Civil Law Review I

SUCCESSION health and was not unduly influenced in any way in the
execution of his will.
1. Caneda v CA - Daba
Probate court then rendered a decision declaring the will
Caneda v. CA in question as the last will and testament of the late
222 SCRA 781 Mateo Caballero.

FACTS: On December 5, 1978, Mateo Caballero, a CA affirmed the probate court’s decision stating that it
widower without any children and already in the twilight substantially complies with Article 805. Hence this
years of his life, executed a last will and testament at his appeal.
residence before 3 witnesses.
ISSUE: W/N the attestation clause in the will of the
He was assisted by his lawyer, Atty. Emilio Lumontad. testator is fatally defective or can be cured under the art.
In the will, it was declared that the testator was leaving 809.
by way of legacies and devises his real and personal
properties to several people all of whom do not appear HELD: No. It does not comply with the provisions of the
to be related to the testator. law.

4 months later, Mateo Caballero himself filed a case Ordinary or attested wills are governed by Arts. 804 to
seeking the probate of his last will and testament, but 809. The will must be acknowledged before a notary
numerous postponements pushed back the initial public by the testator and the attesting witnesses. The
hearing of the probate court regarding the will. attestation clause need not be written in a language
known to the testator or even to the attesting witnesses.
On May 29, 1980, the testator passed away before his It is a separate memorandum or record of the facts
petition could finally be heard by the probate court. surrounding the conduct of execution and once signed
by the witnesses it gives affirmation to the fact that
Thereafter one of the legatees, Benoni Cabrera, sought compliance with the essential formalities required by law
his appointment as special administrator of the testator’s has been observed.
estate.
The attestation clause, therefore, provides strong legal
Thereafter, the petitioners, claiming to be nephews and guaranties for the due execution of a will and to insure
nieces of the testator, instituted a second petition for the authenticity thereof.
intestate proceedings. They also opposed the probate of
the testator’s will and the appointment of a special It is contended by petitioners that the attestation clause
administrator for his estate. in the will failed to specifically state the fact that the
attesting witnesses witnessed the testator sign the will
Benoni Cabrera died and was replaced by William and all its pages in their presence and that they, the
Cabrera as special administrator and gave an order that witnesses, likewise signed the will and every page
the testate proceedings for the probate of the will had to thereof in the presence of the testator and of each other.
be heard and resolved first. And the Court agrees.

In the course of the proceedings, petitioners opposed to The attestation clause does not expressly state therein
the allowance of the testator’s will on the ground that on the circumstance that said witnesses subscribed their
the alleged date of its execution, the testator was respective signatures to the will in the presence of the
already in poor state of health such that he could not testator and of each other.
have possibly executed the same. Also the genuineness
of the signature of the testator is in doubt. The phrase, “and he has signed the same and every
page thereof, on the space provided for his signature
On the other hand, one of the attesting witnesses and and on the left hand margin,” obviously refers to the
the notary public testified that the testator executed the testator and not the instrumental witnesses as it is
will in question in their presence while he was of sound immediately preceded by the words” as his last will and
and disposing mind and that the testator was in good testament.”
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 Civil Law Review I
the hospital, knowing that her husband may have access
Clearly lacking is the statement that the witnesses to it. There was also no evidence presented that her
signed the will and every page thereof in the presence of niece was her confidant.
the testator and of one another. That the absence of the
statement required by law is a fatal defect or In the face of these improbabilities, the trial judge had to
imperfection which must necessarily result in the accept the oppositor’s evidence that Felicidad did not
disallowance of the will that is here sought to be and could not have executed such holographic will.
probated.
ISSUES:
Also, Art. 809 does not apply to the present case 1. May a holographic will be probated upon the
because the attestation clause totally omits the fact that testimony of witnesses who have allegedly seen it and
the attesting witnesses signed each and every page of who declare that it was in the handwriting of the
the will in the presence of the testator and of each other. testator?
The defect in this case is not only with respect to the 2. W/N Felicidad could have executed the holographic
form or the language of the attestation clause. The will.
defects must be remedied by intrinsic evidence supplied
by the will itself which is clearly lacking in this case. HELD:

Therefore, the probate of the will is set aside and the 1. No. The will must be presented. The New Civil Code
case for the intestate proceedings shall be revived. effective in 1950 revived holographic wills in its arts.
810-814. “A person may execute a holographic will
Article 809 cannot be used to cure the defects of the will which must be entirely written, dated, and signed by the
when it does not pertain to the form or language of the hand of the testator himself. It is subject to no other form
will. This is because there is not substantial compliance and may be made in or out of the Philippines, and need
with Article 805. not be witnessed.”

