The case of the rejected will | Inquirer Business
Property rules

The case of the rejected will

Lix sought to admit to probate the notarial will of Eugenie. Lix is the son of the cousin of the decedent and was the one who took care of the decedent prior to her death.

Eugenie, through the will which consists of two pages and written in the vernacular Pilipino, contained instructions as to her burial and gave Lix the real properties registered under the name of ABC Corporation. She also named Art as her executrix.


The three witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause.

The petition was opposed by Alda, who represented herself as the attorney-in-fact of “the 12 legitimate heirs” of the decedent. Alda claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by Alda against Lix, particularly those centering on Lix’s right to occupy the properties of the decedent.


She also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad.

Alda also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent’s signature did not appear on the second page of the will, and the will was not properly acknowledged.

It further appears that the attestation clause failed to state the number of pages of the will.

Q: Is Article 805 of the Civil Code that requires that “the number of pages used in a notarial will be stated in the attestation clause” is directory or mandatory?

A: It is mandatory. Admittedly, the attestation clause fails to state the number of pages of 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; hence, the requisite was left uncomplied with.

The purpose of requiring the number of sheets to be stated in the attestation clause is obvious: the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages.

If, on the other hand, the total number of sheets is stated in the attestation clause, the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty.

In this case, the number of pages used in the will is not stated in any part of the will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.


Q: May Lix invoke substantial compliance as stated in Art. 809 of the Civil Code?

A: No. The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809.

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.

The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to.

There is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of. In this case, there could have been no substantial compliance with the requirements under Article 805 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.

Q: What other critical defects does the will have that would necessarily lead to its rejection?

A: For one, the attestation clause was not signed 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 which after all consists of their averments before the notary public.

An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. An unsigned attestation clause results in an unattested will.

Second, the requirement under Article 806 that “every will must be acknowledged before a notary public by the testator and the witnesses” has also not been complied with.

In lieu of an acknowledgment, the notary public, wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.” By no manner of contemplation can those 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.

It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. (Source: Azuela vs. Court of Appeals, G.R. No. 122880, April 12, 2006)

Ma. Soledad Deriquito-Mawis is Dean, College of Law, Lyceum of the Philippines University; Board Trustee, Philippine Association of Law Schools; Founder, Mawis Law Office

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