Pre-Week Civil Law - David and Gallego Notes (1)

PRE-WEEK REMINDERS – REMINDERS – BAR  BAR 2015  Atty. Jose Angelo David David and Atty. Atty. Erika Marie Marie V. Gallego Gallego PERSONS AND FAMILY RELATIONS Doctrine of processual presumption In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. The foreign law is treated as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only domestic or forum law. Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours. Thus, the International Law doctrine of  presumedidentity approach or approach or  processual presumption comes presumption  comes into play. (EDI-Staffbuilders (EDI-Staffbuilders Int’l., v. NLRC, NLRC, G.R. No. 145587, October 26, 2007) Property relations The following matrix summarizes the case of Diño v. Diño, G.R. No. 178044, January 19, 2011. 2011. Basis

Situation

Property regime

 Article 147

1. The man and the woman must be capacitated to marry each other; 2. They live exclusively with each other as husband and wife; and 3. Their union is without the benefit of marriage, or their marriage is void.

- Their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. - In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. - For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

 Article 36 cf.  Article 147

Void due to psychological incapacity

 Article 148

In cases of cohabitation not falling under Article 147

 Article 40

Same effect as above. Why? Article 147 of the Family Code applies to union of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void - Only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions.

- In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to  joint deposits of money m oney and evidences of credit.  A second or bigamous The bigamous marriage is governed marriage was contracted. either by absolute community of property or conjugal partnership of gains unless the parties agree to a complete separation of property in a marriage settlement entered into before the

Rules on liquidation Because the marriage is governed by the ordinary rules on coownership, the properties of the spouses should be liquidated in accordance with the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, "[p]artition may be made by agreement between the parties or by judicial proceedings." It is not necessary to liquidate the properties of the spouses in the same proceeding for declaration of nullity of marriage. Same as above

Same as above

There is a need to liquidate, partition and distribute the properties before a decree of annulment could be issued.

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PRE-WEEK REMINDERS – BAR 2015  Atty. Jose Angelo David and Atty. Erika Marie V. Gallego

 Article 45

Voidable marriages

marriage. Same as above

Same as above

The (not so) curious case of Benjamin… Bangayan Sally Bangayan v. Benjamin Bangayan, G.R. No. 201061, July 3, 2013 Benjamin and Azucena are married. During the subsistence of this marriage, Benjamin developed a romantic relationship with Sally. Benjamin and Sally signed a purported marriage contract without a marriage license. Subsequently, Benjamin filed a petition for declaration of a non-existent marriage and/or declaration of nullity of marriage. What rule governs the property relations between Benjamin and Sally? Article 148. Why? Benjamin and Sally cohabited without the benefit of marriage but during the subsistence of Benjamin’s marriage with Azucena. Therefore, Article 147 does not apply.  Another issue resolved by the Supreme Court is whether the marriage between Benjamin and Sally is bigamous. Is it? No. For bigamy to exist, the second or subsequent marriage must have all the essential requisites for validity except for the existence of a prior marriage. In this case, there was really no subsequent marriage. Benjamin and Sally just signed a purported marriage contract without a marriage license. In short, the marriage between Benjamin and Sally did not exist. They lived together and represented themselves as husband and wife without the benefit of marriage. “Limited purpose” marriages are valid for as long as all elements of a valid marriage are satisfied Republic of the Philippines v. Liberty Albios, G.R. No. 198780, October 16, 2013 Marriages where a couple marries only to achieve a particular purpose or acquire specific benefits, have been referred to as "limited purpose" marriages. A common limited purpose marriage is one entered into solely for the legitimization of a child. Another, which is the subject of the present case, is for immigration purposes – in order for Albios to acquire American citizenship. Is the marriage valid? Yes.  Albios and Fringer had an undeniable intention to be bound in order to create the very bond necessary to allow Albios to acquire American citizenship. Only a genuine consent to be married would allow them to further their objective, considering that only a valid marriage can properly support an application for citizenship. There was, thus, an apparent intention to enter into the actual marriage status and to create a legal tie, albeit for a limited purpose. Genuine consent was, therefore, clearly present. Marriages entered into for other purposes, limited or otherwise, such as convenience, companionship, money, status, and title, provided that they comply with all the legal requisites, are equally valid. An unborn child is considered a dependent Continental Steel Mfg. Corp. v. Hon. Accredited Voluntary Arbitrator Montaño, G.R. No. 182836, October 13, 2009 Hortillano is an employee of Continental Steel. He filed a claim for Paternity Leave, Bereavement Leave and Death and Accident Insurance for dependent under the CBA. The claim was based on the death of Hortillano’s unborn child. Hortillano’s wife had a premature delivery while she was in the 38th week of pregnancy. Continental Steel immediately granted Hortillanos claim for paternity leave but denied his claims for bereavement leave and other death benefits, consisting of the death and accident insurance. Continental Steel, relying on Articles 40, 41 and 42 of the Civil Code, contended that only one with civil personality could die. Hence, the unborn child never died because it never acquired juridical personality. Hence, the term dependent  (to avail of bereavement pay under the CBA with Continental Steel) could not be applied to a fetus that never acquired juridical personality. Rule on the contention. First, the issue of civil personality is not relevant herein. The rights to bereavement leave and other death benefits in the instant case pertain directly to the parents of the unborn child upon the latter ’s death. Second, Sections 40, 41 and 42 of the Civil Code do not provide at all a definition of death. Moreover, while the Civil Code expressly provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical personality could die.  And third, death has been defined as the cessation of life. Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life. Thus, the unborn child can be considered a dependent under the CBA. That in all things, God may be glorified! | 2

