Art. 805, 809 | Succession, Substantial Compliance
Provision:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and 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 that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.
Ponente:
Perlas-Bernabe J.,
Petitioner: Richard B. Lopez
Respondent: Diana Jeanne Lopez, Marybeth de Leon and Victoria L. Tuazon
Recit Version:
Enrique S. Lopez passed away leaving behind a will naming his son, Richard B. Lopez, as executor. Richard filed a petition for the probate of the will, but it was opposed by his sisters Marybeth and Victoria, who claimed it was improperly executed. The RTC-Manila disallowed the probate of the will for not having been executed and attested in accordance with law. The Supreme Court affirmed the decision of the lower court.
The law mandates that the attestation clause must state the number of pages in the will to prevent tampering or omission of pages. The statement in the acknowledgment portion of the will did not substantially comply with the requirement, as it misstated the number of pages as seven instead of eight. This discrepancy could not be explained solely by examining the will itself.
Facts:
In 1999, Enrique S. Lopez died leaving his wife, Wendy B. Lopez, and their four legitimate children, namely, petitioner Richard B. Lopez and the respondents Diana Jeanne Lopez, Marybeth de Leon and Victoria L. Tuazon as compulsory heirs.
In 1996, Enrique executed a Last Will and Testament constituting Richard as his executor and administrator.
Richard filed a petition for the probate of his father's will before RTC -Manila.
Marybeth opposed the petition contending that the will was not executed and attested as required by law, and that it was procured by undue and improper pressure and influence on the part of Richard. Victoria adopted the opposition.
Richard presented the attesting witnesses and the notary public who notarized the will, Atty. Perfecto Nolasco. Atty. Nolasco claimed that Enrique had been his client for more than 20 years and that the latter consulted him in the preparation of the will.
The oppositors presented its lone witness, Gregorio B. Paraon, Officer-in-Charge of the Notarial Section, Office of the Clerk of Court, RTC-Manila who testified that Atty. Nolasco was not a notary public for the City of Manila in 1996.
RTC-Manila: Disallowed the probate of the will for not having been executed and attested in accordance with law.
CA: Affirmed the ruling.
Issue:
WoN the Court of Appeals erred in disallowing the probate of the Last Will and Testament of Enrique S. Lopez. NO
Held:
The law is clear that the attestation must state the number of pages used upon which the will is written. The purpose of the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or decrease in the pages.
While Article 809 allows substantial compliance for defects in the form of the attestation clause, Richard likewise failed in this respect. The statement in the Acknowledgment portion of the subject last will and testament that it "consists of 7 pages including the page on which the ratification and acknowledgment are written" cannot be deemed substantial compliance. The will actually consists of 8 pages including its acknowledgment which discrepancy cannot be explained by mere examination of the will itself but through the presentation of evidence aliunde.
The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself 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.
Comments
Post a Comment