authority of the court.
Art. 803. A married woman may dispose by will
of all her separate property as well as her share
of the conjugal partnership or absolute
community property.
Art. 804. Every will must be in writing and
executed in a language or dialect known to the
testator.
Testamentary Capacity (Arts. 796, 797
and 798; see also Arts. 37, 38 and 39)
Testamentary Capacity- refers to the ability
as well as the power to make a will.
Testamentary Power- refers to the privilege
granted to the testator to designate the person
or persons who are to succeed in his
inheritance.
Although a person may have testamentary
capacity to make a will, it does not
necessarily follow that he also has
testamentary power to do so. (Jurado)
PERSONS
CAPACITY
WITH
TESTAMENTARY
All persons who are not prohibited by law
may make a will.
Expressly prohibited from making a will
are those who do not possess the necessary
age and mental requirements.
Circumstances which
testamentary capacity
1.
2.
3.
4.
5.
6.
do
not
affect
Civil interdiction
Alienage
Prodigality
Insolvency;
Family relations; and
Other similar nature
Requisites to make a will
a. He must be at least 18 years of age;
and
b. He must be of sound mind
Testamentary capacity must exist at
the time of the execution of the will.
Soundness of the mind (Arts. 799 and
800)
Rule: it is not necessary that the testator be
in full possession of all his reasoning
faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by
disease, injury or other cause.
Test of a Sound mind.
It shall be sufficient if the testator was able
at the time of making the will to know : (in
general way)
a. the nature of the estate to be disposed
of,
b. the proper objects of his bounty; and
c. the character of the testamentary
act.
Rule: The evidence which should be
presented must cover a wide range in order
that all facts may be brought out which will
assist the court in determining the question
of
mental
capacity.
Presumption of sound Mind
Art. 800. The law presumes that every person
is of sound mind, in the absence of proof to the
contrary.
Example:
1. The testimony of the subscribing
witnesses and those present during
the execution of the will;
2. Testimony of the attending physician
concerning
testator’s
mental
condition
The burden of proof that the testator was not of
sound mind at the time of making his
dispositions is on the person who opposes the
probate of the will; but if the testator, one
month, or less, before making his will was
publicly known to be insane, the person who
maintains the validity of the will must prove
that the testator made it during a lucid interval.
Rule:
GR: The law presumes that the testator is of
sound of mind. The burden of proof that the
testator was not of sound mind at the time of
making his disposition is the person who
opposes the probate of the will.
XPNs: Inversion of Presumption
Burden of proving the sanity is cast upon the
proponent of the will when
a. The testator, (1) month or less, before
making his will, was publicly known to
be insane.
b. If the testator made the will after he had
been judicially declared to be insane and
before such judicial order has been set
aside;
c. He was under Guardianship at the time
of making his will.
24. De Guzman v Intestate Estate of
Francisco
Benitez,
169
SCRA
284
25. Baltazar v Laxa, 669 SCRA 249
SUFFICIENCY OF EVIDENCE OF MENTAL
CAPACITY
EFFECT OF CERTAIN INFIRMITIES
1. Old Age
Rule: mere senility or infirmity of
old age does not necessarily imply
that a person lacks testamentary
capacity.
XPN: Senile Dementia
It is a peculiar delay of the mental
difficulties whereby the person
afflicted is reduced to second
childhood.It is senility that produces
incapacity
To constitute senile dimentia, there
mus tbe such failure of hte mind as
to deprive the testator of the
intelligent action.
2. Infirmity or Disease
Rule: Physical infirmity or disease is
not
inconsistent
with
the
testamentary capacity.
XPN: In the case the testator, at the
time of the execution of the will, is
already comatose or semi-comatose
condition.
3. Mental Disease or Insanity
Rule: There may be mental
incapacity to make a will without
actual insanity.
Like persons suffering from idiocy
(those congenitally deficient in
intellect), and imbecility (those who
are mentally deficient as a result of
the disease) who do not possess the
necessary mental capacity to make a
will.
