Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.

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Vitug v. Court of Appeals

Facts:
1. The case is a chapter in an earlier suit involving the issue on two (2)
wills of the late Dolores Vitug who died in New York, USA in Nov 1980.
She named therein private respondent Rowena Corona (Executrix)
while Nenita Alonte was co-special administrator together with
petitioner Romarico pending probate.

2. In January 1985, Romarico filed a motion asking for authorization of
the probate court to sell shares of stocks and real property of the estate
as reimbursements for advances he made to the estate. The said
amount was spent for payment of estate tax from a savings account in
the Bank of America.

3. Rowena Corona opposed the motion to sell contending that from the
said account are conjugal funds, hence part of the estate. Vitug insisted
saying that the said funds are his exclusive property acquired by virtue
of a survivorship agreement executed with his late wife and the bank
previously. In the said agreement, they agreed that in the event of death
of either, the funds will become the sole property of the survivor.

4. The lower court upheld the validity of the survivorship agreement
and granted Romarico's motion to sell. The Court of Appeals however
held that said agreement constituted a conveyance mortis causa which
did not comply with the formalities of a valid will. Further, assuming
that it is donation inter vivos, it is a prohibited donation. Vitug
petitioned to the Court contending that the said agreement is an
aleatory contract.

Issue: Whether or not the conveyance is one of mortis causa hence
should conform to the form required of wills

NO. The survivorship agreement is a contract which imposed a mere
obligation with a term--being death. Such contracts are permitted
under Article 2012 on aleatory contracts. When Dolores predeceased
her husbandm the latter acquired upon her death a vested right over
the funds in the account. The conveyance is therefore not mortis causa.

110 SCRA 388 Succession Will Should be Written in a Language
Known to the Testator
SUROZA vs HONRADO
In 1973, Marcelina Suroza supposedly executed a notarial will
bequeathing her house and lot to a certain Marilyn Suroza. In 1974,
Marcelina died. Marina Paje was named as the executrix in the said will
and she petitioned before CFI Rizal that the will be admitted to probate.
The presiding judge, Honrado admitted the will to probate and
assigned Paje as the administratrix. Honrado also issued an ejectment
order against the occupants of the house and lot subject of the will.
Nenita Suroza, daughter in law of Marcelina (her husband, son of
Marcelina was confined in the Veterans Hospital), learned of the
probate proceeding when she received the ejectment order (as she was
residing in said house and lot).
Nenita opposed the probate proceeding. She alleged that the said
notarial will is void because (a) the instituted heir therein Marilyn
Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b) the
only son of Marcelina, Agapito Suroza, is still alive and is the
compulsory heir, (c) the notarial will is written in English a language
not known to Marcelina because the latter was illiterate so much so
that she merely thumbmarked the will, (d) the notary public who
notarized will admitted that Marcelina never appeared before him and
that he notarized the said will merely to accommodate the request of a
lawyer friend but with the understanding that Marcelina should later
appear before him but that never happened.
Honrado still continued with the probate despite the opposition until
testamentary proceeding closed and the property transferred to
Marilyn Sy.
Nenita then filed this administrative case against Honrado on the
ground of misconduct.
ISSUE: Whether or not Honrado is guilty of misconduct for admitting
into probate a void will.
HELD: Yes. Despite the valid claim raised by Nenita, he still continued
with the testamentary proceeding, this showed his wrongful intent. He
may even be criminally liable for knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence or
ignorance.
Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
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The will is written in English and was thumb marked by an obviously
illiterate Marcelina. This could have readily been perceived by Honrado
that that the will is void. In the opening paragraph of the will, it was
stated that English was a language understood and known to the
testatrix. But in its concluding paragraph, it was stated that the will was
read to the testatrix and translated into Filipino language. That could
only mean that the will was written in a language not known to the
illiterate testatrix and, therefore, it is void because of the mandatory
provision of Article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator. Had Honrado
been careful and observant, he could have noted not only the anomaly
as to the language of the will but also that there was something wrong
in instituting to Marilyn Sy as sole heiress and giving nothing at all to
Agapito who was still alive.
Honrado was fined by the Supreme Court.