This is a radical departure from the form and solemnities

2. Gan v Yap - Germanes provided for wills under Act 190, which for fifty years
(from 1901 to 1950) required wills to be subscribed by
FACTS: Felicidad Yap died of a heart failure, leaving the testator and three credible witnesses in each and
properties in Pulilan, Bulacan, and in Manila. every page; such witnesses to attest to the number of
sheets used and to the fact that the testator signed in
Fausto E. Gan, her nephew, initiated the proceedings in their presence and that they signed in the presence of
the Manila CFI with a petition for the probate of a the testator and of each other. Authenticity and due
holographic will allegedly executed by the deceased. execution is the dominant requirements to be fulfilled
The will was not presented because Felicidad’s when such will is submitted to the courts for allowance.
husband, Ildefonso, supposedly took it. What was For that purpose the testimony of one of the subscribing
presented were witness accounts of relatives who knew witnesses would be sufficient if there is no opposition
of her intention to make a will and allegedly saw it as (Sec. 5, Rule 77). If there is, the three must testify, if
well. According to the witnesses, Felicidad did not want available. From the testimony of such witnesses (and of
her husband to know about it, but she had made known other additional witnesses) the court may form its
to her other relatives that she made a will. opinion as to the genuineness and authenticity of the
testament, and the circumstances its due execution.
Opposing the petition, her surviving husband Ildefonso
Yap asserted that the deceased had not left any will, nor With regard to holographic wills, no such guaranties of
executed any testament during her lifetime. truth and veracity are demanded, since as stated, they
After hearing the parties and considering their evidence, need no witnesses; provided however, that they are
the Judge refused to probate the alleged will on account “entirely written, dated, and signed by the hand of the
of the discrepancies arising from the facts. For one thing, testator himself.”
it is strange that Felicidad made her will known to so
many of her relatives when she wanted to keep it a “In the probate of a holographic will” says the New Civil
secret and she would not have carried it in her purse in Code, “it shall be necessary that at least one witness
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 Civil Law Review I
who knows the handwriting and signature of the testator lost or destroyed holographic will may not be proved by
explicitly declare that the will and the signature are in the the bare testimony of witnesses who have seen and/or
handwriting of the testator. If the will is contested, at read such will.
least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent’s At this point, before proceeding further, it might be
handwriting) and if the court deem it necessary, expert convenient to explain why, unlike holographic wills,
testimony may be resorted to.” ordinary wills may be proved by testimonial evidence
when lost or destroyed. The difference lies in the nature
The witnesses need not have seen the execution of the of the wills. In the first, the only guarantee of authenticity
holographic will, but they must be familiar with the is the handwriting itself; in the second, the testimony of
decedent’s handwriting. Obviously, when the will itself is the subscribing or instrumental witnesses (and of the
not submitted, these means of opposition, and of notary, now). The loss of the holographic will entails the
assessing the evidence are not available. And then the loss of the only medium of proof; if the ordinary will is
only guaranty of authenticity — the testator’s handwriting lost, the subscribing witnesses are available to
— has disappeared. authenticate.

