1. Gan v.

Yap | 104 Phil 509 (1958)

FACTS:

Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan, and in Manila.

Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFI with a petition for the probate of a
holographic will allegedly executed by the deceased. The will was not presented because Felicidad’s
husband, Ildefonso, supposedly took it. What was presented were witness accounts of relatives who
knew of her intention to make a will and allegedly saw it as well. According to the witnesses, Felicidad did
not want her husband to know about it, but she had made known to her other relatives that she made a
will.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any
will, nor executed any testament during her lifetime. After hearing the parties and considering their
evidence, the Judge refused to probate the alleged will on account of the discrepancies arising from the
facts. For one thing, it is strange that Felicidad made her will known to so many of her relatives when she
wanted to keep it a secret and she would not have carried it in her purse in  the hospital, knowing that her
husband may have access to it. There was also no evidence presented that her niece was her confidant.

In the face of these improbabilities, the trial judge had to accept the oppositor’s evidence that Felicidad
did not and could not have executed such holographic will.

ISSUE:

1. May a holographic will be probated upon the testimony of witnesses who have allegedly seen it
and who declare that it was in the handwriting of the testator?

2. W/N Felicidad could have executed the holographic will.

HELD:

1. No. The will must be presented.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. “A person may
execute a holographic will which must be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form and may be made in or out of the Philippines, and need not be
witnessed.”

This is a radical departure from the form and solemnities provided for wills under Act 190, which for  fifty
years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in
each and every page; such witnesses to attest to the number of sheets used and to the fact that the
testator signed in their presence and that they signed in the presence of the testator and of each other.
Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to
the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be
sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. From the
testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the
genuineness and authenticity of the testament, and the circumstances its due execution.

With regard to holographic wills, no such guaranties of truth and veracity are demanded, since as stated,
they need no witnesses; provided however, that they are “entirely written, dated, and signed by the hand
of the testator himself.”
“In the probate of a holographic will” says the New Civil Code, “it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall
be required. In the absence of any such witnesses, (familiar with decedent’s handwriting) and if the court
deem it necessary, expert testimony may be resorted to.”

The witnesses need not have seen the execution of the holographic will, but they must be familiar with the
decedent’s handwriting. Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity — the testator’s
handwriting — has disappeared.

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by
secondary — evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could
not have contemplated holographic wills which could not then be validly made here. Could Rule 77 be
extended, by analogy, to holographic wills? (NO)

Spanish commentators agree that one of the greatest objections to the holographic will is that it may be
lost or stolen — an implied admission that such loss or theft renders it useless.

As it is universally admitted that the holographic will is usually done by the testator and by himself alone,
to prevent others from knowing either its execution or its contents, the above article 692 could not have
the idea of simply permitting such relatives to state whether they know of the will, but whether in the face
of the document itself they think the testator wrote it. Obviously, this they can’t do unless the will itself is
presented to the Court and to them.

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the
Spanish Civil Code provisions on the matter.(According to the Fuero, the will itself must be compared with
specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in accordance with
his holographic will, unless they are shown his handwriting and signature.

Taking all the above circumstances together, we reach the conclusion that the execution and the contents
of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have
seen and/or read such will.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills,
ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the
nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing
witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately
to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular
day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if
they were intimates or trusted friends of the testator they are not likely to end themselves to any
fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of
the will.

Whereas in the case of holographic wills, if oral testimony were admissible only one man could engineer
the fraud this way: after making a clever or passable imitation of the handwriting and signature of the
deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the
latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in
an “accident” — the oppositors have no way to expose the trick and the error, because the document
itself is not at hand. And considering that the holographic will may consist of two or three pages, and only
one of them need be signed, the substitution of the unsigned pages, which may be the most important
ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of
forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman
and Valverde and other well-known Spanish Commentators and teachers of Civil Law.

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they
allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the
evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to
measure up to that “clear and distinct” proof required by Rule 77, sec. 6.

2. No. Even if oral testimony were admissible to establish and probate a lost holographic will, we think the
evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to
measure up to that “clear and distinct” proof required by Rule 77, sec. 6.