Payad vs. Tolentino G.R. No. 42258. January 15, 1936
FACTS Victorio Payad filed a petition for the probate of the will of the
decedent Leoncia Tolentino. This was opposed by Aquilina Tolentino,
averring that said Will was made only after the death of the testatrix.
The lower court denied the probate of the will on the ground that the
attestation clause was not in conformity with the requirements of the
law since it was not stated therein that the testatrix caused Atty.
Almario to write her name at her express direction. Hence, this petition.

ISSUE Was it necessary that the attestation clause state that the
testatrix caused Atty. Almario to write her name at her express
direction?

HELD - The evidence of record establishes the fact the Leoncia
Tolentino, assisted by Attorney Almario, placed her thumb mark on
each and every page of the questioned will and that said attorney
merely wrote her name to indicate the place where she placed said
thumb mark. In other words Attorney Almario did not sign for the
testatrix. She signed by 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." (Quoted by this court from
28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It is
clear, therefore, that it was not necessary that the attestation clause in
question should state that the testatrix requested Attorney Almario to
sign her name inasmuch as the testatrix signed the will in question in
accordance with law.

Garcia v. Lacuesta
G.R. L-4067 November 29, 1951
Ponente: Paras, C.J.

Facts:
1. The CA disallowed the probate of the will of Antero Mercado dated
Jan 1943. The said will was written in Ilocano dialect.

2. The will appears to have been signed by Atty. Florentino Javier who
wrote the name of the testator followed below by 'A ruego del testador'
and the name of Florentino Javier. In effect, it was signed by another
although under the express direction of the testator. This fact however
was not recited in the attestation clause. Mercado also affixed a cross
on the will.

3. The lower court admitted the will to probate but this order was
reversed by the Court of Appeals on the ground that the attestation
failed to recite the facts surrounding the signing of the testator and the
witnesses.

Issue: Whether or not the attestation clause in the will is valid

HELD: NO the attestation is fatally defective for its failure to state that
Antero or the testator caused Atty. Javier to write the former's name
under his express direction as required by Sec. 618 of the Civil
Procedure. Finally, on the cross affixed on the will by the testator, the
Court held that it is not prepared to liken the mere sign of a cross to a
thumbmark for obvious reasons- the cross does not have the
trustworthiness of a thumbmark so it is not considered as a valid
signature.




Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
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Barut vs. Cabacungan
G.R. L-6825 Febriary 15, 1912
Ponente: SC Justice Moreland

Facts:
1.Pedro Barut applied for the probate of the will of Maria Salomon. It is
alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos
Sur leaving the will dated March 3, 1907. The said will was witnessed
by 3 persons. From the terms it appears that the petitioner received a
larger part of decedent's property. After this disposition, the testatrix
revoked all other wills and stated that since she is unable to read nor
write, the will was read to her and that she has instructed Severino
Agapan, one of the witnesses to sign her name in her behalf.

2. The lower court ruled that the will is not entitled to probate on the
sole ground that the handwriting of the person who signed the name of
the testatrix does not appear to be that of Agapan but that of another
witness.

Issue: Whether or not a will's validity is affected when the person
instructed by a testator to write his name did not sign his name

HELD: No, it is immaterial who wrote the name of the testator provided
it is written at her request and in her present, and in the presence of
the witnesses. This is the only requirement under Sec. 618 of the Civil
Code of procedure at that time.

Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964


Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa
Villacorte and for his appointment as executor thereof. It appears from
the evidence that the testatrix died on September 12, 1958. She
executed a will in Tagalog, and through the help of her lawyer, it was
prepared in duplicates, an original and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only
brought the original copy of the will while the carbon duplicate
(unsigned) was left in Bulacan. One of the witnesses failed to sign one
of the pages in the original copy but admitted he may have lifted 2
pages simultaneously instead when he signed the will. Nevertheless, he
affirmed that the will was signed by the testator and other witnesses in
his presence.