PRE-WEEK REMINDERS – BAR 2015  Atty. Jose Angelo David and Atty. Erika Marie V. Gallego

Expert opinions in nullity of marriage cases on the ground of psychological incapacity Valerio Kalaw v. Ma. Elena Fernandez, G.R. No. 166357, January 14, 2015 In the task of ascertaining the presence of psychological incapacity as a ground for the nullity of marriage, the courts, which are concededly not endowed with expertise in the field of psychology, must of necessity rely on the opinions of experts in order to inform themselves on the matter, and thus enable themselves to arrive at an intelligent and judicious judgment. Indeed, the conditions for the malady of being grave, antecedent and incurable demand the in-depth diagnosis by experts. Further, the findings of the Regional Trial Court (RTC) on the existence or non-existence of a party’s psychological incapacity should be final and binding for as long as such findings and evaluation of the testimonies of witnesses and other evidence are not shown to be clearly and manifestly erroneous. PROPERTY Art 415 on mach inery; exception; exception to exception

Machinery which is movable in its nature only becomes immobilized when placed in a plant by the owner of the property or plant, b u t n o t w h e n   so placed by a tenant, a usufructuary, or any person having only a temporary right, u n l e s s such person acted as the agent of the owner (Davao Saw Mill Co., Inc. v. Castillo, G.R. No. L-40411, August 7, 1935). R u l e s o n h i d d e n t r e as u r e

 Article 439, NCC defines hidden treasure as “any hidden an d  unknown deposit of money, jewelry or other previous objects, the lawful ownership of which does not appear. ” Ownership of hidden treasure is provided under Article 438, NCC, thus: Property where treasure was found Private property Private property or public property

Characteristic of finder Owner of the private property Third person/not owner of property/not trespasser

Nature discovery Intentional chance By chance

Private property

Third person/not owner of property/not trespasser

Intentional

Private property

Third person/ trespasser

Intentional chance

of

or

or

Owner of hidden treasure by Owner of the private property Half shall belong to owner, half to the finder Owner of the private property (Note conflicting definitions of “by chance”. in such a case, pick a side and  just defend your answer by citing legal basis.) by Owner of the private property

Ar ticle 448, NCC: Rosales v. Castelltort G.R. No. 157044, Oct ob er 5, 2005

Facts: Rosales was the registered owner of Lot 17. He later discovered that Castelltort built a house on Lot 17, without his knowledge and consent. On August 21, 1995, Rosales informed Castelltort that he was the registered owner of the parcel of land upon which Castelltort’s house was constructed. Castelltort alleged that he purchased Lot 16 of the same Subdivision Plan from one Lina, but that after a survey thereof by the geodetic engineer some time in 1992, the latter pointed to Lot 17 as the Lot 16 which the Castelltort’s purchased. Issue: Is Castelltort a builder in good faith? What are the rights of Rosales and Castelltort?

