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VOL. 64, JUNE 27, 1975 463

Contesting the Due Execution and Attestation of
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ANNOTATION

CONTESTING THE DUE EXECUTION AND

ATTESTATION OF WILLS
By
Atty. JAIME N. SALAZAR, JR.

§ 1. Probate Jurisdiction: General Rule; Exception, p.

463.
§ 2. Intervention in Probate Proceedings, p. 464.
§ 3. Formal Requisites in Executio n and Attestation of
Wills, p. 465.
§ 4. Purpose and Object of Formal Requirements, p.
466.
§ 5. Will to be in Writing, p. 466.
§ 6. Will in Language Known to Testator, p. 466.
§ 7. Will to be Subscribed by Testat or or Some Other
Person, p. 467.
§ 8. Will to be Attested by at Least Three Witnesses in
Presence of Testator and of One Another, p. 469.
§ 9. Testator and Subscribing Witnesses to Sign All
Pages of the Will in Presence of One Another, p.
470.
§ 10. All Pages of Will to be Consecutively Numbered, p.
471.
§ 11. Mandatory Contents of Attestation Clause, p. 471.
§ 12. Will to be Acknowledged Before Notary Public, p.
474.

______________

§ 1. Probate Jurisdiction: General Rule; Exception

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There is a well-recognized distinction between the probate

of a will and the validity of testamentary provisions. In the
former the court’s area of inquiry is limited to the extrinsic
validity of the will, that is, to the settlor’s testamentary
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capacity and the compliance with the formal requisites and

solemnities prescribed by law, whereas the latter relates to
the intrinsic validity of the provisions themselves, that is,
whether they comply with the substantive law on descent
and distribution. The practical significance of this
distinction is that when a petition for the probate of a will
is filed, an immediate inquiry into the intrinsic efficacy of
the provisions of the testament or the legality of any device
or legacy would be premature (Sumilang vs. Rarnagoza, 21
SCRA 1372; Nuguid vs. Nuguid, 17 SCRA 450), unless on
its face the provisions of the will are intrinsically void
(Balanay, Jr. vs. Martinez, L-39247, June 27, 1975) or
practical considerations demand that the intrinsic validity
of the will be passed upon even before it is probated, such
as when the probability exists that the case will come up
once again to the appellate court on the same issue of
intrinsic validity or nullity of the will which both parties
already raised in the case in question (Nuguid vs. Nuguid,
supra; Case vs. Jugo, 77 Phil. 517).

§ 2. Intervention in Probate Proceedings

In order that a person may be allowed to intervene in a

probate proceedings, he must show an interest in the estate
which must be protected, or in the will, or in the property
to be affected by it, either as an executor, heir or claimant
of the estate, like a creditor (Ngo The Hua vs. Chung Kiat
Hua, 9 SCRA 113; Teotico vs. Del Val, 13 SCRA 407; Asinas
vs. Court of First Instance, 51 Phil. 665; Reyes vs. Isip, 97
Phil. 11).
The reason for the rule excluding strangers from
contesting the will is not to preclude the court from
learning facts which would justify or necessitate a denial of
probate, but to prevent the court and litigants from being
molested by the intervention of persons with no interest in
the estate which would entitle them to be heard in relation
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thereto (Paras vs. Narciso, 35 Phil. 244). Thus, where the

oppositor does not itself claim to have an interest in the
succession of the deceased, but merely assails the probate
of the will on the grounds that the signature of the testator
was a forgery, the petition for probate was not properly
published, the designated heirs are not the next of kin of
the testator, and the testator does not own the property
disposed of in the will, the opposition to the probate of the
will cannot be and should not be entertained (Butiong vs.
Surigao Consolidated Mining Co., Inc., 24 SCRA 553).

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A probate court’s order striking out an opposition to the

probate of a will on the ground of the oppositor’s lack of
personality to intervene in the case, is final and, therefore,
appealable as far as the affected party is concerned
(Sumilang vs. Ramagoza, 21 SCRA 1373).
It is not, however, proper for a probate court to penalize
an oppositor on the basis of the “no-contest and forfeiture
clause” of a will, where the oppositor withdraws his
opposition after realizing his mistake in first opposing the
will which was made in good faith (Santos vs.
Buenaventura, 18 SCRA 47). Under a provision of a will
prohibiting opposition, if the legatee voluntarily desisted
from his opposition long before the probate of the will and
even before the presentation of the proponent’s evidence, it
is held that such opposition is not the one contemplated in
the will as to bar distribution of the legacy to the intended
legatee (Robles vs. De Santiago, L-10111, Aug. 31, 1960).

