Imperfect but valid

For a Will to be probated, there must be the required number of witnesses which is usually indicated in the Attestation Clause. If the Attestation Clause does not indicate the required number of witnesses, can the Will be still admitted to probate? This is one of the questions answered in this case of Abad.

Abad died sometime in May 1940 followed by his wife Doray sometime in September 1943. Both died without legitimate children. But some 28 years later or on September 12, 1968, Alipio, whose father was an alleged natural child of Abad, filed a petition for probate of the Will of Abad executed on June 4, 1932 where his father was instituted as one of the testamentary heirs. On the same date, he also filed another petition for the probate of the Will of Doray.

Both petitions were opposed by the nephews, nieces and grandchildren of Abad and Doray on the main grounds that the couple left no Will when they died; and assuming they did execute a Last Will and Testament, they were not executed and attested as required by law. One of them Linda even filed her own petition for issuance of letters of administration of the intestate estate of Abad and Doray.

The Will of Doray was admitted to probate on August 14, 1981. Since the oppositors did not file any motion for reconsideration, the order allowing the probate of Doray’s Will became final and executory. On the other hand Linda, who was already appointed as Special Adminis-tratrix of the estate of Abad and Doray moved for the dismissal of for the probate of the Will of Abad. But the RTC denied the same. Instead, on June 24, 1994, the RTC admitted and allowed probate of the last Will and Testament of Abad and appointed Nestor Abella as administrator of the state of Doray while Linda continued to be the administratrix of the estate of Abad.

Not satisfied, Linda questioned the RTC decision. She contended among others, that the Will of Abad should not have been admitted to probate because its Attestation Clause does not indicate the required number of three witnesses as provided in Section 618 of the Code of Civil Procedure which was the law applicable at the time when the Will was executed. Was Linda correct?

NO. An Attestation Clause is made for the purpose of preserving, in permanent form, a record of facts attending the execution of the Will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved (Thompson on Wills 2d ed. Sec. 132). A Will therefore should not be rejected where its attestation Clause serves the purpose of the law. If the surrounding circumstance point to a regular execution of the Will, and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of bad faith, forgery, or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. This is the rule on liberal construction that does not offer any puzzle or difficulty, nor does it open the door to serious consequences. This rule does not allow evidence aliunde (evidence from other sources) to fill a void in any part of the document or supply missing details that should appear in the Will itself. It only permits a probe into the Will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of the law.

In the probate of Abad’s Will, the rule on liberal construction should be applied so that in determining the number of witnesses only substantial compliance is necessary. While the attestation clause in this case does not state the number of witnesses, a close inspection of the Will shows that three witnesses signed it. Abad’s Last Will clearly shows four signatures: that of Abad and of three other persons. It is reasonable to conclude that there are three witnesses to the Will. The phrase "in our presence" coupled with signatures appearing on the will itself and after the attestation clause could only mean that: (1) Abad subscribed to and professed before the three witnesses that the document was his last will, and (2) Abad signed the will on the left margin of each page of the will in the presence of three witnesses. The question on the number of witnesses is answered by an examination of the Will itself and without need for the presentation of evidence aliunde (Testate Estate of Abada vs. Abaja and Abellar, G.R. 147145, January 13, 2005).

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