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PRE-WEEK REMINDERS – BAR 2015  Atty. Jose Angelo David and Atty. Erika Marie V. Gallego Held: Prior to purchasing Lot 16 from Lina, Castelltort went to the Registry of Deeds to procure a certified true copy of the title over said property. The certified true copy bore no annotation indicating any prior adverse claim on Lot 16. Thus, Castelltort was a builder in good faith. However, Castelltort’s good faith ended on August 21, 1995, when he was informed by Rosales of the latter’s ownership of the subject lot. Up until August 21, 1995, Rosales and Castelltort’s rights were governed by Art. 448, NCC. Under said provision, the landowner can choose between (a) appropriating the building by paying the proper indemnity; or (b) obliging the builder to pay the price of the land, unless its value is considerably more than that of the structures, in which case the builder in good faith shall pay reasonable rent. If the parties cannot come to terms over the conditions of the lease, the court must fix the terms thereof. The choice belongs to the owner of the land, a rule that accords with the principle of access, i.e., that the accessory follows the principal. Even as the option lies with the landown er, the grant to him, nevertheless, is preclusive. The lando wner canno t refuse to exercise either option and com pel i n s t e ad t h e o w n e r o f t h e b u i l d i n g t o r e m o v e i t f r o m t h e l an d .

Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possess the thing improperly or wrongfully. The good faith ceases or is legally interrupted from the moment defects in the title are made known to the possessor, by extraneous evidence or by suit for recovery of the property by the true owner. In this case, Castelltort’s good faith ceased on August 21, 1995 when Rosales personally apprised him of their title over the questioned lot. Should Rosales then opt to appropriate Castelltort’s house, he should only be made to pay for that part of the improvement built by Castelltort at the time good faith still existed or until August 21, 1995, pegged at its current fair market value. Moreover, should Rosales opt to appropriate the house, Castelltort’s payment of reasonable rent should start on August 21, 1995, to be paid until such time that the possession of the property is delivered to Rosales, subject to the reimbursement of expenses. A l e s s e e i s n e i t h e r a b u i l d e r i n g o o d f a i th n o r i n b a d f a i t h t h a t w o u l d c a l l f o r t h e a p p l i c at i o n of A rts. 448 and 546 of th e NCC. His right s are always gov erned by Art. 1678, NCC (Sulo

sa Nayon, Inc. v. Nayong Pilipino Foundation (G.R. No. 170923, January 20, 2009).  Art. 448 in relation to Art. 546 covers only cases in which the builders, sowers or planters believe themselves to be owners of the land or, at least, have a claim of title thereto, but not when the interest is merely that of a holder, such as a mere tenant, agent or usufructurary. A tenant cannot be said to be a builder in good faith as he has no pretension to be an owner. (Parilla v. Pilar, G.R. No. 167681, November 30, 1996)  At all events, under Art. 1678, it is the lessor who is given the option, upon termination of the lease contract, either to appropriate the useful improvements by paying one-half of their value at that time, or to allow the lessee to remove the improvements. (Parilla v. Pilar, id.) O r a l p a rt i t i o n i s v a l i d a n d n o t g o v e r n e d b y statute of frauds.

