[Forms of Wills]

Case Citation: G.R. No. 122880

Date:  April 12, 2006

Petitioners: FELIX AZUELA

Respondents: COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.

CASTILLO

Doctrine: A will whose attestation clause does not contain the number of pages on which the will
is written is fatally defective. A will whose attestation clause is not signed by the
instrumental witnesses is fatally defective. And perhaps most importantly, a will which
does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of
these defects is sufficient to deny probate. A notarial will with all three defects is just
aching for judicial rejection.

Subject Notarial will of Eugenia E. Igsolo

matter of
controversy:

Antecedent  The petition filed by petitioner Felix Azuela sought to admit to probate the
Facts: notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981.
Petitioner is the son of the cousin of the decedent.
 The will, consisting of two (2) pages and written in the vernacular Pilipino. (see
note “A”)
 The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation
clause.
 The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
decedent.

 Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all centering on
petitioner’s right to occupy the properties of the decedent.

Respondent’s Oppositor Geralda Castillo also argued that the will was not executed and attested to
Contention: in accordance with law. She pointed out that decedent’s signature did not appear on
the second page of the will, and the will was not properly acknowledged.

Petitioner’s
Contention:

RTC Ruling:  After due trial, the RTC admitted the will to probate.
 The RTC favorably took into account the testimony of the three (3) witnesses
to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also
called to fore "the modern tendency in respect to the formalities in the
execution of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes.

The liberalization of the interpretation of the law on the formal requirements of a will
with the end in view of giving the testator more freedom in expressing his last wishes,
this Court is persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.
 1. On the issue of lack of acknowledgement, this Court has noted that at the end
of the will after the signature of the testatrix, the statement is made under the
sub-title, "Patunay Ng Mga Saksi" (see note “B”)

 The aforequoted declaration ("Patunay Ng Mga Saksi") comprises the

attestation clause and the acknowledgement and is considered by this
Court as a substantial compliance with the requirements of the law.

2. On the oppositor’s contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of
the will containing the attestation clause and acknowledgment, instead of at
the bottom thereof, substantially satisfies the purpose of identification and
attestation of the will.

3. With regard to the oppositor’s argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the
attestation did not state the number of pages thereof, it is worthy to note that
the will is composed of only two pages.

 The first page contains the entire text of the testamentary dispositions,
and the second page contains the last portion of the attestation clause
and acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. 

4. As regards the oppositor’s assertion that the signature of the testatrix on the
will is a forgery, the testimonies of the three subscribing witnesses to the will
are convincing enough to establish the genuineness of the signature of the
testatrix and the due execution of the will.

CA Ruling: the Court of Appeals reversed the trial court and ordered the dismissal of the petition
for probate.

The Court of Appeals noted that the attestation clause failed to state the number of
pages used in the will, thus rendering the will void and undeserving of probate.

Issue: WON the will is void. YES

SC Ruling: Petitioner argues that the requirement under Article 805 of the Civil Code that "the
number of pages used in a notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."

Art. 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.

Art. 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.

I. the attestation clause fails to state the number of pages of

the will.

 There was an incomplete attempt to comply with this requisite, a space

having been allotted for the insertion of the number of pages in the
attestation clause. Yet the blank was never filled in; hence, the requisite
was left uncomplied with.

Uy Coque v. Navas L. Sioca and In re: Will of Andrada.Case

Uy Coque

 "The purpose of requiring the number of sheets to be stated in the

attestation clause is obvious; the document might easily be so prepared
that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a
statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the
top of the following sheets or pages. 

In re Will of Andrada 

 It is concerned a will the attestation clause of which failed to state the

number of sheets or pages used. 
 It was further observed that "it cannot be denied that the x x x
requirement affords additional security against the danger that the will
may be tampered with; and as the Legislature has seen fit to prescribe
this requirement, it must be considered material."

 Against these cited cases, petitioner cites Singson v.

Florentino and Taboada v. Hon. Rosal, wherein the Court allowed
probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will.
 However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of
"Manuel Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of pages used in
the will, however, the same was found in the last part of the body of the
Will.

In the appeal at bench, the number of pages used in the will is not stated in any part
of the Will. The will does not even contain any notarial acknowledgment wherein the
number of pages of the will should be stated.
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in
1950, at a time when the statutory provision governing the formal requirement of
wills was Section 618 of the Code of Civil Procedure. However, the enactment of the
Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills,
at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases.

 A cautionary note was struck though by Justice J.B.L. Reyes in the case of
Caneda vs CA, as to how Article 809 should be applied:

x x x The rule must be limited to disregarding those defects that can

be supplied by an examination of the will itself: whether all the pages
are consecutively numbered; whether the signatures appear in each
and every page; whether the subscribing witnesses are three or the
will was notarized. All these are facts that the will itself can reveal,
and defects or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of pages,
and whether all persons required to sign did so in the
presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the
probate proceedings.  (Emphasis supplied.)

 The Court of Appeals did cite these comments by Justice J.B.L. Reyes in
its assailed decision, considering that the failure to state the number of
pages of the will in the attestation clause is one of the defects which
cannot be simply disregarded.

 The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the
law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the pages.

 The failure to state the number of pages equates with the absence of an
averment on the part of the instrumental witnesses as to how many pages
consisted the will, the execution of which they had ostensibly just witnessed
and subscribed to.

II. the attestation clause was not signed by the instrumental

witnesses.

 While the signatures of the instrumental witnesses appear on the left-hand

margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public.
 Cagro v. Cagro is material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on
the left-hand margin."

We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the will"
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 thereof negatives their
participation.
The said signatures are in compliance with the legal mandate that the will be signed
on the left-hand margin of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to
add such clause to a will on a subsequent occasion and in the absence of the testator
and any or all of the witnesses.

The attestation clause is separate and apart from the disposition of the will. 

 Article 805 particularly segregates the requirement that the

instrumental witnesses sign each page of the will, from the requisite
that the will be "attested and subscribed by [the instrumental
witnesses]."
 The respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. 
 An unsigned attestation clause results in an unattested will.
 Thus, the subject will cannot be considered to have been validly
attested to by the instrumental witnesses, as they failed to sign the
attestation clause.

III. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the
witnesses" has also not been complied with.

 The importance of this requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in this case
is equally as critical as the other cited flaws in compliance with Article 805, and
should be treated as of equivalent import.
 An acknowledgment is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. 41 It
involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed.
 A jurat is that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow that the
document was subscribed and sworn before the notary public, while in this
case, the notary public averred that he himself "signed and notarized" the
document.
 Yet even if we consider what was affixed by the notary public as a jurat, the
will would nonetheless remain invalid, as the express requirement of Article
806 is that the will be "acknowledged", and not merely subscribed and sworn
to. 
 The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless act. 43 The
acknowledgment coerces the testator and the instrumental witnesses to
declare before an officer of the law that they had executed and subscribed to
the will as their own free act or deed. 

It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary
 public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.

Notes:

A. HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na
gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin
at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at

patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix

Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero
28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan
sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot
42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at
kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at

kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

B. PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa
kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO

Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8