Tedoro CANEDA, et al.petitioners vs. Hon.

COURT OF APPEALS and William

CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents.

On December 5, 1978, Mateo Caballero, a widower without any children, already in the
twilight years of his life executed a last will and testament before three attesting witnesses
and he was duly assisted by his lawyer and a notary public. It was declared therein that,
among other things that the testator was leaving by way of legacies and devises his real
and personal properties to specific persons, all of whom do not appear to be related to
Mateo. Not long after, he himself filed a petition before the CFI seeking the probate of his
last will and testament but the scheduled hearings were postponed, until the testator
passed away before his petition could finally be heard by the probate court. Benoni
Cabrera, one of the legatees named in the will, sought his appointment as special
administrator of the testators estate but due to his death, he was succeeded by William
Cabrera, who was appointed by RTC which is already the probate court.

PETITIONERS: The petitioners assail to the allowance of the testators will on the ground
that it was not executed in accordance with all the requisites of law since the testator was
already in a poor state of health such that he could not have possibly executed the same.
Petitioners likewise contend that the will is null and void because its attestation clause is
fatally defective since it fails to specifically state that the instrumental witnesses to the will
witnessed the testator signing the will in their presence and that they also signed the will
and all the pages thereof in the presence of the testator and of one another.

RESPONDENTS: The respondent, on the other hand, argue that Mateo was of sound and
disposing mind and in good health when he executed his will. Further, they also contend
that the witnesses attested and signed the will in the presence of the testator and of each
other.

Whether or not the attestation clause in the last will of Mateo Caballero is fatally defective
such that whether or not it aects the validity of the will.

Whether or not the attestation clause complies with the substantial compliance pursuant
to Article 809 of the Civil Code.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner of the
execution of the same. It is a separate memorandum or record of the facts surrounding
the conduct of execution and once signed by the witnesses; it gives armation to the fact
that compliance with the essential formalities required by law has been observed. Under
the 3rd paragraph of Article 805, such a clause, the complete lack of which would result
in the invalidity of the will, should state:

1 The number of pages used upon which the will is written;

2 That the testator signed, or expressly cause another to sign, the will
and every page thereof in the presence of the attesting witnesses;
and

3 That the attesting witnesses witnessed the signing by the testator of
the will and all its pages, and that the said witnesses also signed the
will and every page thereof in the presence of the testator and of one
another.

It will be noted that Article 805 requires that the witness should both attest and subscribe
to the will in the presence of the testator and of one another. Attestation and
subscription dier in meaning. Attestation is the act of sense, while subscription is the
act of the hand. The attestation clause herein assailed is that while it recites that the
testator indeed signed the will and all its pages in the presence of the three attesting
witnesses and states as well the number of pages that were used, the same 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. What is then
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.

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 admitted to
probate. Petitioners are correct in pointing out that the defect in the attestation clause
obviously cannot be characterized as merely involving the form of the will or the language
used therein which would warrant the application of the substantial compliance rule, as
contemplated in Article 809 of the Civil Code:

In the absence of bad faith, forgery, or fraud or undue and improper pressure and
influence, defects and imperfection in the form of attestation or in the language used
therein shall not render the will invalid if it is not proved that the will was in fact executed
and attested in substantial compliance with all the requirements of Article 805.

The defects and imperfection must only be with respect to the form of the attestation or
the language employed therein. Such defects or imperfection would not render a will
invalid should it be proved that the will was really executed and attested in compliance
with Article 805. These considerations do not apply where 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. In such a situation, the defect is not only in the
form or language of the attestation clause but the total absence of a specific element
required by Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no plausible way by
which it can be read into the questioned attestation clause statement, or an implication
thereof, that the attesting witness did actually bear witness to the signing by the testator
of the will and all of its pages and that said instrumental witnesses also signed the will
and every page thereof in the presence of the testator and of one another.

source: https://legalnotes.wordpress.com/2013/07/02/succession-ordinary-wills-casesdigests/