4. Mental Delusion
Rule: An insane delusion, which will
render one incapable of making a will,
may be defined as a belief in things
which do not exist, and which no rational
mind would believe to exist.
5. Belief in the Supernatural
Rule: Belief in spiritualism is not in itself
sufficient evidence of testamentary
incapacity.
However, a will executed by one under
such
an
extraordinary
belief
in
spiritualism that he follows, blindly and
implicitly, supposed directions of spirits
constructing the will not is not
admissible.
6. Drunkenness
GR: The admission of a will to probate
will not be denied merely on proof that
the testator was addicted to the
excessive use of alcoholic liquors or
drugs.
XPN: If at the time of the making of the
will, the testator was so much under the
influence of the intoxicants or drugs as
to be unable to bring to the business at
hand the calm judgment which the law
requires of a testator.
7. Deaf-mute and Blind Person can
make a will
Supervening Incapacity (Art. 801)
Art. 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of
capacity.
Rule: Supervening Incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening capacity
Testamentary Capacity of a Married
Woman (Arts. 802 and 803)
Art. 802. A married woman may make a will
without the consent of her husband, and
without the authority of the court.
Art. 803. A married woman may dispose by
will of all her separate property as well as
her share of the conjugal partnership or
absolute community property.
Rule:
The right of a married woman (or a married
man for that matter) to dispose of her share
in the conjugal partnership or absolute
community property, although there is no
question regarding the existence of the
right,
nevertheless,
such
right
of
disposition is subject to the result of
the settlement or liquidation of the
partnership or of the community.
Furthermore, what can be disposed of would
be merely the ideal share of the spouse
making the will and not any specific or
determinate property belonging to the
partnership or community.
Forms of Wills (Arts. 804 – 819)
Article 804. Every will must be in writing
and executed in a language or dialect known
to the testator. (n)
Article 805. Every will, other than a
holographic will, must be subscribed at the
end thereof by the testator himself or by the
testator's name written by some other
person in his presence, and by his express
direction, and attested and subscribed by
three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him
to write his name and the instrumental
witnesses of the will, shall also sign, as
aforesaid, each and every page thereof,
except the last, on the left margin, and all
the pages shall be numbered correlatively in
letters placed on the upper part of each
page.
if able to do so; otherwise, he shall
designate two persons to read it and
communicate to him, in some practicable
manner, the contents thereof. (n)
Article 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. (n)
Article 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
article 805. (n)
Article 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.
(678, 688a)
The attestation shall state the number of
pages used upon which the will is written,
and the fact that the testator signed the will
and every page thereof, or caused some
other person to write his name, under his
express direction, in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the
pages thereof in the presence of the testator
and of one another.
Article 811. 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.
If the attestation clause is in a language not
known to the witnesses, it shall be
interpreted to them. (n)
In the absence of any competent witness
referred to in the preceding paragraph, and
if the court deem it necessary, expert
testimony may be resorted to. (619a)
Article
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.(n)
Article 812. In holographic wills, the
dispositions of the testator written below his
signature must be dated and signed by him
in order to make them valid as testamentary
dispositions. (n)
Article 807. If the testator be deaf, or a
deaf-mute, he must personally read the will,
Article 813. When a number of dispositions
appearing in a holographic will are signed
without being dated, and the last disposition
has a signature and a date, such date
validates the dispositions preceding it,
whatever be the time of prior dispositions.
(n)
Article 814. In case of any insertion,
cancellation, erasure or alteration in a
holographic
will,
the
testator
must
authenticate the same by his full signature.
(n)
Article 815. When a Filipino is in a foreign
country, he is authorized to make a will in
any of the forms established by the law of
the country in which he may be. Such will
may be probated in the Philippines. (n)
Article 816. The will of an alien who is
abroad produces effect in the Philippines if
made with the formalities prescribed by the
law of the place in which he resides, or
according to the formalities observed in his
country, or in conformity with those which
this Code prescribes. (n)
Article 817. A will made in the Philippines
by a citizen or subject of another country,
which is executed in accordance with the law
of the country of which he is a citizen or
subject, and which might be proved and
allowed by the law of his own country, shall
have the same effect as if executed
according to the laws of the Philippines. (n)
Article 818. Two or more persons cannot
make a will jointly, or in the same
instrument, either for their reciprocal
benefit or for the benefit of a third person.
