FORMALITY OF WILLS AND WITNESSES TO WILLS (ARTS. 804-824)

5. ATTESTATION Clause (AC) PURPOSE

it is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved (Cañeda v. CA)

5. ATTESTATION Clause (AC) NOTE

it must be signed by the witnesses, not by the testator

NOTARIAL OR ORDINARY WILL (CIVIL CODE, ART. 805) 5. ATTESTATION Clause (AC)

memorandum or record of facts wherein the witnesses certify that the will has been executed before them, and that it has been executed in accordance with the formalities prescribed by law

b. Signature by another Requisites - NOTE

neither the notary nor any of the attesting witnesses can sign in behalf of the testator the testator need not be physically incapacitated, to ask a third person to sign the will for him, provided, that the fact of the signing by the third person in his presence and under his express direction, shall be stated in the attestation clause (Garcia v. Lacuesta)

4. PAGE Numberings a. Mandatory part

pagination by means of a conventional system

4. PAGE Numberings b. Directory part

pagination which shall be numbered correlatively in letters placed on the upper part of each page thus, the pages may be numbered by mere. alphabetical letters, or by Arabic Numerals, or by any form of identification if the paging be placed in the lower part, the testament is not void for this sole reason this is not necessary when the will is written on one sheet only (Abangan v. Abangan) substantial compliance with the statutory requirement is sufficient

End of Will

refers to the logical end, which is the point where the testamentary dispositions terminate when Article 805 of the Civil Code requires the testator to subscribe at the end of the will, it necessarily refers to the logical end thereof, which is where the last testamentary disposition ends in this case, the last page of the will does not contain any testamentary disposition; it is but a mere continuation of the Acknowledgment (Mitra v. Sablan-Guevarra)

OBJECTS OF FORMALITIES OF WILLS: (CAG) NOTE

so when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of testator's will, must be disregarded (Herreros v. Gil)

COMMON FORMALITIES BETWEEN HOLOGRAPHIC AND NOTARIAL WILLS 2. executed in a language or dialect known to the testator (CIVIL CODE, Art. 804)

testator's knowledge or understanding of the language/dialect need not be expressly stated either in the body of the will or in the attestation clause

2. Holograph or Holographic Will

that which is entirely written, dated, and signed by the hand of the testator himself (CIVIL CODE, Art 810)

KINDS OF WILLS 1. Ordinary or Notarial Will

that which requires, among other things, an attestation clause, and an acknowledgment before a notary public

Acknowledgment

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 it involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed (Lee v. Tambago)

5. ATTESTATION Clause (AC) Contents (CIVIL CODE, Art. 805): (SAN) a. the NUMBER of pages used - PURPOSE OF THE RULE

to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages (Azuela v. CA)

KINDS OF WILLS

1. Ordinary or Notarial Will

NOTARIAL OR ORDINARY WILL (CIVIL CODE, ART. 805): (SAM-PAA)

1. SUBSCRIPTION 2. ATTESTATION and Subscription 3. MARGINAL Signatures 4. PAGE Numberings 5. ATTESTATION Clause 6. Notarial ACKNOWLEDGMENT

OBJECTS OF FORMALITIES OF WILLS: (CAG)

1. to CLOSE the door against bad faith and fraud; 2. to AVOID substitution of wills and testaments; and 3. to GUARANTEE their truth and authenticity

COMMON FORMALITIES BETWEEN HOLOGRAPHIC AND NOTARIAL WILLS

1. will must be in writing (CIVIL CODE, Art. 804) 2. executed in a language or dialect known to the testator (CIVIL CODE, Art. 804)

COMMON FORMALITIES BETWEEN HOLOGRAPHIC AND NOTARIAL WILLS NOTE

Donations mortis causa partake of the nature of testamentary provisions (CIVIL CODE, Art. 728) and as such, said deeds must be executed.in accordance with the requisites on solemnities of wills and testaments under Arts. 805 and 806 (Maglasang v. Heirs of Cabatingan)