The Rules of Court, (Rule 77) approved in 1940 allow In the case of ordinary wills, it is quite hard to convince
proof (and probate) of a lost or destroyed will by three witnesses (four with the notary) deliberately to lie.
secondary — evidence the testimony of witnesses, in And then their lies could be checked and exposed, their
lieu of the original document. Yet such Rules could not whereabouts and acts on the particular day, the
have contemplated holographic wills which could not likelihood that they would be called by the testator, their
then be validly made here. Could Rule 77 be extended, intimacy with the testator, etc. And if they were intimates
by analogy, to holographic wills? (NO) or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his
Spanish commentators agree that one of the greatest wishes. Last but not least, they can not receive anything
objections to the holographic will is that it may be lost or on account of the will.
stolen — an implied admission that such loss or theft
renders it useless. Whereas in the case of holographic wills, if oral
testimony were admissible only one man could engineer
As it is universally admitted that the holographic will is the fraud this way: after making a clever or passable
usually done by the testator and by himself alone, to imitation of the handwriting and signature of the
prevent others from knowing either its execution or its deceased, he may contrive to let three honest and
contents, the above article 692 could not have the idea credible witnesses see and read the forgery; and the
of simply permitting such relatives to state whether they latter, having no interest, could easily fall for it, and in
know of the will, but whether in the face of the document court they would in all good faith affirm its genuineness
itself they think the testator wrote it. Obviously, this they and authenticity. The will having been lost — the forger
can’t do unless the will itself is presented to the Court may have purposely destroyed it in an “accident” — the
and to them. oppositors have no way to expose the trick and the error,
because the document itself is not at hand. And
This holding aligns with the ideas on holographic wills in considering that the holographic will may consist of two
the Fuero Juzgo, admittedly the basis of the Spanish or three pages, and only one of them need be signed,
Civil Code provisions on the matter.(According to the the substitution of the unsigned pages, which may be the
Fuero, the will itself must be compared with specimens most important ones, may go undetected.
of the testators handwriting.)
If testimonial evidence of holographic wills be permitted,
All of which can only mean: the courts will not distribute one more objectionable feature — feasibility of forgery
the property of the deceased in accordance with his — would be added to the several objections to this kind
holographic will, unless they are shown his handwriting of wills listed by Castan, Sanchez Roman and Valverde
and signature. and other well-known Spanish Commentators and
teachers of Civil Law.
Taking all the above circumstances together, we reach
the conclusion that the execution and the contents of a One more fundamental difference: in the case of a lost
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 Civil Law Review I
will, the three subscribing witnesses would be testifying holographic wills cannot be proved by secondary
to a fact which they saw, namely the act of the testator of evidence unlike ordinary wills.
subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their Upon opposition of the appellant, the motion to dismiss
opinion of the handwriting which they allegedly saw, an was denied by the court.
opinion which can not be tested in court, nor directly
contradicted by the oppositors, because the handwriting The appellees then filed a motion for reconsideration on
itself is not at hand. the ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to
In fine, even if oral testimony were admissible to which the appellant in turn filed an opposition.
establish and probate a lost holographic will, we think
the evidence submitted by herein petitioner is so tainted The court dismissed the petition for probate, holding that
with improbabilities and inconsistencies that it fails to once the original copy of the holographic will is lost, a
measure up to that “clear and distinct” proof required by copy thereof cannot stand in lieu of the original.
Rule 77, sec. 6. Moreover, this Court notes that the alleged holographic
will was executed on January 25, 1962 while Ricardo B.
2. No. Even if oral testimony were admissible to Bonilla died on May 13, 1976. In view of the lapse of
establish and probate a lost holographic will, we think more than 14 years from the time of the execution of the
the evidence submitted by herein petitioner is so tainted will to the death of the decedent, the fact that the original
with improbabilities and inconsistencies that it fails to of the will could not be located shows to our mind that
measure up to that “clear and distinct” proof required by the decedent had discarded before his death his
Rule 77, sec. 6. allegedly missing Holographic Will.

Appellant's motion for reconsideration was denied.

3. Rodelas v Branza - Del Castillo Hence, an appeal to the Court of Appeals in which it is
contended that the dismissal of appellant's petition is
MARCELA RODELAS vs. AMPARO ARANZA. contrary to law and well-settled jurisprudence. Appellees
G.R. No. L-58509 moved to forward the case to this Court.
December 7, 1982
ISSUE: W/N a holographic will which was lost or cannot
FACTS: On January 11, 1977, Appellant Marcela be found can be proved by means of a photostatic copy.
Rodela filed a petition with the CFI for the probate of the
holographic will of Ricardo Bonilla and the issuance of RULING: YES. A holographic will which was lost or
letters testamentary in her favor. The petition was cannot be found may be proved by means of a
opposed by the appellees Amparo Aranza, et al, on the photostatic copy.
following grounds: x x x
Pursuant to Article 811 of the Civil Code, probate of
(3) The alleged holographic will itself, and not an alleged holographic wills is the allowance of the will by the court
copy thereof, must be produced, otherwise it would after its due execution has been proved. The probate
produce no effect, as held in Gam v. Yap, 104 Phil. 509; may be uncontested or not. If uncontested, at least one
and identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at
(4 ) The deceased did not leave any will, holographic or least three Identifying witnesses are required.
otherwise, executed and attested as required by law.
However, if the holographic will has been lost or
The appellees Amparo Aranza, et al, likewise moved for destroyed and no other copy is available, the will can not
the consolidation of the case with another case. Their be probated because the best and only evidence is the
motion was granted by the court. handwriting of the testator in said will. It is necessary
that there be a comparison between sample handwritten
Following the consolidation of the cases, the appellees statements of the testator and the handwritten will.
moved again to dismiss the petition for the probate of the
will. They argued, among others, that lost or destroyed
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But, a photostatic copy or xerox copy of the holographic
will may be allowed because comparison can be made Issues: (1) Whether the petition is cognizable by the
with the standard writings of the testator. In the case of Court; and (2) Whether there is preterition; (3) if there is
Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the preterition, whether the whole will is void.
execution and the contents of a lost or destroyed
holographic will may not be proved by the bare Ruling:
testimony of witnesses who have seen and/or read such 1. The Court took cognizance of the case to avoid waste
will. The will itself must be presented; otherwise, it shall of time, effort, and expense.
produce no effect. The law regards the document itself
as material proof of authenticity." But, in Footnote 8 of This case is one of the probate of the will. The court’s
said decision, it says that "Perhaps it may be proved by area of inquiry, therefore, is limited to the extrinsic
a photographic or photostatic copy. Even a validity of the will, namely due execution, testamentary
mimeographed or carbon copy; or by other similar capacity, and compliance with requisites and solemnities
means, if any, whereby the authenticity of the as provided for by law. The Court is not called on to rule
handwriting of the deceased may be exhibited and on the intrinsic validity of the will, namely the efficacy of
tested before the probate court," Evidently, the the provisions nor the legality of the devise or legacy
photostatic or xerox copy of the lost or destroyed therein.
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be However, the meat of this case is one concerning the
determined by the probate court. intrinsic validity of the will, which normally is done after a
will has been probated. However, after reflection, if the
Court does dismiss the case and wait for probation
4. Nuguid v Nuguid - Tan, C before ruling on the same, it will only result in surplusage
and delay of proceedings.
Nuguid v Nuguid
GR no. L-23445 2. There is preterition. Article 854 provides that
June 23, 1966 preterition is the omission of one, some, or all of the
compulsory heirs in the direct line. In the case, Rosario
FACTS: Rosario Nuguid died without any descendants, left no descendants, but indeed left forced or compulsory
legitimate or illegitimate, and survived by her parents heirs: the parents and oppositors of the probate of the
and six brothers and sisters. will. Clearly, the institution of Remedios as the universal
heir completely omits them both.
In May 1963, her brother Remedios filed in the CFI a
petition for probate of a holographic will allegedly 3. Yes, the entire will is void. In construing the word
executed by Rosario in 1951, praying that the will be “annul” as employed in the statute, there is no escaping
admitted to as well as the issuance of letters of the conclusion that preterition in this case results in the
administration in her favor. total abrogation of the will. Because the will only
provides the institution of a universal heir without any
In June 1963, the parents of the deceased filed an other testamentary disposition, the deletion of the
opposition on the ground of preterition, that the institution amounts to the declaration that nothing is
institution of Remedios as universal heir excluded them written at all.
as parents of the deceased, and is therefore void. They
filed their motion to dismiss on the ground of absolute The Court took into consideration the proviso “devises
preterition on August 1963, before the hearing on the and legatees shall be valid insofar as they are not
probate of the will. Petitioner thereafter filed her inofficious”. In this case, the institution as universal heir
opposition to the motion to dismiss. cannot be considered a devise or legacy because
devises and legacies must be expressly given in the will.
The CFI ruled in favor of the opposition, stating that the
holographic will is void due to preterition. Neither is this a case of ineffective disinheritance.
Preterition is the omission of compulsory heirs, whereas
Petitioner appealed directly to the Supreme Court. disinheritance is an express testamentary disposition
depriving a compulsory heir of his share. Since the will
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does not expressly disinherit the parents of the testator,
there is no case of disinheritance.

Nor is the Court swayed by petitioner’s arguement that

the “ineffectively disinherited heirs” are still entitled to
their legitimes, but the institution of universal heir is not
invalidated. Citing the Neri case, the Court said that the
institution of heirs is separate and distinct from legacies
and devises. In construing otherwise would result in the
destruction of integral parts of the Civil Code. The
assailed portion declares the will “a complete nullity”,
however A854 merely nullifies the institution of heirs.
However, since the institution of heir is the sole provision
of the will, the result is the same: the entire will is null,

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