Mandatory provision - A Law Each Day (Keeps Trouble Away)

A Will entirely written, dated and signed by the hand of the testator is known as Holographic Will. It is subject to no other form, can be made in or out of the Philippines and need not be witnessed (Art. 810 Civil Code). For its probate, at least one witness who knows the handwriting and signature of the testator must explicitly declare that the Will and the signature are in the handwriting of the testator. If the Will is contested, at least three of such witness shall be required. In the absence of any competent witness, expert testimony may be resorted to if the court deem it necessary (Art. 811 Civil Code).

According to the Supreme Court in the case of Azaola vs. Singson 109 Phil. 102, even if the genuineness of the Holographic Will were contested, the above Art. 811 of the Civil Code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator under penalty of having the probate denied. The Supreme Court reasoned out that no witness may have been present at the execution of the Holographic Will, now being required by law under Art. 810, so it becomes obvious that the existence of witnesses possessing the requisite qualification is a matter beyond the control of the proponent for the probate of said Will. Thus the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

But in this case of the Holographic Will of Doña Ramona, the Supreme Court has abandoned the above ruling in Azaola.

Doña Ramona was a rich widow without any children. She only had two legally adopted children Bert and Linda and another ampon Cristina who claimed that she was also in fact adopted and had lived with her since birth. She also had a niece by the name of Margarita who used to help her in the collection of rentals in the various commercial buildings she owned.

When Doña Ramona died on Jan. 16, 1990, Margarita disclosed for the first time the existence of a Holographic Will allegedly dated and signed by Doña Ramona after every paragraph containing the disposition of her properties. Margarita said that she got the said Will from the aparador of her mother (sister of Doña Ramona) way back in 1985 when the latter died.

In said Will Doña Ramona left the main bulk of her properties in favor of Cristina and two other devisees; Arlene and Gigi, who were not her relatives. When Cristina, Arlene and Gigi asked the Court for the probate of Doña Ramona's Holographic Will, Bert and Linda, her legally adopted children contested its genuineness. They contended that the repeated dates and signatures incorporated or appearing on the Will after every disposition is out of the ordinary. And assuming that the Will is in the handwriting of Doña Ramona, it was procured by undue and improper pressure and influence in the part of Cristina, Arlene and Gigi, the beneficiaries.

At the probate of the Will, Cristina et. al. presented six witnesses and various documentary evidence. However, only two witnesses, Cristina and Margarita, testified on the authenticity of the Holographic Will and the handwriting and signature of Doña Ramona. So Bert and Linda asked the Court to deny probate of the Will because Cristina et. al. failed to comply with the law requiring three witnesses for the probate of a contested Holographic Will. While the lower court sustained them and dismissed the petition for probate, the Court of Appeals reversed the lower court and declared that the presentation of three witnesses under Art. 811 is not compulsory. Was the Court of Appeals correct?

No. The provision of Art. 811 requiring three witnesses for the probate of a contested Holographic Will is contested is mandatory. The word "shall" connotes a mandatory order. "Shall" in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion.

Laws are enacted to achieve a goal intended and to guard against or prevent an evil or mischief. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented in the possibility that unscrupulous individuals will employ means to defeat the wishes of the testator for their benefit.

The possibility of a false document being adjudged as the Will of the testator cannot be eliminated which is why if the Holographic Will is contested, the law requires three witnesses to declare that the Will is in the handwriting of the deceased (Codoy and Ramonal vs. Calugay et. al. G.R. 123486 Aug. 12, 1999).

What is confusing about this decision is that the Supreme Court did not deny probate of the Holographic Will, but remanded the case to the lower court to allow Bert and Linda to adduce evidence in support of their opposition to the probate of said Will.

Atty. Sison's e-mail address is: [email protected].