G.R. No. L-12190, 30 August 1958, 104:509


Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan, and in Manila. Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFI with a petition for the probate of a holographic will allegedly executed by the deceased. Her surviving husband Ildefonso Yap opposed the petition and asserted that the deceased had not left any will, nor executed any testament during her lifetime.

During the probate, the alleged will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez who testified Felicidad’s intention to make a will and allegedly saw it as well. According to the witnesses, Felicidad did not want her husband to know about it, but she had made known to her other relatives that she made a will.

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,refused to probate the alleged will on account of the discrepancies arising from the facts. For one thing, it is strange that Felicidad made her will known to so many of her relatives when she wanted to keep it a secret and she would not have carried it in her purse in the hospital, knowing that her husband may have access to it.

In the face of these improbabilities, the trial judge had to accept the oppositor’s evidence that Felicidad did not and could not have executed such holographic will.


May a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator?


The SC ruled that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. “A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed.”

Holographic will is a radical departure from the form and solemnities provided for wills. With regard to holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are “entirely written, dated, and signed by the hand of the testator himself.”

“In the probate of a holographic will” says the New Civil Code, “it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent’s handwriting) and if the court deem it necessary, expert testimony may be resorted to.”
The witnesses need not have seen the execution of the holographic will, but they must be familiar with the decedent’s handwriting. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity — the testator’s handwriting — has disappeared.

*Case digest by Karen S. Tindugan, LLB-IV, Andres Bonifacio College Law School, SY 2018-2019