(669)
Article 819. Wills, prohibited by the
preceding article, executed by Filipinos in a
foreign country shall not be valid in the
Philippines, even though authorized by the
laws of the country where they may have
been executed. (733a)
Special Formalities of Ordinary Wills
(1) The will must be in writing;
(2) The will must be written in a language or dialect
known to the testator;
(3) The will must be subscribed at the end thereof
by the testator himself or by the testator’s name
written by some other person in his presence and
by his express direction;
(4) The will must be attested and subscribed by
three or more credible witnesses in the presence of
the testator and of one another;
(5) The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign each and every page
thereof, except the last, on the left margin;
(6) All the pages of the will shall be numbered
correlatively in letters placed on the upper part of
each page;
(7) The will must contain an attestation clause; and
(8) The will must be acknowledged before a notary
public by the testator and the witnesses.
NOTE: There are special safeguards or solemnities
prescribed by the Code in case testator is deaf, a
deaf-mute, or blind
Notarial Will (Arts. 804 to 808)
Article 804. Every will must be in writing and
executed in a language or dialect known to the
testator. (n)
Article 805. Every will, other than a holographic
will, must be subscribed at the end thereof by the
testator himself or by the testator's name written
by some other person in his presence, and by his
express direction, and attested and subscribed by
three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the
presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all
the pages thereof in the presence of the testator
and of one another.
-
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
them. (n)
-
Article 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.(n)
Article 807. If the testator be deaf, or a deafmute, he must personally read the will, if able to
do so; otherwise, he shall designate two persons
to read it and communicate to him, in some
practicable manner, the contents thereof. (n)
Article 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. (n)
2 Formalities under Art. 804:
1) the will must be in writing;
(2) must be written in a language or dialect known to
the testator.
Requirement of Notarial Acknowledgment (Art.
806)
Notarial
Acknowledgment.
—mandatory
requirement in the execution of an ordinary will, it it
must be acknowledged before a notary public by the
testator and the instrumental witnesses.
Notary public is not be required to retain a copy of the
will, or file another with the office of the Clerk of Court
as in the case of other instruments.
Although the law speaks of “every will,” it is apparent
that the provision prescribing this requirement is
applicable only to ordinary wills.
Purpose of the Formalities
-
To close the door against bad faith and
fraud,
To avoid substitution of wills and testaments
To
guarantee
authenticity.
their
truth
and
Written instrument
-
-
formalities must be complied with in the
execution of wills, whether ordinary or
holographic.
if the will is holographic - entirely written
in the handwriting of the testator himself.
If the will is ordinary - does not matter on
what material it is written, and may be by
hand or typewritten, printed from plates or
type, or mixed.
The law does not specify that the testator
himself must perform the act of writing,
except with holographic wills
Language Requirement
-
-
Every will must be executed in a language
or dialect known to the testator.
Applicable both to ordinary and holographic
wills.
testator’s knowledge or understanding of
the language or dialect in which the will is
executed may be established by proof
aliunde, no need to be expressed in the will
itself
presumption that the will is drawn up in
a language or dialect known to the
testator – arises when the will is drawn up
in the dialect of a certain locality where
testator was established as living in/a
resident of
26. Suroza v Honrado, 110 SCRA 388
27. Reyes v vda. de Vidal, 2 SCUD 53
Testator’s signature at the end of the
will
Under Art. 805 - Every will, other than a
holographic will, must be subscribed at
the end thereof by the testator or by the
testator’s name written by some other person
in his presence, and by his express direction.
Subscription - the manual act of the testator
and also of the instrumental witnesses of
affixing their signatures to the instrument.