 An agreement of partition may be made orally or in writing. An oral agreement for the partition of the property owned in common is valid and enforceable upon the parties. The Statute of Frauds has no operation in this kind of agreements, for partition is not a conveyance of property but simply a segregation and designation of the part of the property which belong to the co-owners (Vda. De Espina v. Abaya, G.R. No. L-45142, April 26, 1991). Art. 559 vs. Art. 1506, recovery by o wner o f stolen personal property : Aznar v. Yapdiangco, G.R. No. L-18536, March 31, 1965

Facts: Teodoro Santos advertised a car for sale. Thereafter, one De Dios, claiming to represent a certain Vicente Marella, went to the Santos residence and expressed interest to buy the car. As only Teodoro’s son, Irineo, was present, Teodoro instructed Irineo to attend to De Dios’ queries. The following day, upon his father’s instructions, Irineo met with Marella. Marella agreed to purchase the car for Php14,700.00 on the understanding that the price would be paid only after the car had been registered in his name. That in all things, God may be glorified! | 4

PRE-WEEK REMINDERS – BAR 2015  Atty. Jose Angelo David and Atty. Erika Marie V. Gallego

Irineo accompanied Marella to have the car registered. However, when asked for the full purchase price, Marella represented that he was Php2,000.00 short and had to get money from his sister. Irineo then went with Marella and another person to the latter’s sister. While Irineo was with Marella to supposedly borrow the balance of the purchase price, the third person drove the car away, along with the registration papers. On the same day, Marella was able to sell the car to Aznar. While the car in question was thus in the possession of Aznar and while he was attending to its registration in his name, agents of the Philippine Constabulary seized and confiscated the same in consequence of the report to them by Teodoro that said car was unlawfully taken from him. Azanr filed a complaint for recovery against the head of the Philippine Constabulary unit. In the course of the litigation, however, Teodoro Santos moved and was allowed to intervene by the lower court. Issue: Who between Teodoro and Aznar has the right over the subject motor vehicle? Held: Teodoro has the right over the subject motor vehicle. Aznar accepts that the car in question originally belonged to and was owned by the Teodoro, and that the latter was unlawfully deprived of the same by Marella. However, Aznar contends that upon the facts of this case, the applicable provision of the Civil Code is Article 1506 and not Article 559. Article 1506 provides:  ART. 1506. Where the seller of goods has a voidable title thereto, but his, title has not been voided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title. The contention is clearly unmeritorious. Under the aforequoted provision, it is essential that the seller should have a voidable title at least. It is very clearly inapplicable where, as in this case, the seller had no title at all. Marella did not have any title to the property under litigation because the same was never delivered to him. He sought ownership or acquisition of it by virtue of the contract. Marella could have acquired ownership or title to the subject matter thereof only by the delivery or tradition of the car to him. In the case on hand, the car in question was never delivered to the vendee by the vendor as to complete or consummate the transfer of ownership by virtue of the contract. It should be recalled that while there was indeed a contract of sale between Marella and Teodoro, the former, as vendee, took possession of the subject matter thereof by stealing the same while it was in the custody of the latter's son. There is no adequate evidence on record as to whether Irineo voluntarily delivered the key to the car to the unidentified person who went with him and Marella. But even if Irineo did, it was not the delivery contemplated by Article 712 of the Civil Code. For then, it would be indisputable that he turned it over to the unidentified companion only so that he may drive Irineo and Marella to the supposed residence of Marella’s sister and not to vest the title to the said vehicle to him as agent of Marella.  Artic le 712 above c o n t e m p l a t e s t h a t t h e a c t b e c o u p l e d w i t h t h e i n t e n t o f d e l i v er i n g t h e t h i n g . C a s in o c h i p s m a y b e a f o r m o f v a l i d p a y m e n t .

