Rule 76Allowance and Disallowance

of Will Text

Who may file a petition for probate of a will?

• Executor• Devisee• Legatee• Testator• Any interested party

Interested Party is a person who would be benefited by the estate either as an heir or a claimant.

When must a will be presented for probate?• at any time after the death of the

testator• during his lifetime

Contents of Petition• The jurisdictional facts• Names,ages, residence of the

heirs,legatees, devisees of the testator or decedent.

• Character and value of the estate,• Person prayed to be the administrator

Person in possession of the will.

When does the court acquire jurisdiction over interested persons and res?

• Upon PUBLICATION for 3 weeks successively of the order setting the case for hearing AND sending NOTICES to all persons interested.

ANTE MORTEM

No publication is necessary when the probate is done by the testator himself during his lifetime and notice shall be made only to the compulsory heirs.

Modes of Notifying: Notice must be given to the designated or known heirs, legatees, devisees, executor or co-executor •Through mail: 20 days before the hearing.•Personal Notice: 10 days before the hearing.

Proof at hearing (Uncontested will)

• Notarial will- at least one subscribing witness should testify as to the due execution of the will.

• Holographic will- at least one witness to prove the handwriting and the signature of he testator.

Proof of lost or destroyed will • due execution and validity of the will;• will was in existence when testator died, or

if it was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and

• the provisions of the will are clearly established by at least two

credible witnesses.

Proof when witness do not reside in the province

Deposition is done in an office outside the court to refresh the memory of the witness or to impeach their testimony. It is usually used where the deponent has become unavailable.

How will the deposition be taken?A copy of the will shall be sent along with the questions drafted by both parties and the witnesses shall be examined regarding the will as if he testified in court.

Proof when witnesses dead or insane or do not reside in the Philippines

The court may admit the testimony of other witnesses to prove the sanity of the testator and the due execution of a will. It may admit testimony of 1

witness to prove the handwriting of the testator.

Meaning of Due Execution• That the will was executed strictly in accordance

with the formalities required by law• That the testator was of sound and desposing

mind at the time of its execution• That there was no vitiation of consent through

duress, fear or threats » That the signature of the testator is genuine.

If all the subscribing witnesses are dead, incompetent or unavailable, it will not prevent the establishment of the due execution and attestation of the will as long as its essentials are proved.If the proponent cannot present all the subscribing witnesses, proof of will by non-subscribing witness cannot be authorized.

Grounds for disallowance of will:

•If not excuted and attested as required by law;•If the testator was insane or otherwise mentally incapable at the time of its exeution;

If it was executed under duress or influence of fear or threats.

• If it was procured by undue and improper pressure and or on the part of beneficiary, or of some other person for his benefit.

• If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the of time of fixing his

• signature thereto.

Probate of a Notarial willFormal solemnities include subscription, attestation and acknowledgement.

Probate of a Holographic willIt must be autographic or must be entirely

written, dated and signed by the testator himself.

Subtantial Compliance If the will has been executed in substantial compliance with the formalities of law, and the possibility of fraud or badfaith is obviated, said will must be admitted for probate.

Separate wills which contain essentially the same provision and pertain to properties which are conjugal in nature, dictate their joint probate.

Contest to a will

• State the opposition in writing• Serve a copy on the petitioner and other

interested parties.

Contestant must:

Subscribing witness produced or accounted in a contested will

Notarial wills- ALL subscribing witnesses AND notary public. If any or all the witnesses (i) testify against the execution of the will, (ii) do not remember attesting thereto, or (iii) of doubtful credibility, the will may be allowed if the court is satisfied

from the testimony of other witnesses and

from all the evidence presented that the will was executed and attested in the manner required by law.

Holographic Wills - 3 witnesses who knows the handwriting of testator. In the absence thereof, testimony of an expert witness may

be resorted to.

GENERAL RULE: Holographic will if destroyed CANNOT be probated unless there exists a Photostat or Xerox copy thereof.

Probate of a Holographic will by the testatorIf the petition for probate is filed by the testator himself and where no contestion is filed, the will must be admitted for probate.If contested, the burden of proof of disproving its genuineness and due execution shall be

on the part of contestant.

Certificate of allowance attached to proved will

When the will has been proved, a certificate of allowance, signed by the judge and attested by the seal of the court shall be attached to the will and recorded by the clerk. Attested copies of devising real estate &certificate of allownce thereof shall be recorded in the Register of Deeds of the province which the lands lie.

Case: Sumilang v. Ramagosa

KRISTINA C. DE VERAKRISTINA C. DE VERA