Issue: Whether or not the failure of one of the subscribing
witnesses to affix his signature to a page is sufficient to deny
probate of the will

RULING: No, the failure to sign was entirely through pure oversight or
mere inadvertence. Since the duplicated bore the required signatures,
this proves that the omission was not intentional. Even if the original is
in existence, a duplicate may still be admitted to probate since the
original is deemed to be defective, then in law, there is no other will bu
the duly signed carbon duplicate and the same can be probated.

The law should not be strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of a single witness over
whose conduct she has no control of. Where the purpose of the law is to
guarantee the identity of the testament and its component pages, and
there is no intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules
that the will should be signed by the witnesses on every page. The
carbon copy duplicate was regular in all respects.
Abangan v. Abangan

Facts:
1. On September 1917, the CFI of Cebu admitted to probate Ana
Abangan's will executed on July 1916. It is from this decision which the
opponent appealed. It is alleged that the records do not show the
testatrix knew the dialect in which the will was written.

Issue: Whether or not the will was validly probated

YES. The circumstance appearing on the will itself, that it was executed
in Cebu City and in the dialect of the place where the testarix is a
Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
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resident is enough to presume that she knew this dialect in the absence
of any proof to the contrary. On the authority of this case and that of
Gonzales v Laurel, it seems that for the presumption to apply, the
following must appear: 1) that the will must be in a language or dialect
generally spoken in the place of execution, and, 2) that the testator
must be a native or resident of the said locality


Testate Estate of Cagro vs. Cagro
G.R. L-5826

Facts:
1. The case is an appeal interposed by the oppositors from a decision of
the CFI of Samar which admitted to probate a will allegedly executed by
Vicente Cagro who died in Pambujan, Samar on Feb. 14, 1949.

2. The appellants insisted that the will is defective because the
attestation was not signed by the witnesses at the bottom although the
page containing the same was signed by the witnesses on the left hand
margin.

3. Petitioner contended that the signatures of the 3 witnesses on the
left hand margin conform substantially to law and may be deemed as
their signatures to the attestation clause.

Issue: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the
facts attending the execution of the will. It is required by law to be
made by the attesting witnesses and it must necessarily bear their
signatures.
An unsigned attestation clause cannot be considered as an act of the
witnesses since the omission of their signatures at the bottom
negatives their participation.

Moreover, the signatures affixed on the let hand margin is not
substantial conformance to the law. The said signatures were merely in
conformance with the requirement that the will must be signed on the
left-hand margin of all its pages. If the attestation clause is unsigned by
the 3 witnesses at the bottom, it would be easier to add clauses to a will
on a subsequent occasion and in the absence of the testator and any or
all of the witnesses.

The probate of the will is denied.

Nera v. Rimando
G.R. L-5971 February 27, 1911
Ponente: Carson, J.:

'Test of Presence'

Facts:
1. At the time the will was executed, in a large room connecting with a
smaller room by a doorway where a curtain hangs across, one of the
witnesses was in the outside room when the other witnesses were
attaching their signatures to the instrument.

2. The trial court did not consider the determination of the issue as to
the position of the witness as of vital importance in determining the
case. It agreed with the ruling in the case of Jaboneta v. Gustillo that the
alleged fact being that one of the subscribing witnesses was in the
outer room while the signing occurred in the inner room, would not be
sufficient to invalidate the execution of the will.

3. The CA deemed the will valid.

Issue: Whether or not the subscribing witness was able to see the
testator and other witnesses in the act of affixing their signatures.

HELD: YES
The Court is unanimous in its opinion that had the witnesses been
proven to be in the outer room when the testator and other witnesses
signed the will in the inner room, it would have invalidated the will
since the attaching of the signatures under the circumstances was not
done 'in the presence' of the witnesses in the outer room. The line of
vision of the witness to the testator and other witnesses was blocked by
the curtain separating the rooms.

Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
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The position of the parties must be such that with relation to each other
at the moment of the attaching the signatures, they may see each other
sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or not they
actualy saw each other sign but whether they might have seen each
other sign if they chose to doso considering their physical, mental
condition and position in relation to each other at the moment of the
inscription of the signature.

Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:

Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of
the late Valenti Cruz. However, the petitioner opposed the allowance of
the will alleging that it was executed through fraud, deceit,
misrepresentation, and undue influence. He further alleged that the
instrument was executed without the testator having been informed of
its contents and finally, that it was not executed in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary before
whom the will was acknowledged. Despite the objection, the lower
court admitted the will to probate on the ground that there is
substantial compliance with the legal requirements of having at least 3
witnesses even if the notary public was one of them.

Issue: Whether or not the will is valid in accordance with Art. 805
and 806 of the NCC

HELD: NO.
The will is not valid. The notary public cannot be considered as the
third instrumental witness since he cannot acknowledge before himself
his having signed the said will. An acknowledging officer cannot serve
as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent,
admit, and 'before' means in front of or preceding in space or ahead of.
The notary cannot split his personality into two so that one will appear
before the other to acknowledge his participation int he making of the
will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any
illegal or immoral arrangements, a function defeated if he were to be
one of the attesting or instrumental witnesses. He would be interested
in sustaining the validity of the will as it directly involves himself and
the validity of his own act. he would be in an inconsistent position,
thwarting the very purpose of the acknowledgment, which is to
minimize fraud.

Javellana vs. Ledesma
G.R. No. L-7179

Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed by
the deceased Apolinaria Ledesma in July 1953. This testament was
deemed executed on May 1950 and May 1952. The contestant was the
sister and nearest surviving relative of the deceased. She appealed
from this decision alleging that the will were not executed in
accordance with law.

2. The testament was executed at the house of the testatrix. One the
other hand, the codicil was executed after the enactment of the New
Civil Code (NCC), and therefore had to be acknowledged before a notary
public. Now, the contestant, who happens to be one of the instrumental
witnesses asserted that after the codicil was signed and attested at the
San Pablo hospital, that Gimotea (the notary) signed and sealed it on
the same occasion. Gimotea, however, said that he did not do so, and
that the act of signing and sealing was done afterwards.

2. One of the allegations was that the certificate of acknowledgement to
the codicil was signed somewhere else or in the office of the notary. The
ix and the witnesses at the hospital, was signed and sealed by the
notary only when he brought it in his office.

Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
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Issue: Whether or not the signing and sealing of the will or codicil
in the absence of the testator and witnesses affects the validity of
the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not
require that the signing of the testator, the witnesses and the notary be
accomplished in one single act. All that is required is that every will
must be acknowledged before a notary public by the testator and
witnesses. The subsequent signing and sealing is not part of the
acknowledgement itself nor of the testamentary act. Their separate
execution out of the presence of the testator and the witnesses cannot
be a violation of the rule that testaments should be completed without
interruption.