Formal Requirements: (W2-SAMPAL) NOTE

Nuncaptive wills - wills orally made by the testator in contemplation of death, and before competent witness our new Civil Code does not recognize the validity of nuncaptive wills. Art. 804 does not recognize oral wills

5. ATTESTATION Clause (AC) Contents (CIVIL CODE, Art. 805): (SAN) a. the NUMBER of pages used - NOTE

when the attestation clause erroneously states the number of pages of the will, the Court held that the error was not material since the pagination in letters was a sufficient safeguard of the will's integrity (Celada v. Avena)

NOTARIAL OR ORDINARY WILL (CIVIL CODE, ART. 805) 6. Notarial ACKNOWLEDGMENT - NOTE

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 the notary public (Azuela v. CA) a will which contains a mere jurat and does not contain an acknowledgment is fatally defective because Art. 806 requires that the will be "acknowledged" and not merely subscribed and sworn to (Azuela v. CA) the notary public must be duly commissioned for the locality where the acknowledgment is made otherwise, the notarization - and the will will be void an acknowledgement taken outside the territorial limits of the officer's jurisdiction is void as if the person taking it were wholly without official character (Guerrero v. Bihis)

a. Subscription by Testator i. Manner of Signing

a sufficient signature to a will depends largely on the custom of the time and place, the habit of the individual, and the circumstances of each particular case, but it should be manifest that whatever is used is actually intended as a signature NOTE: a complete signature is not essential to the validity of a will a will is not invalidated by the misspelling of the testator's name in the signature, where it is clear that the testator intended to execute the instrument by the signature affixed

Purposes of Requiring Witness to Attest and to Subscribe to a Will: (PIPA)

a. PROTECTION of the testator from fraud and deception; b. IDENTIFICATION of the instrument; c. to render available PROOF during probate proceedings that the will has been executed in accordance with the requirements prescribed by law and that the instrument offered for probate is authentic; and d. the ASCERTAINMENT of the testamentary capacity of the testator

1. SUBSCRIPTION Forms

a. Subscription by Testator i. Manner of Signing ii. Signature by Mark

a. Subscription by Testator ii. Signature by Mark

any mark or combination of marks placed on a will by the testator is a sufficient compliance, even if at the time of placing it, the testator knew how to write and is able to do so if the signature is only a mere cross, it is acceptable as a valid signature, provided it can be properly established that it is the testator's usual signature or at least one of the ways by which he had signed his name before (Leaño v. Leaño) the requirement of the statute that the will shall be "signed" is satisfied not only the customary written signature but also by the testator's or testatrix' thumbmark expert testimony as to the identity of thumbmarks or fingerprints is of course admissible however, where thumb impressions are blurred and many of the characteristic marks far from clear, thus rendering it difficult to trace the features enumerated by experts as showing the identity or lack of identity of the impressions, the court is justified in refusing to accept the opinions of 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 (Dolor v. Diancin) if writing a mark is a sufficient indication of an intention to make a will then writing a portion of all of her name is accepted as a clear indication of her intention in this case the decedent used her first name "Tomasa" (Yap Tua v. Yap CaKuan)

Order of Signing

as long as the signing is done within the presence of one another, it really does not matter much whether the witnesses signed ahead of or after the testator as long as the signing is sufficiently contemporaneous

Subscription

consists in the manual act of the instrumental witnesses in affixing their signatures to the instrument for the purpose of identification

NOTARIAL OR ORDINARY WILL (CIVIL CODE, ART. 805) 6. Notarial ACKNOWLEDGMENT

done before a notary public by the testator and the instrumental witnesses (CIVIL CODE, Art. 806)

NOTARIAL OR ORDINARY WILL (CIVIL CODE, ART. 805): (SAM-PAA) 3. MARGINAL Signatures - GENERAL RULE

each and every page of the will, except the last, shall be signed on the left margin: a. by the testator or the person requested by him to write his name in the presence of the witnesses; and b. by the instrumental witnesses in the presence of the testator and of one another (CIVIL CODE, Art. 805)

