FELIX AZUELA v. COURT OF APPEALS

G.R. No. 122880, April 12, 2006

RATIONALE: A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection.

FACTS: Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo. However, this was opposed by Geralda Castillo, who was the attorney-in-fact of “the 12 legitimate heirs” of the decedent. According to her, the will was forged, and imbued with several fatal defects. Particularly, the issue relevant in this subject is that the will was not properly acknowledged. The notary public, Petronio Y. Bautista, only wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.”

The RTC admitted the will to probate. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments that the will was not properly executed and attested to in accordance with law.

The Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate. The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.

Hence, the present petition.

ISSUE: Whether or not the will is fatally defective as it was not properly acknowledged before a notary public by the testator and the witnesses as required by Article 806 of the Civil Code.

RULING: Yes, the will is fatally defective. By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgement is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signore actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be “acknowledged,” and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator.