Obstáculos comerciales

The Court of Appeals, however, reversed the trial court’s decision and ordered the dismissal of the petition for probate. It noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.

ISSUE:

1. Whether or not the will was not executed and attested to in accordance with law (attestation clause did not state the number of pages and it was not signed by the attesting witnesses at the bottom thereof, and it was not acknowledge before a notary public) and, hence, should be admitted to probate

HELD:

The petition is DENIED.

A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A

notarial will with all three defects is just aching for judicial rejection. RECENT JURISPRUDENCE – CIVIL LAW Prior to the New Civil Code, the statutory provision governing the formal requirements of wills was Section 618 of the Code of Civil Procedure. Extant therefrom is the requirement that the attestation state the number of pages of the will. The enactment of the New Civil Code put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed the said Section 618.

Article 809 of the Civil Code, the Code Commission opted to recommend a more liberal construction through the “substantial compliance rule.” However, Justice J.B.L. Reyes cautioned that 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...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.” The Court suggested in Caneda v. Court of Appeals (G.R. No. 103554, May 28, 1993, 222 SCRA 781): “the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal

and, correspondingly, would not obstruct the allowance to probate of the will being assailed.

However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.” The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Art. 809. This requirement aims at safeguarding the will against possible interpolation or omission of one or some of its pages and thus preventing any increase or decrease in the pages. Following Caneda case, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. In this case, however, there could have been no substantial compliance with the requirements under Art. 805 of the Civil Code since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in.

The subject will cannot be considered to have been validly attested to by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause. Art. 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from

the requisite that the will be attested and subscribed by them. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal.

The notary public who notarized the subject will wrote, “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.” By no manner of contemplation can these words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.

The case of Cagro v. Cagro is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin." While three (3) Justices considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation

clause had not been duly signed, rendering the will fatally defective.

It might be possible to construe the averment as a jurat, even though it does not follow to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor. It may not have been said before, but a notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public. The importance of the requirement of acknowledgment is highlighted by the fact that it had been segregated from the other requirements under Art. 805 and entrusted into a separate provision, Art. 806.

The express requirement of Art. 806 is that the will be “acknowledged”, and not merely subscribed and sworn to. The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will.

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.

The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so- called "logical end"of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory. Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.

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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.

Article 806. Every will must be acknowledged before a notary public by the testator and the witnesses.

SALUD TEODORO VDA. DE PEREZ vs TOLETE G.R. No. 76714

FACTS:

Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez- Cunanan, who became American citizens, established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.

On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his real and personal property at the time of his death "wheresoever situated”. In the event he would survive his wife, he bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor.

Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing the same provisions as that of the will of her husband.

On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for the

probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary were issued in his favor.

Later, Evelyn’s mother, Salud Perez, filed a petition for reprobate in Bulacan.

PLAINTIFF’S CONTENTION:

Salud said she was the sole heir of her daughter, Evelyn, and that the two wills were in accordance with New York law. But before she could present evidence to prove the law of New York, the reprobate court already issued an order, disallowing the wills.

DEFENDANT’S CONTENTION:

Defendant Rafael opposed, arguing that Salud was not an heir according to New York law. He contended that since the wills were executed in New York, New York law should govern. He further argued that, by New York law, he and his brothers and sisters were Jose’s heirs and as such entitled to notice of the reprobate proceedings, which Salud failed to give.

LOWER COURT’S DECISION:

The last will and testament was subsequently denied probate and on April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case was reassigned, issued an order stating that

"(W)hen the last will and testament . . . was denied probate," the case was terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all intents and purposes, closed.

On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed, genuine and sufficient to possess real and personal property; that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his findings issued a decree admitting to probate the wills in question." However, respondent Judge said that the documents did not establish the law of New York on the procedure and allowance of wills. APPELLATE COURT’S DECISION: None, it was filed directly to the Supreme Court.

ISSUE: Whether or not the reprobate of the wills should be allowed.

The Supreme Court ruled that the respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines:

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.

Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills. Except for the first and last requirements, the petitioner submitted all the needed evidence. The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them.

There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach.

What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate.

The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required. The order of the respondent Judge was SET ASIDE.