Dear Atty. Gab,

Musta Atty! I hope this email finds you well. My name is Mario Rivera, and I’m writing to you with a heavy heart and a confusing legal problem regarding my late uncle, Mr. Eduardo Gonzales. He passed away a few months ago, and before his death, he executed what we believed was his final will and testament. He named me as the executor, and I recently filed a petition to have the will probated.

Unfortunately, my cousins, who were perhaps expecting a different distribution of assets, are now opposing the probate. Their main argument revolves around the will’s formalities. They pointed out, and upon checking, it seems they are correct, that the attestation clause, the part signed by the witnesses, doesn’t explicitly state the total number of pages the will consists of. This was apparently missed during the signing.

To complicate things, the acknowledgment part, signed by my uncle and the notary, does mention a number of pages – it says ‘seven pages including this acknowledgment page’. However, when we physically count the pages, the entire document, including the acknowledgment, actually has eight pages. My cousins are arguing that this discrepancy, combined with the omission in the attestation clause, makes the will invalid under the law.

I remember my uncle being meticulous, and the signing ceremony seemed proper, with witnesses present. It feels wrong that his last wishes might be disregarded over what seems like a technical error. Is the omission in the attestation clause fatal? Does the incorrect page count in the acknowledgment make things worse? I am quite worried and unsure how to proceed with the probate. Any guidance you could offer would be immensely appreciated.

Sincerely,
Mario Rivera

Dear Mario,

Thank you for reaching out. I understand your concern regarding your late uncle’s will and the challenges you’re facing with its probate. Dealing with legal formalities after losing a loved one can indeed be stressful.

The situation you’ve described touches upon critical aspects of Philippine law regarding the execution of wills. Our laws prescribe specific formalities for notarial wills to ensure their authenticity and protect the testator’s true intent. While the law aims to uphold the testator’s wishes, failure to comply with certain mandatory requirements, particularly concerning the attestation clause and page numbering, can unfortunately lead to the will being disallowed. There is a concept called substantial compliance, but its application has limitations, especially when defects cannot be resolved by examining the will itself.

Decoding the Formalities: What Makes a Will Valid in the Philippines?

The execution of a will is considered a solemn act under Philippine law. To ensure that the document truly reflects the final wishes of the testator (the person making the will, like your uncle) and to prevent fraud or tampering, the Civil Code imposes strict formal requirements for notarial wills (wills executed before a notary public with witnesses). Think of these formalities as safeguards.

One of the most critical parts of a notarial will is the attestation clause. This is the statement signed by the instrumental witnesses, certifying the facts surrounding the execution of the will. It serves as proof that the formalities required by law were observed during the signing ceremony. The law is very specific about what this clause must contain.

Article 805 of the Civil Code clearly outlines these requirements. Regarding the issue you raised, the third paragraph states:

“The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.” (Article 805, Civil Code of the Philippines) [Underscoring supplied]

The purpose of requiring the attestation clause to state the number of pages is explicit: ”to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or decrease in the pages.” It acts as a crucial security feature, ensuring the document presented for probate is the complete and unaltered will executed by the testator.

Now, you mentioned a potential discrepancy and the concept of maybe overlooking minor errors. The law does provide some leeway through Article 809, which allows for substantial compliance:

“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.” (Article 809, Civil Code of the Philippines)

This means that not every minor imperfection will invalidate a will, provided the underlying requirements of Article 805 were actually met and there’s no evidence of foul play. However, the application of substantial compliance is not absolute, especially concerning the statement of the number of pages. Jurisprudence clarifies the extent of this rule.

The prevailing interpretation is that substantial compliance generally applies to defects that can be verified by examining the will document itself. For example, if the attestation clause fails to mention that the testator signed every page, but the signatures are clearly present on each page, a court might deem this a substantially compliant defect. The document itself provides the missing information.

However, the requirement to state the total number of pages in the attestation clause is treated more strictly. The omission of this specific detail is often considered a fatal defect. Furthermore, attempting to cure this omission by referring to another part of the will, like the acknowledgment, becomes problematic if there is a discrepancy, as in your case (7 pages mentioned vs. 8 actual pages). Such a discrepancy necessitates the presentation of evidence aliunde (external evidence) to explain it. The principle often cited emphasizes this limitation:

“The rule [of substantial compliance] must be limited to disregarding those defects that can be supplied by an examination of the will itself… 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.” (Emphasis supplied, based on established jurisprudence interpreting Art. 809)

Therefore, the complete omission of the number of pages in the attestation clause, coupled with a discrepancy in the number mentioned in the acknowledgment versus the actual physical count, presents a significant challenge to the probate of your uncle’s will. Courts strictly adhere to the formalities mandated by law to prevent potential fraud, and relying on external evidence to cure such defects related to the page count is generally disfavored.

Practical Advice for Your Situation

• Confirm the Omission: Double-check the attestation clause signed by the witnesses. Confirm definitively that it completely omits the statement of the total number of pages used.
• Document the Discrepancy: Clearly establish the difference between the number of pages stated in the acknowledgment (7) and the actual physical count (8).
• Understand the Legal Hurdle: Recognize that the omission of the page count in the attestation clause is considered a significant formal defect under Article 805 of the Civil Code.
• Assess Substantial Compliance Argument: Be aware that arguing for substantial compliance under Article 809 is difficult in this specific situation, as the defect (omission of page count) and the discrepancy likely require external evidence, which goes against the principle of relying solely on the will itself for such corrections.
• Prepare for Opposition: Your cousins’ opposition based on this formal defect has a strong legal basis according to established jurisprudence. Be prepared for the court to potentially disallow the probate of the will.
• Consult Witnesses and Notary (with caution): While their testimony about the actual events might be presented, it generally cannot cure the defect apparent on the face of the will regarding the attestation clause requirement.
• Consider Intestate Succession: If the will is ultimately disallowed due to the formal defects, your uncle’s estate will be distributed according to the rules of intestate succession (distribution as if there was no will). Understand who the legal heirs are under this scenario.
• Seek Experienced Counsel: Engage a lawyer specializing in succession law and probate proceedings immediately. They can review the will thoroughly, assess the strength of the opposition, and advise you on the best legal strategy moving forward within the probate court.

Mario, facing the potential invalidity of a loved one’s will due to formalities is undoubtedly difficult. While the law is strict, its purpose is to protect the integrity of the testamentary process. It is crucial to navigate this situation with proper legal guidance to understand the likely outcomes and protect the interests of the rightful heirs according to law.

Hope this helps!

Sincerely,
Atty. Gabriel Ablola

For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.