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2.
Lower Courts Stand: Both the testatrix and the witnesses should sign at the end.
Pet. Stand: Art 805 does not make it a condition precedent or a matter of absolu
te necessity forwitnesses to sign specifically at the end of the will after the
signature of the testatrix.3.
Note that the law uses the terms attested and subscribed differently:
Attestation
witnessing the execution of the will
Subscription
is the signing of the witnesses names upon the same paper for the purpose of ide
ntification of such paper as the will which was executed by the testator
IN RE WILL OF ANTONIO VERGEL DE DIOS, RAMON J. FERNANDEZ vs. HERMELO VERGEL, et
al. No. L-2115, February 25, 1924
Facts:
The question in this case is as to the validity of the will of the late Antonio
Vergel de Dios, which was propounded by Ramon Fernandez for probate, and contes
ted by Fernando Vergel de Dios and Francisco, Ricardo and VirgilioRustia, allegi
ng that the attestation clause was fatally defective since the witnesses did not
sign the attestation clause in the presence of the testator and of one another.
Issue:
Whether or not the signatures of the testator and the paging of the will are al
so necessary in the attestation clause
Ruling:
The attestation clause shall state the number of sheets or pages used, upon whi
ch 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 three witnesses, and the latter witnessed and sign
ed the will and all pages thereof in the presence of the testator and of each ot
her. This refers to the contents of the text of the attestation, not the require
ment or signatures thereof outside of its text. It does not require that the att
estation clause be signed by the testator or that the page or sheet containing i
t be numbered. In the case at bar the attestation clause in question states that
the requirements prescribed for the will were complied with, and this is enough
for it, as such attestation clause, to be held as meeting the requirements pres
cribed by the law for it. The fact that in said clause the signature of the test
ator does not appear does not affect its validity, for, as above-stated, the law
does not require that it be signed by the testator. Furthermore, although the n
umbering of the sheet containing the attestation clause does not appear in the u
pper part thereof, yet if that numbering is found in its text, as when it is sai
d therein that
the will consists of three sheets actually uses, correlatively numbered, besides
this one, that is to say, the sheet containing the attestation clause, the requ
irement prescribed by the law is substantially complied with, for if the will co
nsists of three sheets besides the one containing the attestation clause, it is
evident that the latter is the fourth page is to say, that the document consists
of four sheets.
Ortega v. Valmonte
478 SCRA 247
FACTS:
Two years after the arrival of Placido from the United States and at the age of
80 he wed Josefina who was then 28 years old. But in a little more than two yea
rs of wedded bliss, Placido died. Placido executed a notarial last will and test
ament written in English and consisting of 2 pages, and dated 15 June 1983but ack
nowledged only on 9 August 1983.
The allowance to probate of this will was opposed by Leticia, Placidos sister. Ac
cording to the notary public who notarized the testators will, after the te
stator instructed him on the terms and dispositions he wanted on the will, the n
otary public told them to come back on 15 August 1983 to give him time to prepa
re. The testator and his witnesses returned on the appointed date but the notary
public was out of town so they were instructed by his wife to come back on 9 Au
gust 1983. The formal execution was actually on 9 August 1983. He reasoned he no
longer changed the typewritten date of 15 June 1983 because he did not like the
document to appear dirty. Petiti
oners argument:
1. At the time of the execution of the notarial will Placido was already 83 yea
rs old and was no longer of sound mind. 2. Josefina conspired with the notary p
ublic and the 3 attesting witnesses in deceiving Placido to sign it. Deception i
s allegedly reflected in the varying dates of the execution and the attestation
of the will.
ISSUE:
1. W/N Placido has testamentary capacity at the time he allegedly executed the
will. 2. W/N the signature of Placido in the will was procured by fraud or trick
ery.
HELD:
1. YES. Despite his advanced age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even their loca
tion. As regards the proper objects of his bounty, it was sufficient that he ide
ntified his wife as sole beneficiary. The omission of some relatives from the w
ill did not affect its formal
validity. There being no showing of fraud in its execution, intent in its dispo
sition becomes irrelevant. 2. NO. Fraud is a trick, secret devise, false statem
ent, or pretense, by which the subject of it is cheated. It may be of such chara
cter that the testator is misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some extrinsic fact, in consequ
ence of the deception regarding which the testator is led to make a certain will
which, but for fraud, he would not have made. The party challenging the will be
ars the burden of proving the existence of fraud at the time of its execution. T
he burden to show otherwise shifts to the proponent of the will only upon a show
ing of credible evidence of fraud. Omission of some relatives does not affect th
e due execution of a will. Moreover, the conflict between the dates appearing on
the will does not invalidate the document,
because the law does not even require that a notarial will be executed and
acknowledged on the same occasion. The variance in the dates of the will as to i
ts supposed execution and attestation was satisfactorily and persuasively explai
ned by the notary public and instrumental witnesses.