G.R. No. L-2415; July 31, 1950
Testate Estate of the Late Paula Toray. Eustaquia Tenefrancia, petitioner-appellant, vs. Rosa Abaja, oppositor-appellee.

FACTS

Petitioner-appellant Eustaquia Tenefrancia sought the probate of a will executed by Paula Toray in August 1943. The will was opposed by Rosa Abaja, the daughter of Eulogia Abaja, who was the instituted heir in an earlier will executed by the same testatrix and her deceased husband. The Court of First Instance of Negros Occidental denied probate, finding the will fatally defective because its attestation clause failed to state that the testatrix signed the will in the presence of the three instrumental witnesses, as required by law.

ISSUE

Whether the will was executed in accordance with the formalities prescribed by law, specifically whether the attestation clause’s failure to state that the testator signed the will in the presence of the witnesses is a fatal defect that invalidates the will.

RULING

No. The will is invalid and was properly denied probate. The attestation clause did not comply with the mandatory requirement under Section 618 of Act No. 190 , as amended by Act No. 2645, which mandates that the attestation clause must state, among other things, “the fact that the testator signed the will and every page thereof … in the presence of three witnesses.” The clause in question only certified that the witnesses signed in the presence of the testatrix, but omitted the required statement that the testatrix signed in the presence of the witnesses. This defect is fatal and cannot be cured by evidence aliunde (external evidence), even if such evidence proves the testatrix actually signed in the witnesses’ presence. The law on wills requires strict compliance with statutory formalities. The Court affirmed the lower court’s order denying probate.

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