AVERA vs. GARCIA
Facts: Eutiquia Avera instituted for the probate of the will of Esteban
Garcia and contest was made by Marino Garcia and Juan Rodriguez as
guardian for the minors Jose Garcia and Cesar Garcia. Upon the date
appointed for the hearing, the proponent of the will introduced one of
the three attesting witnesses who testified that the will was executed
with all necessary external formalities, and that the testator was at the
time in full possession of disposing faculties. Two of the attesting
witnesses were not introduced, nor was their absence accounted for by
the proponent of the will. The trial judge found that the testator at the
time of the making of the will was of sound mind and disposing
memory and that the will had been properly executed. He accordingly
admitted the will to probate. From this judgment an appeal was
taken with the following assigned errors. First, whether a will can be
admitted to probate, where opposition is made, upon the proof of a
single attesting witness, without producing or accounting for the
absence of the other two; and, secondly, whether the will in question is
rendered invalid by reason of the fact that the signature of the testator
and of the three attesting witnesses are written on the right margin of
each page of the will instead of the left margin. (These are the ISSUES)
Held:
1. Upon the first point, while it is undoubtedly true that an uncontested
will bay be provedby the testimony of only one of the three attesting
witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this
court declared after an elaborate examination of the American and
English authorities that when a contest is instituted, all of the attesting
witnesses must be examined, if alive and within reach of the process of
the court. It appears, however, that this point was not raised by the
appellant in the lower court either upon the submission of the cause for
determination in that court or upon the occasion of the filing of the
motion for a new trial. Accordingly it is insisted for the appellee that
this question cannot now be raised for the first time in this court.
2. No. It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin of each
and every page; and it is undeniable that the general doctrine is to the
effect that all statutory requirements as to the execution of wills must
be fully complied with. Still some details at times creep into legislative
enactments which are so trivial it would be absurd to suppose that the
Legislature could have attached any decisive importance to them. The
instrument now before us contains the necessary signatures on every
page, and the only point of deviation from the requirement of the
statute is that these signatures appear in the right margin instead of the
left. By the mode of signing adopted every page and provision of the
will is authenticated and guarded from possible alteration in exactly the
same degree that it would have been protected by being signed in the
left margin; and the resources of casuistry could be exhausted without
discovering the slightest difference between the consequences of
affixing the signatures in one margin or the other.

Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969
Fernando, J (Ponente)

Facts:
1. Gliceria del Rosario executed 2 wills, one in June 1956, written in
Spanish, a language she knew an spoke. The other will was executed in
December 1960 consisting of only one page, and written in Tagalog.
The witnesses to the 1960 will declared that the will was first read
'silently' by the testatrix before signing it. The probate court admitted
the will.

2. The oppositors alleged that the as of December 1960, the eyesight of
the deceased was so poor and defective that she could not have read
the provisions contrary to the testimony of the witnesses.
Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
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Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of the New
Civil Code (NCC) should apply.If the testator is blind or incapable of
reading, he must be apprised of the contents of the will for him to be
able to have the opportunityto object if the provisions therein are not in
accordance with his wishes.

The testimony of her opthalmologist established that notwithstanding
an operation to remove her cataract and being fitted with the lenses,
this did not improve her vision. Her vision remained mainly for viewing
distant objects and not for reading. There was no evidence that her
vision improved at the time of the execution of the 2nd will. Hence, she
was incapable of reading her own will. The admission of the will to
probate is therefor erroneous.

ALVARADO vs. GAVIOLA

September 14, 1993

FACTS:

The testator did not read the final draft of the will himself.
Instead, private respondent, as the lawyer who drafted the 8-paged
document, read the same aloud in the presence of the testator, the 3
instrumental witnesses and the notary public. The latter 4 followed the
reading with their own respective copies previously furnished them.

Said will was admitted to probate. Later on, a codicil was
executed, and by that time, the testator was already suffering from
glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the presence of the
three instrumental witnesses (same as those of the notarial will) and
the notary public who followed the reading using their own copies.

ISSUE:

Was there substantial compliance to the reading of the will?

HELD:

Article 808 not only applies to blind testators, but also to
those who, for one reason or another, are incapable of reading
their wills. Hence, the will should have been read by the notary public
and an instrumental witness. However, the spirit behind the law was
served though the letter was not. In this case, there was substantial
compliance. Substantial compliance is acceptable where the purpose
of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator
from all kinds of fraud and trickery but are never intended to be so
rigid and inflexible as to destroy the testamentary privilege.

In this case, private respondent read the testator's will and
codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and
acknowledgement take place.

Tedoro CANEDA, et al., petitioners vs.
Hon. COURT OF APPEALS and William CABRERA, as Special
Administrator
of the Estate of Mateo Caballero, respondents.
G.R. No. 103554, May 28, 1993
FACTS:
Mateo Caballero, a widower without any children, executed a last
will and testament before three attesting witnesses and he was duly
assisted by his lawyer and a notary public. It was declare therein that,
among other things, that the testator was leaving by way of legacies and
devises his real and personal properties to specific persons, all of whom
do not appear to be related to Mateo. Not long after, he himself filed a
petition before the CFI seeking the probate of his last will and
testament but the scheduled hearings were postponed, until the
testator passed away before his petition could finally be heard by the
probate court. Benoni Cabrera, one of the legatees named in the will,
Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
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sought his appointment as special administrator of the testators estate
but due to his death, he was succeeded by William Cabreara, who was
appointed by RTC which is already the probate court. In the course of
the hearing, herein petitioners claiming to be nephews and nieces of
the testator, appeared as oppositors and objected to the allowance of
the testators will on the ground that on the alleged date of its
execution, the testator was already in the poor state of health such that
he could not have possibly executed the same; and that the signature of
the testator is not genuine. The probate court rendered a decision that
such will is the Last Will and Testament of Mateo Caballero and that it
was executed in accordance with all the requisites of the law. Upon
appeal to CA, the petitioners asserted that the will in question is null
and void for the reason that its attestation clause is fatally defective
since it fails to specifically state the instrumental witnesses to the will
witnessed the testator signing the will in their presence and that they
also signed the will and all the pages thereof in the presence of the
testator and of one another. However, CA affirmed the decision of the
trial court ruling and ruling that the attestation clause in the Last Will
substantially complies with Article 805 of the Civil Code. Due to denial
of petitioners motion for reconsideration, hence this appeal before the
Supreme Court.
ISSUES:
1. Whether or not the attestation clause in the last will of
Mateo Caballero is fatally defective such that whether or
not it affects the validity of the will.
2. Whether or not the attestation clause complies with the
substantial compliance pursuant to Article 809 of the Civil
Code.
RULING:
An attestation clause refers to that part of an ordinary will whereby
the attesting witnesses certify that the instrument has been executed
before them and to the manner of the execution of the same. It is a
separate memorandum or record of the facts surrounding the conduct
of execution and once signed by the witnesses, it gives affirmation to
the fact that compliance with the essential formalities required by law
has been observed. Under the 3
rd
paragraph of Article 805, such a
clause, the complete lack of which would result in the invalidity of
the will, should state:
1. The number of pages used upon which the will is written;
2. That the testator signed, or expressly cause another to
sign, the will and every page thereof in the presence of the
attesting witnesses; and
3. That the attesting witnesses witnessed the signing by the
testator of the will and all its pages, and that the said
witnesses also signed the will and every page thereof in
the presence of the testator and of one another.
It will be noted that Article 805 requires that the witness should
both attest and subscribe to the will in the presence of the testator and
of one another. Attestation and subscription differ in meaning.
Attestation is the act of sense, while subscription is the act of the hand.
The attestation clause herein assailed is that while it recites that the
testator indeed signed the will and all its pages in the presence of the
three attesting witnesses and states as well the number of pages that
were used, the same does not expressly state therein the circumstance
that said witnesses subscribed their respective signatures to the will in
the presence of the testator and of each other. What is then clearly
lacking, is the statement that the witnesses signed the will and every page
thereof in the presence of the testator and of one another.
The absence of the statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate. Petitioners are
correct in pointing out that the defect in the attestation clause
obviously cannot be characterized as merely involving the form of the
will or the language used therein which would warrant the application
of the substantial compliance rule, as contemplated in Article 809 of the
Civil Code:
In the absence of bad faith, forgery, or fraud or undue and improper
pressure and influence, defects and imperfection in the form of
attestation or in the language used therein shall not render the will
invalid if it is not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805.
The defects and imperfection must only be with respect to the form
of the attestation or the language employed therein. Such defects or
imperfection would not render a will invalid should it be proved that
the will was really executed and attested in compliance with Article
805. These considerations do not apply where the attestation clause
totally omits the fact that the attesting witnesses signed each and every
page of the will in the presence of the testator and of each other. In such
Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
9

a situation, the defect is not only in the form or language of the
attestation clause but the total absence of a specific element required
by Article 805 to be specifically stated in the attestation clause of a will.
That is precisely the defect complained of in the present case since
there is no plausible way by which it can be read into the questioned
attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the testator
of the will and all of its pages and that said instrumental witnesses also
signed the will and every page thereof in the presence of the testator
and of one another.

Danilo ALUAD, et al., petitioners vs.
Zenaido ALUAD, respondent
G.R. No. 176943, October 17, 2008
FACTS:
Petitioners mother, Maria Aluad and respondent Zenaido Aluad
were raised by the childless spouses Matilde and Crispin Aluad. Crispin
was the owner of six lots of Pilar Cadastre, Capiz. After his death,
Matilde adjudicated the lots to herself and thereafter, she executed a
Deed of Donation of Real Property Inter Vivos in favor of Maria covering
all the six lots. The Deed provided that such
will become effective upon the death of the Donor, but in
the event that the Donee should die before the Donor,
the present donation shall be deemed rescinded.
Provided, however, that anytime during the lifetime of
the Donor or anyone of them who should survive, they
could use, encumber or even dispose of any or even all of
the parcels of the land.
Matilde sold one of the lots to Zenaido and subsequently, Matilde
executed a last will and testament devising four (4) of the lots to Maria
and the remaining lot to Zenaido. Maria died a few months after
Matildes death. Thereafter, Marias heirs (herein petitioners) filed
before the RTC a complaint for declaration and recovery of ownership
and possession of the two lots conveyed and donated to Zenaido,
alleging that no rights have been transmitted to the latter because such
lots have been previously alienated to them to Maria via the Deed of
Donation. The lower court decided in favor of the petitioners however,
CA reversed said decision upon appeal of Zenaido which held that the
Deed of Donation was actually a donation mortis causa, not inter vivos
and as such it had to, but did not, comply with the formalities of a will.
Due to the denial of the petitioners Motion for Reconsideration, the
present Petition for Review has been filed.
ISSUES:
1. Whether or not the Deed of Donation is donation inter
vivos and whether or not such deed is valid.
2. If so, whether or not Matilde Aluad has the right to convey
the lots in question to Zenaido Aluad.
RULING:
The Court finds the donation to Maria Aluad (petitioners mother)
one of mortis causa, it having the following characteristics:
1. It conveys no title or ownership to the transferee before
the death of the transferor, or what amounts to the same
thing, that the transferor should retain the ownership (full
or naked) and control of the property while alive;
2. That before the death of the transferor, the transfer should
be revocable, by the transferor at will, ad nutum, but
revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties
conveyed; and
3. That the transfer should be void of the transferor should
survive the transferee.
The phrase in the earlier-qouted Deed of Donation to become
effective upon the death of the DONOR admits of no other interpretation
than to mean that Matilde did not intend to transfer the ownership of
the six lots to petitioners mother during the formers lifetime. Further
the statement, anytime during the lifetime of the DONOR or anyone of
them who should survive, they could use, encumber or even dispose of any
or even all the parcels of land herein donated, means that Matilde
retained ownership of the lots and reserved in her the right to dispose
them. For the right to dispose of a thing without other limitations than
those established by law is an attribute of ownership. The phrase,
anyone of them who should survive is out of sync. For the Deed of
Donation clearly stated that it would take effect upon the death of the
donor, hence, said phrase could only have referred to the donor.
The donation being then mortis causa, the formalities of a will
should have been observed but they were not, as it was witnessed by
only two, not three or more witnesses following Article 805 of the Civil
Code. It is void and transmitted no right to petitioners mother. But
Succession Testamentary/Testate Succession (Characteristics and Formalities of Wills) De Guzman, Jiana J. SC.
10

even assuming arguendo that the formalities were observed, since it
was not probated, no right to the two lots was transmitted to Maria.
Matilde thus validly disposed the lot to Zenaido by her last will and
testament, subject to the qualification that her will must be probated.
With respect to the conveyed lot, the same had been validly sold by
Matilde to Zenaido.