Though casino chips do not constitute legal tender, there is no law which prohibits their use or trade outside of the casino which issues them. In any case, it is not unusual  –  nor is it unlikely  –  that respondent could be paid by his Chinese client at the former' s car shop with the casino chips in question; said transaction, if not common, is nonetheless not unlawful. These chips are paid for anyway; petitioner would not have parted with the same if their corresponding representative equivalent - in legal tender, goodwill, or otherwise  –  was not received by it in return or exchange (Subic Bay Legend Resorts and Casinos, Inc. v. Fernandez, G.R. No. 193426, September 29, 2014). Distinctions between donation inter vivos and donation mortis causa

Inter vivos

Mortis causa

Legal basis

 Article 726, NCC

Article 728, NCC

Formalities

The execution and acceptance must comply with the provisions of Article 748 (for

Must be in the form of wills, with all the formalities for the validity

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PRE-WEEK REMINDERS – BAR 2015  Atty. Jose Angelo David and Atty. Erika Marie V. Gallego personal property) or 749 (for real property), except when it is onerous in which case the rules on contracts will apply (Ganuelas v. Cawed, G. R. No. 123968, 24 April 2003)

of wills, otherwise it is void and cannot transfer ownership (Ganuelas v. Cawed, id.)

Transfer of ownership to donee

Upon acceptance of the donee.

Upon the death of the donor

Effect of death of donor

Survival of donor has no effect

Donation survives

Effect of death of done before the donor

No effect

Donation is void if the donee dies ahead of the donor

is

void

is

donor

N.B. In Spouses Sicad v. Court of Appeals (G.R. No. 125888, 13 August 1998), the Supreme Court ruled that “a donation which purports to be one inter vivos but withholds from the donee the right to dispose of the donated property during the donor's lifetime is in truth one mortis causa.”

Balaqui v. Dongso G.R. No. L-31161 October 28, 1929 Facts: The disposition was worded in this wise: “This gift to said Placida Dongso  resident of Candon, Ilocos Sur, Philippine Islands, in recompense for her services to me, does not pass title to her during my lifetime; but when I die, she shall be the true owner of the two aforementioned parcels, including my house and shed thereon, and she shall be rightfully entitled to transmit them to her children. I also bind myself to answer to said Placida and her heirs and successors for this property, and that none shall question or disturb her right. ” Ruling: The donation was inter vivos  and irrevocable, and not mortis causa, notwithstanding the fact that the donor stated in said deed that she did not transfer the ownership of the two parcels of land donated, until upon her death, for such a statement could mean nothing else than that she only reserved to herself the possession and usufruct of said property, and because the donor could not very well guarantee the aforesaid right after her death . Article 751, NCC; prohibit ion on d onation of future property

 Article 751 of the Civil C ode provides: Donations cannot comprehend future property. By future property is understood anything which the donor cannot dispose of at the time of the donation. Osorio v. Osorio G.R. No. L-16544 March 30, 1921 To close these fundamental ideas which the spirit of articles 634 (now Art. 750, NCC) and 635 (now Art. 751, NCC) develops we must fix our attention to the definition which the Code gives of future properties. They are those of which the donor cannot dispose at the time of making the donation. This definition in reality includes all properties which belong to others at the time of the donation, although they may or may not later belong to the donor  x x x Republic v. Court of Appeals and Alejandro De Jesus G.R. No. L-40912 September 30, 1976 Donations of parcels of land subject of a sales patent It is true that the gratuitous disposal in donation may consist of a thing or right. But the term "right" must be understood in a "propriety" sense, over which the processor has the jus disponendi. This is because, in true donations, there results a consequent impoverishment of the donor or diminution of his assets. Eugenio de Jesus cannot be said to be possessed of that "proprietary" right over the whole 33 hectares in 1936 including the disputed 12.8081 hectares for at that time this 12.8081-hectare lot had already been severed from the mass of disposable public lands by Proclamation No. 85 and excluded in That in all things, God may be glorified! | 6

PRE-WEEK REMINDERS – BAR 2015  Atty. Jose Angelo David and Atty. Erika Marie V. Gallego the Sales Award. Impoverishment of Eugenio's assets as a consequence of such donation is therefore farfetehed. In fact, even if We were to assume in gratia argumenti   that the 12.8081-hectare lot was included in the Sales Award, still the same may not be the subject of donation. In Sales Award, what is conferred on the applicant is merely the right "to take possession of the land so that he could comply with the requirements prescribed b y law." In other words, the right granted to the sales awardee is only "possessory right" as distinguished from "proprietary right," for the fundamental reason that prior to the issuance of the sales patent and registration thereof, title to the land is retained by the State. F o r m a l i t ie s o f d o n a t i o n s