Place of signature (either by the testator or by another)

end of the will, otherwise, void

b. Signature by another Requisites: (TPEAW)

i. it is the testator's name that must have been written by the THIRD person; ii. the testator's name must have been written in his PRESENCE; iii. the third person must have affixed the testator's name at his EXPRESS direction; iv. this fact should be stated in the ATTESTATION clause; and v. it should take place in the presence of the instrumental WITNESSES

5. ATTESTATION Clause (AC) Contents (CIVIL CODE, Art. 805) - NOTE

i. the attestation clause is the affair of the witnesses; therefore, it need not be signed by the testator (Fernandez v. Vergel de Dios) ii. the attestation clause need not be written in a language or dialect known to the testator nor to the attesting witnesses since it does not form part of the testamentary disposition NOTE: if the attestation clause is in a language not known to the witnesses, it shall be interpreted to them (CIVIL CODE, Art. 805). iii. the witnesses must sign at the bottom of the attestation clause NOTE: if the page containing the attestation clause is signed by the witnesses on the left-hand margin but their signatures do not appear at the bottom of the attestation clause, the will is fatally defective because the same cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause (Azuela v. CA) 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 iv. the fact that the attestation clause was written on a separate page has been held to be a matter of "minor importance" and apparently will not affect the validity of the will (Villaflor v. Tobias) v. an attestation clause is mandatory for attested wills it is separate and distinct from the acknowledgment clause (certification of acknowledgment). These two cannot be merged (Echavez v. Dozen Construction) vi. absence of this clause will render the will a nullity

End of Will Example

if a will starts on the first page, continues on the third page, but is concluded on the second page, the latter is the logical end

End of Will NOTE

if the testator's first name appears, without the surname, the will is valid (Yap Tua v. Yap Ca Kuan) the will remains valid even though the testator's name is misspelled, abbreviated, or is indicated only by nickname, or by "Father" or "Mother," or in an assumed name, provided the testator intended the same to be his signature

Effects of Defects or Imperfections in the Attestation Clause EXCEPTION: Doctrine of Liberal Interpretation

omissions or non-compliance with statutory provisions as to form would not be fatal provided that it can be established or deduced from an examination of the will itself that all of the statutory requirements have been complied with

Requisites to avail of the Doctrine of Liberal Interpretation

a. defects and imperfections must be in the form of the attestation or in the language used therein; b. there must be no bad faith, forgery, fraud, or undue and improper pressure and influence, in the execution of the attestation clause; and c. it must be proved that the will was in fact executed and attested in substantial compliance with all the requirements of Art. 805 (CIVIL CODE, Art. 809). it may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed however, those omissions which cannot be supplied, except by evidence aliunde, would result in the invalidation of the attestation clause and ultimately, of the will itself (Cañeda v. CA) the rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: a. whether all the pages are consecutively numbered; b. whether the signatures appear in each and every page; c. whether the subscribing witnesses are three; and d. whether the will was notarized (Cañeda v. CA) all these are facts that the will 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 (Cañeda v. CA)

Formal Requirements: (W2-SAMPAL)

a. in WRITING; b. executed in a LANGUAGE or dialect known to the testator; c. SUBSCRIPTION - subscribed at the end thereof by the testator himself or by testator's name written by some other person in his presence and by his express direction; d. attested and subscribed by 3 or more credible WITNESSES in the presence of the testator and of one another; e. MARGINAL signature - All of the pages are signed, except the last, on the left margin by: i. the testator or the person requested by him to write his name, in the presence of the witnesses; and ii. the instrumental witness, in the presence of the testator and of one another; f. PAGE numbering - all the pages are numbered correlatively in letters placed on the upper part of each page; g. ATTESTATION clause executed by the witnesses; and h. ACKNOWLEDGMENT - properly acknowledged before a notary public by the testator and the said witnesses (CIVIL CODE, Arts. 804-806)