Purpose
purpose is two-fold: it is to identify the testator
and authenticate the documents
28. Taboada v Rosal, 118 SCRA 195
Customary signature; facsimile
signature
-
Manner
depends largely on the custom of the time and
place, the habit of the individual, and the
circumstances of each particular case
should be manifest that whatever is used is
actually intended as a signature (customary
signatures)
Doesn’t matter if imperfect or illegible; it is
a sufficient signature if:
o a) he intended it as his signature,
o b) manifest that whatever he used
as his signature was intended for
that purpose.
o Ex. initials, first name only, assumed
name or a name different from the one
used to designate him as a testator in
the body of the will, rubber stamp,
thumbmark, etc.
o Can even be cross or symbols, but
without any proof that it is the usual
signature of the testator or at least one
of the ways by which he signed his
name, it is not a sufficient signature
Testator signing through an agent
-
Requirements:
o Must be the testator’s name that must
have been written by the third person.
o Testator’s name must have been
written in his presence
requirement cannot be
complied with unless the
testator was conscious of
what was going on at the
time.
o Third person must have affixed the
testator’s name at his express
direction
 Testator shall, by word of
mouth or action, clearly
indicate a desire to have his
name signed to the
instrument,
 in absence of a specific
requirement, any manner of
signifying such desire will
suffice
 if testator can only do so by
action/gesture/conduct
 conduct must be as
clear and
unambiguous as
words authorizing the
signature.
 testator’s mere knowledge/
acquiescence that his name
was being signed for him is
insufficient
law doesn’t require any specific form in
which the name of the testator is affixed by
3rd person
Jurisprudence - If testator does not know
how/unable for any reason to sign the will
himself, it shall be signed in the ff.
manner: John Doe, by the testator,Richard Roe, or in this form: By the
testator, John Doe, Richard Roe. (Ex-parte
Arcenas)

-
29. Balonan v Abellana, 109 Phil 359
Attested and subscribed by three
credible witnesses
-
Art. 805 - 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.
o Fact must be stated, among others,
in the attestation clause.
-
-
Instrumental witness - one who takes part in
the execution of an instrument or writing.
Attestation - act of the witnesses (not
testator) 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.
Subscription - manual act of the instrumental
witnesses in affixing their signatures to the
instrument.
Attestation v. Subscription
Attestation
an act of the senses
mental act
Purpose
render
available proof during
the
probate
proceedings that:
- will
has
been
executed
in
accordance
with
the requirements
prescribed by law
(due execution
- Instrument
is
authentic.
(Authenticity)
Subscription
an act of the hand
mechanical act
Its only purpose is
identification.
30. Icasiano v Icasiano, 11 SCRA 422
Credible v Competent Witnesses
Credible Witness – depends on the appreciation
of his testimony and arises from the belief and
conclusion of the Court that said witness is telling
the truth.
Competence - In the strict sense, the
competency of a person to an instrumental witness
to a will is determined by the statute, that is Art.
820 and 821, Civil Code
Accdg. to SC - “Competency as a witness is one thing,
and it is another to be a credible witness, so credible
that the Court must accept what he says. Trial courts
may allow a person to testify as a witness upon a given
matter because he is competent, but may thereafter
decide whether to believe or not to believe his
testimony.”
31. Nera v Rimando, 18 Phil 450
Test of presence
Presence - The phrase “in the presence of the
testator and of one another” has a technical
meaning: 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
Purpose - to prevent the substitution of a
surreptitious will
The true test of presence of the testator and the
witnesses in the execution of wills 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.
Signatures on the left margin
Under Art. 805, the testator/3rd person to sign for
him, and the instrumental witnesses of the will,
shall also sign each and every page except the
last, on the left margin.
- Requirement is mandatory in character
- Requirement
regarding
the
location
however is not mandatory (left margin)
o As long as signatures are in every
page except the last
- attestation clause shall state the fact.
