G.R. No. 103554, 28 May 1993, 222 SCRA 781


On December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence before 3 witnesses. He was assisted by his lawyer, Atty. Emilio Lumontad. In the will, it was declared that the testator was leaving by way of legacies and devises his real and personal properties to several people all of whom do not appear to be related to the testator. 4 months later, Mateo Caballero himself filed a case seeking the probate of his last will and testament, but numerous postponements pushed back the initial hearing of the probate court regarding the will. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special administrator of the testator’s estate. Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted a second petition for intestate proceedings. They also opposed the probate of the testator’s will and the appointment of a special administrator for his estate. Benoni Cabrera died and was replaced by William Cabrera as special administrator and gave an order that the testate proceedings for the probate of the will had to be heard and resolved first. In the course of the proceedings, petitioners opposed to the allowance of the testator’s will on the ground that on the alleged date of its execution, the testator was already in poor state of health such that he could not have possibly executed the same. Also the genuineness of the signature of the testator is in doubt.

On the other hand, one of the attesting witnesses and the notary public testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that the testator was in good health and was not unduly influenced in any way in the execution of his will.
Probate court then rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero. CA affirmed the probate court’s decision stating that it substantially complies with Article 805. Hence this appeal.


W/N the attestation clause in the will of the testator is fatally defective or can be cured under the art. 809.


No. It does not comply with the provisions of the law. Ordinary or attested wills are governed by Arts. 804 to 809. The will must be acknowledged before a notary public by the testator and the attesting witnesses. The attestation clause need not be written in a language known to the testator or even to the attesting witnesses. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. The attestation clause, therefore, provides strong legal guaranties for the due execution of a will and to insure the authenticity thereof. It is contended by petitioners that the attestation clause in the will failed to specifically state the fact that the attesting witnesses witnessed the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. And the Court agrees. The attestation clause does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.

The phrase, “and he has signed the same and every page thereof, on the space provided for his signature and on the left hand margin,” obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words” as his last will and testament.” Clearly lacking is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. That the absence of the statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be probated.

Also, Art. 809 does not apply to the present case because the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. The defect in this case is not only with respect to the form or the language of the attestation clause. The defects must be remedied by intrinsic evidence supplied by the will itself which is clearly lacking in this case.

Therefore, the probate of the will is set aside and the case for the intestate proceedings shall be revived. Article 809 cannot be used to cure the defects of the will when it does not pertain to the form or language of the will. This is because there is not substantial compliance with Article 805.

*Case digest by Russel Vincent T. Saracho, LLB-IV, Andres Bonifacio College Law School, SY 2018-2019