5. ATTESTATION Clause (AC) Contents (CIVIL CODE, Art. 805): (SAN)

a. the NUMBER of pages used b. 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 c. the fact that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one ANOTHER

3. MARGINAL Signatures EXCEPTIONS

a. the last page need not be signed on the left margin because, being the page where the end of the will is, it contains the testator's signature; b. when the will consists of only one page; and c. when the will consists of two pages, the first page contains all the testamentary dispositions and is signed at the bottom by the testator and the witnesses, and the second contains only the attestation clause signed at the bottom by the witnesses as the attestation clause appertains only to the witnesses and not to the testator, it need be signed only by them (Abangan v. Abangan) failure to have the marginal signatures of the testator and of the witnesses, when needed, is a fatal defect that constitutes an obstacle of its probate (In re: Will of Prieto) the inadvertent failure of one witness to affix his signature on one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate (Icasiano v. Icasiano)

4. PAGE Numberings PURPOSES: (FIDS)

a. to guard against FRAUD; b. to prevent any INCREASE or decrease in the pages; c. to afford means of DETECTING the loss of any of its pages; and d. to forestall any attempt to SUPPRESS or substitute any of the pages

1. SUBSCRIPTION Purposes

a. to identify the testator, and b. to authenticate the document

The acknowledgment in a notarial will has a two-fold purpose:

a. to safeguard the testators wishes long after his demise; and b. to assure that his estate is administered in the manner that he intends it to be done (Lee v. Tambago)

End of Will Purposes

a. to show that the testamentary purpose therein expressed is completed; b. to prevent any opportunity for fraud or interpolations between the written matter and signature; and c. the position of the signature is an internal evidence of finality or completion of intent

Attestation v. Subscription As to What Performs the Act

a: an act of the senses s: an act of the hand

Attestation v. Subscription As to Where in the Will Should It Be Place

a: attestation clause may be placed at the beginning of the will placing it at the end is only for convenience s: subscription must always be at the logical end of the will

Attestation v. Subscription As to Nature of the Act

a: mental act s: mechanical act

Attestation v. Subscription As to Purpose

a: purpose is to render available proof during probate of will, not only of the authenticity of the will, but also of its due execution s: purpose is for identification

NOTARIAL OR ORDINARY WILL (CIVIL CODE, ART. 805) 4. PAGE Numberings

all the pages of the will shall be numbered. correlatively in letters placed on the upper part of each page (CIVIL CODE, Art. 805)

COMMON FORMALITIES BETWEEN HOLOGRAPHIC AND NOTARIAL WILLS 1. will must be in writing (CIVIL CODE, Art. 804)

if the will is ordinary, it does not matter on what material it is written it may be written by hand or typewritten, or printed from plates or type Article 810 provides that in the case of holographic wills, it must be written entirely in the handwriting of the testator himself it is only in the case of ordinary wills that whoever performs the mechanical act of writing or drafting the will becomes a matter of indifference (Castañeda v. Alemany)

NOTARIAL OR ORDINARY WILL (CIVIL CODE, ART. 805) 2. Attestation and Subscription Attestation

the act of three (3) or more credible witnesses of witnessing the execution of the will in the presence of the testator and of one another in order to see and take note mentally that such will has been executed in accordance with the requirements prescribed by law strictly speaking, it is the act of the witnesses and not that of the testator

"In the presence"

the execution of a will cannot be legally effective if the various participants signed on various days or occasions and in various combinations of those present (Andalis v. Pulgueras) while it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three, attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witnesses affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other the execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity (Cañeda v. Court of Appeals) the phrase does not necessarily require actually seeing, but the possibility of seeing without any physical obstruction when a person merely has his back turned, the signing is done in his presence since he could have cast his eyes in the proper direction (Jaboneta v. Gustilo) the attaching of signatures was not done "in the presence of the witness if his line of vision to the testator and the other subscribing witnesses was impeded by a curtain separating them at the moment of inscription of each signature (Nera v. Rimando) in case the testator is blind, the presence, may be complied with if the signing of action is within the range of the other senses like hearing, touch, etc., of the testator