Donation of p e r s o n a l p r o p e r t y   must comply with the requisites of Art . 748, NCC  , particularly: Delivery

Acceptance

Oral donation – value of property d o e s n o t e x c e ed    Php5,000.00

Simultaneous delivery of the thing or of the document representing the right donated

May be oral or in writing

Oral donation – value of property exceeds    Php5,000.00

Simultaneous delivery of the thing or of the document representing the right donated

Only in writing, otherwise, the donation is void.

Donation in writing - value of No simultaneous property does not exceed  required for validity Php5,000.00

delivery

May be oral or in writing

Donation in writing  –  value of property exceeds   Php5,000.00

delivery

Only in writing, otherwise, the donation is void.

No simultaneous required for validity

Donations of real prop erty  must comply with the requisites under Art. 749 of the NCC , particularly: 1.

The donation must be in a public instrument, specifying the property donated and the burdens assumed by the donee, regardless of the value;

2.

The acceptance by the donee must either be (a) in the same public instrument; or (b) in another public instrument, provided that in the latter case, the donor shall be notified thereof in an authentic form. The fact of notification to the donor must be annotated in the instrument of donation. Abellara v. Balanag, et al. G.R. No. L-11970 March 22, 1918

 An indispensable requisite to the perfection and validity of a gift of real estate that the gift be accepted in a public document; and that the title to real estate does not pass from the donor to the donee by virtue of a deed of gift, until and unless the gift is accepted in a public document and the donor duly notified of its acceptance. A p o o l i s n o t a n a t t r a c t iv e n u i s a n c e u n l e s s i t is made more than a mere body o f water. A t t r a c t i v e n u i s a n c e d o c t r i n e -   One who maintains on his premises dangerous instrumentalities or

appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, i n t h e a b s e n c e o f s o m e u n u s u a l c o n d i t i o n o r a r t i f i c i al f e a tu r e   other than the mere water and its location. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained, thus: Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger … (he) is not liable because of having created an "attractive nuisance."

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PRE-WEEK REMINDERS – BAR 2015  Atty. Jose Angelo David and Atty. Erika Marie V. Gallego SUCCESSION Baltazar v . Laxa, G.R. No. 174489, April 11, 2 01 2 in r e : u n s o u n d m i n d

The state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will. Forgetfulness is not equivalent to being of unsound mind. In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the time of the execution of the Will. On the other hand, we find more worthy of credence Dra. Limpins testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpins house and voluntarily executed the Will. The testimony of subscribing witnesses to a Will concerning the testators mental condition is entitled to great weight where they are truthful and intelligent. More importantly, a testator is presumed to be of sound mind at the time of the execution of the Will and the burden to prove otherwise lies on the oppositor. Subscription

Nera, et al. v. Rimando G.R. No. L-5971. February 27, 1911 The position of testator and of the witnesses to a will, at the moment of the subscription by each, must be such that they may see each other sign if they choose to do so. The question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but whether at that moment existing conditions and the position of the parties, with relation to each other, were such that by merely casting their eyes in the proper direction they could have seen each other sign. Attestation clause (Art. 805, NCC)

The attestation clause shall contain: (a) number of pages upon which the will was written; (b) 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 (c) the instrumental witnesses saw and signed the will and all the pages thereof in the presence of the testor and of one another. If attestation clause is in a language not known to the witnesses, it shall be interpreted to them. N.B. The rule on substantial compliance applies only to (a) the form of the attestation clause; and (b) the

language of the attestation clause (Art. 809, NCC). Azuela v. Court of Appeals G.R. No. 122880 April 12, 2006 The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. 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 . The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to.

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