- Will offered for probate shall be
disallowed if:
o if even one of the pages of the will
does not contain the required
marginal signature
o pages are not signed by the
witnesses although signed by the
testator
o pages are not signed by the testator
although they are signed by the
witnesses
Pagination Requirement
-
-
-
-
Under Art. 805 it is essential that all of the
pages of the will, except the last, should be
signed not only by the testator but also by all of
the instrumental witnesses.
It is also essential that all of the pages shall
be numbered correlatively in letters placed
on the upper part of each page.”
Purpose - to forestall any attempt to suppress
or substitute any of the pages of the will.
Requirement is mandatory in character.
o Exception - when all of the dispositive
parts of a will are written on one
sheet only.
o Neither is it necessary that the pages of
the will shall be numbered correlatively
in letters such as “one,” “two” or “three.”
According to the weight of authority,
substantial
compliance
with
the
statutory requirement is sufficient.
Consequently, if the page of a will are
numbered
by
mere
alphabetical
letters,48 or by Arabic numerals,49 or
by any form of identification,50 there is
sufficient compliance with the statutory
requirement.
Exceptions to the rule that all pages shall
have to be signed on the left margin by the
testator and the witnesses:
o (1) in the last page, when the will
consists of two or more pages;
o (2) when the will consists of only one
page; and
o (3) when the will consists of 2 pages,
the first of which contains all the
testamentary disposition and is signed
at the bottom by the testator and the
witnesses and the second contains only
the attestation clause duly signed at the
bottom by the witnesses.
32. Lopez v Liboro, 81 Phil 429
Attestation Clause
-
-
-
-
Attestation Clause - a memorandum or
record of facts wherein the witnesses
certify that the instrument has been
executed before them, and that it has been
executed in accordance with the formalities
prescribed by law.
Purpose - preserving in permanent form,
a record of the facts attending the
execution of a will, so that in case of failure
of the memory of the instrumental
witnesses or in case such witnesses are no
longer available, such facts may still be
proved.
must express the material matters
mentioned in the law (now Art. 805 of the
Civil Code) with substantial accuracy.
Essential requirement for the validity of an
ordinary will; Absence will render the will a
nullity.
3 essential facts which must necessarily
appear in the attestation clause to properly
constitute a real certification (Art. 805)
(1) The number of pages used upon which the will
is written;
(2) The fact that the testator signed the will and
every page thereof, or caused some other person
to write his name, under his express direction, in
the presence of the instrumental witnesses; and
(3) The fact that the instrumental witnesses
witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another.
Who signs? – By the witnesses, not testators
- Why? Since the clause is a declaration of the
witnesses and not of the testator
Location - must be located right after the
signature of the testator at the end of the will.
- Location not mandatory,
Defects in Attestation Clause
- If the defects goes into the very essence of
the clause itself or consists in the omission
of one, some or all of the essential facts
which, according to law, must be stated in
-
-
-
such clause, which cannot be cured by an
examination of the will itself, the defect is
substantial in character,
If the defects do not go into the very essence of
the clause itself or they consist in defects or
imperfections in the form of the attestation or
in the language used therein, such defects are
merely formal and not affect validity of the will
o Doctrine of liberal interpretation
Effect - will is invalidated, even if authenticity
of the will offered for probate is not assailed.
o Why? requirements regarding the
attestation clause affords additional
security against the danger that the will
may be tampered with
Defect in Location – where clause is found in
the body of the will itself followed by the
pertinent signatures so that, on its face, it
appears to be an attestation made by the
testator himself more than by instrumental
witnesses, though attestation clause is clearly
defective, anomaly is not serious and
substantial as to affect the validity of the will.
-
Language - language known to the witnesses; if not,
it shall be interpreted to them.
- different from what is required of the will itself
because the latter must be executed in a
language or dialect known to the testator.
Failure to state the number of pages
33. Taboada v Rosal, 118 SCRA 195
Error in indicating the number of pages
34. Samaniego-Celada v Abena, 556 SCRA
569
35. Lopez v Lopez, 685 SCRA 209
Failure to state the number of witnesses
36. Testate Estate of Alipio Adaba v
Abaja, 450 SCRA 264