5. ATTESTATION Clause (AC) Contents (CIVIL CODE, Art. 805): (SAN) a. the NUMBER of pages used - GENERAL RULE:

the failure to state the number of pages on which the will was written in the attestation clause is a fatal flaw (Azuela v. CA)

Page of the Will

the law refers expressly to "page" and not to sheet or leaf or folio a sheet has two pages, the front and revers if both pages of the sheet or leaf are used, it is therefore necessary that both front and reverse sides should bear the signatures of the testator and of each of the witnesses

4. PAGE Numberings NOTE

the law says "page" not sheet (a sheet has two pages, the front and the reverse sides if both are used, both must be paged)

NOTARIAL OR ORDINARY WILL (CIVIL CODE, ART. 805): (SAM-PAA) 1. SUBSCRIPTION

the manual act by the testator and his/ instrumental witnesses of affixing their signature to the instrument

3. MARGINAL Signatures b. Directory part

the place of signing, i.e. the left margin; can also be on the right margin, provided, that the will contained the necessary signatures on each page, whereby each page of the will was authenticated and safeguarded against any possible alteration (Avera v. Garcia)

Test of Presence

the true test of vision is not whether the testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of the subscription (Jaboneta v. Gustilo et.al.) it 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 (Neyra v. Neyra)

Number of Witnesses

the will must be attested and subscribed by 3 or more credible witnesses (CIVIL CODE, Art. 805) this requirement is mandatory and if less than 3 witnesses attested and subscribed thereto, the will is void (Alaud v. Alaud) if the attestation clause does not indicate the number of witnesses, but the will clearly shows four signatures: that of the testator and of the 3 other persons, it is reasonable to conclude that there are 3 witnesses to the will (Testate Estate of the Late Alipio Abada v. Abaja) if the third witness is the notary public himself before whom the will was supposed to have been acknowledged, the requirements of Articles 805 and 806 of the Civil Code are not satisfied the notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will (Cruz v. Villasor)

Effects of Defects or Imperfections in the Attestation Clause GENERAL RULE

the will shall be invalidated if the defect of the attestation clause is substantial in character the defect is substantial when it: a. goes into the very essence of the clause itself; or b. consists in the omission of one, some, or all of the essential facts which must be stated in such clause, and such omission cannot be cured by an examination of the will itself

3. MARGINAL Signatures a. Mandatory part

there is a mandatory and directory part to this requirement the signing on every page by the testator or the person requested by him to write his name in the witnesses presence and the signing on every page by the instrumental witnesses in the presence of the testator and of one another

5. ATTESTATION Clause (AC) Contents (CIVIL CODE, Art. 805): (SAN) a. the NUMBER of pages used - EXCEPTION

there is substantial compliance with the requirement if the will states elsewhere in it, how many pages it is comprised of, such as when the acknowledgement itself states the same (Mitra v. Sablan-Guevarra, citing Taboada v. Rosal) there is no substantial compliance with Art. 809 if there is a discrepancy between the number of pages stated in the acknowledgment and the actual number of pages of the will as it cannot be explained by mere examination of the will itself but through the presentation of evidence aliunde (Lopez v. Lopez) but if the number of pages is not stated in any part of the will, and the will does not contain any notarial acknowledgment wherein the number of pages of the will should be stated, the doctrine set forth in Taboada v. Rosal is not applicable (Azuela v. CA)

3. MARGINAL Signatures NOTE

this case must be applied only to cases with similar facts in Icasiano v. Icasiano, the failure of the witness to sign one page was entirely through oversight, as shown by his own testimony as well as by the original duplicate copy of the will, which was submitted to the court and which bore a complete set of signatures in every page (Icasiano v. Icasiano)