have signed but not in the presence of each other

TEODORO CANEDA vs CA and WILLIAM CABRERA

Caneda vs. CA
G.R. No. 103553, May 28, 1993

Doctrine:

1) Attestation clause which does not state that testament “was signed by the witnesses in the presence of one
another and of the testator” renders the will null and void.
2) Mere defects in form in the attestation clause do not render will void.
3) Defects in attestation clause which require submission of parol evidence not mere defects of form.

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.
deceased
Recit-Ready Summary: Mateo Caballero executed a last will and testament before 3 witnesses and was duly
assisted by his layer and a notary public in its preparation. Petitioners claiming to be nieces and nephews of
the testator objected to the allowance of the will on the ground that the testator was in a poor state of health
at the time he executed the will and that the signatures of the testator in the will was not genuine. Probate
Court declared the will valid based on the testimonials of the witnesses and the notary public. Petitioners
went to the CA alleging that the attestation clause is not valid. CA affirmed trial court ruling but the SC
reversed saying that the attestation clause of the will is not sufficient in form as it did not state that the
witnesses actually witnessed the signing of the testator. It only showed their signatures. SC held the will was
null and void.

Facts:
• Mateo Caballero (Testator) executed a last will and testament at his residence in Cebu before three
attesting witnesses.
• Testator was duly assisted by his lawyer and a notary public in the preparation of that last will.
• Testator was leaving by way of legacies and devises his real and personal properties to 5 people who
are not related to the testator
• Testator sought the probate of his last will and testament and the probate court set the petition for
hearing.
• Testator passed away before his petition could finally be heard by the probate court.
• Petitioners in this case claiming to be the nephews and nieces of the testator instituted a second
petition opposing the probate of the testator’s will.
• Petitioners appeared as oppositors and objected to the allowance of the will on the ground that on the
alleged date of its execution, the testator was already in a poor state of health such that he could not
have possibly executed the same.
o As well as the genuineness of the signatures of the testator
• One of the witnesses and the notary public testified that the testator executed the will in their
presence while he was of sound and disposing mind and of good health and was not unduly
influenced in any way in the execution of his will.
• Probate Court declared that the will was executed in accordance with all the requisites of law.
• Petitioners went to the CA and asserted that the attestation clause is fatally defective since it fails to
specifically state that the witnesses to the will witnessed the testator signing the will in their presence
and that the also signed the will and all the pages in the presence of the testator and of one another.
• CA affirmed trial court ruling the attestation clause complies with the Civil Code.
• Issue: Whether or not the attestation clause complies with what is required in the Civil Code.
• Petiton is granted, CA and RTC decision are reversed and set aside.
• 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 gives
affirmation to the fact that compliance with the essential formalities required by law has been
observed.
• Complete lack of the third paragraph of Article 805 would result in the will’s invalidity:
o The number of pages used upon which the will is written;
o That the testator signed the will and every page thereof in the presence of the attesting
witnesses; and
o That the attesting witnesses witnessed the signing by the testator of the will and all its pages,
and that said witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
• Purposes of attestation clause.—
o The purpose of the law in requiring the clause
§ to state the number of pages on which the will is written
• is to safeguard against possible interpolation or omission of one or some of
its pages and to prevent any increase or decrease in the pages;
o whereas the subscription of the signatures of the testator and the
attesting witnesses
§ is made for the purpose of authentication and
identification,
• and thus indicates that the will is the very same
instrument executed by the testator and attested to
by the witnesses.
o Further, by attesting and subscribing to the will,
§ the witnesses thereby declare the due execution of the will
• as embodied in the attestation clause.
o The attestation clause, therefore, provides strong legal guaranties
§ for the due execution of a will
§ and to insure the authenticity thereof.
o As it appertains only to the witnesses and not to the testator,
§ it need be signed only by them.
o Where it is left unsigned,
§ it would result in the invalidation of the will
• as it would be possible and easy
o to add the clause on a subsequent occasion
§ in the absence of the testator and the witnesses.
• Same; Words and Phrases; “Attestation” and “Subscription” distinguished.—
o It will be noted that Article 805 requires that
§ the witnesses should both attest and subscribe to the will
• in the presence of the testator and of one another.
o “Attestation” and “subscription” differ in meaning.
§ Attestation
• is the act of the senses,
o while subscription
§ is the act of the hand.
§ The former is mental,
• the latter mechanical,
o and to attest a will is to know that it was published as such,
 § and to certify the facts required to constitute an actual and
legal publication;
§ but to subscribe a paper published as a will
• is only to write on the same paper the names of
the witnesses,
o for the sole purpose of identification.
• Same; Attestation clause which does not state that testament “was signed by the witnesses in the presence of one another
and of the testator” renders the will null and void.—
o What is fairly apparent upon a careful reading of the attestation clause herein
§ assailed is the fact 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.
o The phrase “and he has signed the same and every page thereof, on the spaces 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.”
o On the other hand, although the words “in the presence of the testator and in the presence
of each and all of us”
§ may, at first blush, appear to likewise signify and refer to the witnesses,
• it must, however, be interpreted as referring only to the testator signing in
the presence of the witnesses
o since said phrase immediately follows the words
§ “he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand
margin.”
o What is then clearly lacking, in the final logical analysis,
§ is the statement that the witnesses signed the will and every page thereof in the presence of the
testator and of one another.
o It is our considered view that the absence of that 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.
• Same; Mere defects in form in the attestation clause do not render will void.—
o We stress once more that under Article 809,
§ the defects or imperfections must only be with respect to the form of the attestation
or the language employed therein.
o Such defects or imperfections would not render a will invalid should it be proved
§ that the will was really executed and attested in compliance with Article 805.
o In this regard, however, the manner of proving the due execution and attestation has been
held to be limited
§ to merely an examination of the will itself without resorting to evidence aliunde,
whether oral or written.
• Same; Same; Defects in attestation clause which require submission of parol evidence not mere defects of form.—
o In the case at bar, contrarily,
§ proof of the acts required to have been performed by the attesting witnesses
• can be supplied only by extrinsic evidence thereof,
 o since an overall appreciation of the contents of the will
§ yields no basis whatsoever from which such facts may be
plausibly deduced.
o What private respondent insists on are the testimonies of his witnesses
§ alleging that they saw the compliance with such requirements by the instrumental
witnesses,
• oblivious of the fact that he is thereby resorting to extrinsic evidence
o to prove the same and would accordingly be doing by indirection
what in law he cannot do directly.
o It may thus be stated that 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,
o will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed.
o However, those omissions which cannot be supplied
§ except by evidence aliunde
• would result in the invalidation of the attestation clause
o and ultimately, of the will itself.