§ 3. Formal Requisites in Execution and Attestation

of Wills

Section 9, Rule 76 of the Revised Rules of Court provides

that a will shall be disallowed if the same was “not
executed and attested as required by law.” Under the new
Civil Code, the following are the formal legal requisites for
the due execution and attestation of wills, namely.

1. The will must be in writing and executed in a

language or dialect known to the testator;

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2. Except in the case of a holographic will, every 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 under his
direction;
3. The will must be attested and subscribed by three
or more credible witnesses in the presence of the
testator and of one another;
4. The testator or the person requested by him to
write his name and the attesting witnesses shall
also sign, as aforesaid, on each and every page of
the will, except the last, on the left-hand margin
thereof;
5. All the pages of the will shall be numbered
correlatively in letters placed on the upper part of
each page;
6. The attestation clause shall state the number of
pages used and the fact that the testator signed the
will and every

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page thereof, or caused some other person to write

his name, under his express direction, in the
presence of the attesting 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; and
7. The will must be acknowledged before a notary
public by the testator and the witnesses.
8. In the case of a holographic will, it must be entirely
written, dated, and signed by the hand of the
testator himself. It need not be witnessed. (See
articles 804-810, New Civil Code)

§ 4. Purpose and Object of Formal Requirements

The purpose and object of the solemnities surrounding the

execution of wills are “to close the door against bad faith
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and fraud, to avoid substitution of wills and testaments

and to guarantee their truth, and authenticity. Therefore,
the laws on this subject should be interpreted in such a
way as to attain these primordial ends.” Any other
interpretation which demands more requisites which are
useless and frustrative of the testator’s will must thus be
disregarded (In re Will of Tan Diuco, 45 Phil. 807; Cuevas
vs. Achacoso, 88 Phil. 734).

§ 5. Will to be in Writing

It is not of any moment that a will is written on poor kind

of stationery, or that it was not prepared by a notary
public, or that no copies thereof were made by the testator.
The law does not also require that the will should be
written in one continuous act (In re. Will of Pablo M.
Roxas, 48 O.G. No 6, 2177).

§ 6. Will in Language Known to Testator

It is not required that the will or the attestation clause

should state that the testator knows the language in which
it was written. Proof thereof may be established by
evidence aliunde (Lopez vs. Liboro, 46 O.G. 2113). For
example, where a will was written in the Spanish
language, the fact that the testatrix was a “mistiza
espanola”, was married to a Spaniard, and some of her
letters in her own handwriting are in Spanish,

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gives rise to the presumption that the testatrix knew the

language in which her alleged will was written in the
absence of evidence to the contrary. (Reyes vs. Zuñiga, 91
Phil. 127).
There is also a prima facie presumption that a testator
who was a resident in a particular locality knew the dialect
spoken in that place (Gonzales vs. Laurel, 46 Phil. 750;
Abangan vs. Abangan, 40 Phil. 477; In re: Estate of Piraso
52 Phil. 660). Proof of the dialect generally spoken in the
locality is, however, necessary. Thus, where the testator is
a Visayan, although residing in San Juan, Rizal at the time
of his death and the will written in Spanish was executed
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in Manila, no presumption can arise that the testator knew

the Spanish language in the absence of evidence that
Spanish is the language currently used either in San Juan,
Rizal or Manila (Testate Estate of Javellana, 106 Phil.
1078).

§ 7. Will to be Subscribed by Testator or Some Other

Person

Where a person could not affix his signature to his Last

Will and Testament, and somebody else has to do it for
him, it is essential that the will itself should state that the
testator by reason of his inability to sign his name has
requested another person, say, one of the attesting
witnesses, to do so. Otherwise, the will will be considered
fatally defective. To illustrate:
(a) Where it appears in a will that the testator has
stated that by reason of his inability to sign his name he
requested one of the three witnesses present to do so, and
that as a matter of fact, the said witness wrote the name
and surname of the testator who, stating that the
instrument executed by him contained his last will, put the
sign of the cross between his said name and surname, all of
which details are set forth in a note which the witnesses
forthwith subscribed in the presence of the testator and of
each other, said will may be probated (Abaya vs. Zalamero,
10 Phil. 357; De Gala vs. Gonzales, 53 Phil. 104; Dolar vs.
Diansin, 55 Phil. 477; Payad vs. Tolentino, 62 Phil. 848;
Neyra vs. Neyra, 76 Phil. 296).
(b) Where the attestation clause failed to state expressly
that the testator caused his attorney to write the testator’s
name under his express direction, such omission was
considered fatal even if the said attorney wrote the name of
the testator followed by the words “A ruego del testador”
and then the attorney’s name and a cross made by the
testator above his
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name. The Court held that “a cross cannot and does not
have the trustworthiness of a thumbmark.” (Garcia vs.
Lacuesta, 90 Phil. 490).

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The requirement regarding the signing of the will by the

testator is also satisfied where the testator’s thumbmark is
impressed thereon (Estate of Deceased Paulino Diancin, 55
Phil. 479). Expert testimony as to the identity of the
thumbmarks or fingerprints is admissible. But where the
thumb impressions are blurred and many of the
characteristic marks far from clear, thus rendering it
difficult to trace the features enumerated by the experts as
showing the identity or lack of identity of the impressions,
the probate court will justified in refusing to accept the
opinion of the alleged experts and in substituting its own
opinion that a distinct similarity in some respects between
the admittedly genuine thumbmark and the questioned
thumbmarks, is evident. (Ibid.) The alleged thumbmarks of
the testator will, on the other hand be disregarded where
an examination thereof shows that they are glaringly far
from being distinct and clear and they could not possibly be
identified as those of the testator or of any other person
(Junquera, vs. Borromeo, 19 SCRA 666).
The requirement of signing is also considered satisfied
where the testator placed his initials or all or part of his
name on the will (Yap Tua vs. Yap Ca Kuan, 27 Phil. 590).
Even a mere cross on top of the testator’s name will be
sufficient. However, it is the duty of the proponent to
satisfy the probate court that said cross was the customary
signature of the testator (Garcia vs. Lacuesta, 90 Phil. 490;
De Gala vs. Gonzales, 53 Phil. 104).
It has been held as not probable that the six signatures
of a sick man, 82 years old, with the entire left of his body
paralyzed, should be so firm and well written along a
practically straight line, without any visible sign of tremor,
and should appear to be better written than the signatures
of the attesting witnesses who were younger than the said
testator. (Junquera vs. Borromeo, 19 SCRA 657).
The opinion of a handwriting expert trying to prove the
forgery of the testatrix’s signature will be disregarded
where it is not only contradicted by another expert, but also
where there was a paucity of standards used by the former
(only 3 other signatures of the testatrix), considering the
advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue (Icasiano vs.
Icasiano, 11 SCRA 423).
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Where another person signs the will for the testator, it is

unimportant, with respect to the validity of the will,
whether the person who writes the name of the testator
signs also his own. The important thing is that it clearly
appears that the name of the testator was signed at his
express direction in the presence of three witnesses and
that they attested and subscribed it in her presence and in
the presence of each other. However, as a matter of
prudence, it is wise that the person requested to sign for
the testator should also sign his own name, as this would
give such intimation as would enable a person proving the
document to demonstrate more readily the execution
thereof by the principal (Caluya vs. Domingo, 27 Phil. 332).

§ 8. Will to be Attested by at Least Three Witnesses in

Presence of Testator and of One Another

While the rule is absolute that one who makes a will must
sign the same in the presence of the witnesses and that the
witnesses must sign in the presence of each other, as well
as in the presence of the one making the will, nonetheless,
the actual seeing of the signatures made is not necessary.
It is sufficient if the signatures are made where it is
possible for each of the necessary parties, if they desire to
look, to see the signatures being placed upon the will. For
instance, where the will was being signed on the lower floor
of the same room and the testator who was lying on the
upper floor could see the table where the witnesses were
affixing their signatures. (Yap Tua vs. Yap Ca Kuan, 27
Phil. 592).
The foregoing rule was not applied, however, or was
considered inapplicable, in a situation where one
subscribing witness was in an outer room while the
testator and the other witnesses were in an inner room
separated by a curtain which physically obstructed the
view of the witness who was outside. It was held that the
will was fatally defective in that the signing of the other
witnesses was completely, physically obstructed from the
view of the other witness (Nera vs. Rimandi, 18 Phil. 450).
It would seem that the rule in the Nera case is inordinately
strict and would be inequitable where the authenticity of
the signatures of the subscribing witnesses is not being
contested.
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The execution of a will, however, is supposed to be one act

and it cannot be legally effective if the various participants
signed on various days and in various combinations of
those present. Thus, it will not do for two of the witnesses
and the testator to sign the first six pages of the will on
January 1 and for the remaining pages to be signed by
them and the third attesting witness on another day
(Andalis vs. Pulguera, 49 Phil. 643).

§ 9. Testator and Subscribing Witnesses to Sign All

Pages of the Will in Presence of One Another

It is fatal to the validity of a will consisting of two pages

that the first page does not contain the signature or
thumbmark of the testator even if the second page bears
her thumbmark and both pages were signed by the three
testimonial witnesses. This defect is not cured by the fact
that there was no opposition filed to the probate of the will
(In re: Testate Estate of Tampoy, 107 Phil. 102).
The inadvertent failure of one witness to affix his
signature to one page of the original copy of the testament
due to the simultaneous lifting of two pages in the course of
the signing thereof, is not per se sufficient, however, to
justify the denial of probate. The law may not be literally
and strictly interpreted as to penalize the testator on
account of the inadvertence of a single witness over whose
conduct she had no control where the purpose of the law to
guarantee the identity of the testament and its component
pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the
full observance of the statutory requisites. Otherwise,
witnesses may be able to sabotage a will by bungling it or
the attestation clause (Icasiano vs. Icasiano, 11 SCRA 429).
It will be noted that in the Icasiano case a carbon copy of
the will was also presented containing the signatures of the
witnesses in all of the pages thereof.
The requirement that each page of the will, except the
last, be signed at the left-hand margin is not mandatory.
The testator as well as the subscribing witnesses may, if
they wish, sign at the right-hand margin or at the middle
of the pages (Nayve vs. Mojal, 47 Phil. 154).
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§ 10. All pages of Will to be Consecutively Numbered

Where a testament consists of only two pages, it is not a

fatal defect if the first pages is not numbered provided that
the omission is supplied by other forms of identification,
such as where the unnumbered page is clearly identified as
the first page by the internal sense of its contents
considered in relation to the contents of the second page
(Lopez vs. Liboro, 81 Phil. 432). In such cases, the purpose
of the law to guard against fraud and afford means of
preventing substitution or of detecting the loss of any page,
is sufficiently fulfilled. Paging the will with arabic
numerals, e.g., “1”, “2”, etc., rather than with letters, e.g.,
Page “One”, Page “Two”, etc., sufficiently conforms with the
spirit of the law (Unson vs. Abella, 43 Phil. 494; Nayve vs.
Mojal, 47 Phil. 155). The fact that the first page of the will
consisting of several pages is unnumbered is also no reason
for invalidating it where the authenticity of the
unnumbered page is not questioned (Martir vs. Martir, 70
Phil. 89).

§11. Mandatory Contents of Attestation Clause

Article 805 of the new Civil Code makes it obligatory that

the attestation clause 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.”
It is advisable that the foregoing requisites of the
attestation clause be adhered to literally to forestall the
hazards of the will being disallowed probate on account of
inadvertence or oversight in the recital of any of the facts
that should appear therein. The fact that there appears to
be a trend towards a liberal interpretation of the
attestation clause, a policy prescribed no less than by
Article 809 of the new Civil Code, supra, does not
constitute a prudent excuse for not complying literally with
those formal requisites. The behavior of the
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Supreme Court in this area, for instance, cannot be

predicted with accuracy as the following cases would show.
In the early case of Nayve vs. Mojal (47 Phil. 152), the
attestation clause failed to state that the testator and the
witnesses signed all the sheets of the will. The Court
upheld the will on the ground that the fact that the parties
did sign all the pages of the instrument can be proven by
an examination of the pages themselves which bear the
parties’ signatures.
In the subsequent case of Saño vs. Quintana (48 Phil.
506), the attestation clause did not state that the
subscribing witnesses signed on the left-hand margin of
each page in the presence of the testatrix. The Court
disallowed the will on the ground that compliance with the
requirement which the attestation clause in question failed
to state is imperative. This ruling was reaffirmed in
Gumban vs. Gorecho (50 Phil. 30) which involved an
attestation clause which did not state that the testator and
the attesting witnesses signed all the pages of the will. In
the Gumban case the ruling in the earlier Nayve case was
expressly modified.
In the following case of Rey vs. Cartagena (56 Phil. 282),
there appears to have been a reversion to the liberal
interpretation followed in the Nayve case. In Rey the
attestation clause simply stated “that we the witnesses also
signed in the presence of the testatrix and of each other,”
instead of saying, that the witnesses signed the will and
each and every page thereof. The Court allowed the will as
follows:

“x x x this portion of the attestation clause must be read in

connection with the portion preceding, which states that the
testatrix signed the will and on all the margins thereof in the
presence of the witnesses; especially, because the word also used
therein establishes a very close connection between said two
portions of the attestation clause. This word also should,
therefore, be given its full meaning which, in the instant case, is
that the witnesses signed the will in the same manner as the
testatrix did. The language of the whole attestation clause, taken
together, clearly shows that the witnesses signed the will and on

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all the margins thereof in the presence of the testatrix and of each
other.”

In Dichoso vs. De Gorostiza (52 Phil. 437), the attestation

clause merely stated that the testatrix “has published unto
us the foregoing will consisting of two pages as her Last
Will and Testament, and has signed the same,” instead of
stating that
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the testatrix signed each and every page of the will. The
Court upheld the will on the ground that the word “same”
essentially implies that the testatrix signed both pages of
the will. In Martir vs. Martir (70 Phil. 93), the attestation
clause recites as follows:

“This will is composed of four pages and had been made and
published by Hilarion Martir who was the testator therein named,
and that said will was signed at the foot and on the left margin of
each and every page thereof in the presence of the said
witnesses.”

It was contended that the said attestation does not recite

that the testator signed each and every page of the will in
the presence of the witnesses. It was held, however, that
“when the witnesses certified x x x that the same was
signed in their presence, they could not possibly refer to
another person than the testator himself.”
In Grey vs. Fabie (68 Phil. 128) the will was objected to
on the ground that, although the attestation clause stated
that “each of the pages of which the said will is composed”
was signed by the testatrix at the left margin and at the
foot of the fifth page, it did not state the signature was
made in the presence of the witnesses. It was held that the
said deficiency was cured by the phrase “as well as by each
of us in the presence of the testatrix.” The words “as well
as” was held to indicate that the testatrix signed also in the
presence of the witnesses, for the phrase “as well as” in the
attestation clause is equivalent to “also”.
In Leynez vs. Leynez (68 Phil. 745), the objection was
that the attestation clause did not state that the testator
and the witnesses signed each and every page of the will.
Every page of the will, however, contained the signature of

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the parties and so it was held that the will complied with
all the requisites for its due execution.
In Mendoza vs. Pilapil (72 Phil. 546) the attestation
clause did not state the number of pages of the will.
However, it was held that this deficiency was cured by the
will itself, which stated that it consisted of three pages and
in fact it had three pages.
In the later case of Gil vs. Murciano (88 Phil. 262), there
appears to have been a reversion towards a strict
interpretation of the attestation clause. In this case, the
clause did not state that the testator signed the will, it
declared only that it was signed by the’ witnesses. It was
held that the
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omission was a fatal defect “for the precise purpose of the

attestation clause is to certify that the testator signed the
will, this being the most essential element of the clause.
Without it there is no attestation at all. It is said that the
court may correct a mere clerical error. This is too much of
a clerical error for it affects the very essence of the clause.
Alleged errors may be overlooked or corrected only in
matters of form which do not affect the substance of the
statement.” The Court likewise rejected the argument that
the correction may be made by inference saying that for the
Court to supply a substantial omission by inferences, even
by internal circumstantial evidence would be against the
evident policy of the law. There was dissent, however, from
Justice Tuason, to the effect that the said flaw was a mere
clerical error that could be overlooked.

§ 12. Will to be Acknowledged Before Notary Public

The requirement that every will, other than a holographic

will, must be acknowledged before a notary public by the
testator and the attesting witnesses is indispensable to its
validity. Where the testamentary document shows on its
face that it was acknowledged before a notary public by the
testator only and not by the instrumental witnesses, the
will cannot pass probate (Garcia vs. Gatchalian, 21 SCRA
1056).

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The purpose of the acknowledgment is to minimize fraud

and the exertion of undue pressure or influence upon the
testator. This purpose can be attained even if the
acknowledgment of the will takes place at some other time
after the signing of the will. Unlike the Code of 1889 (Art.
699), the new Civil Code does not require that the signing
of the testator and the attesting witnesses, on the one
hand, and the notary, on the other, should be accomplished
in one single act. The subsequent signing and sealing by
the notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence,
their separate execution cannot be said to violate the rule
that testaments should be completed without interruption.
The validity of the will is, therefore, not affected by the fact
that it was signed by the testator and the witnesses in the
hospital and then it was taken by the notary to his office
where he affixed his signature and seal without the
presence of the testator and the witnesses. (Javellana vs.
Ledesma, 97 Phil. 262).

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