ii. Letters Testamentary (Rules 78–79)

ALLOWANCE OR DISALLOWANCE OF WILLS

LETTERS TESTAMENTARY AND OF ADMINISTRATION

Letters Testamentary

The authority issued to an executor named in the will when a will has been proved and allowed and the person named therein is competent, accepts the trust and gives a bond.

Several Co-Executors Named in the Will But Not All Can Act

If all of the named co-executors cannot act because of incompetency, refusal to accept the trust, or failure to give bond on the part of one or more of them, letters testamentary may issue to such of them as are competent, or who accept the trust, or give bond, and they may perform the duties and discharge the trust required by the will. (R78, S5)

Revised Circular No. 28-91 and Administrative Circular No. 04-94 of the Court require a certification against forum shopping for all initiatory pleadings filed in court. However, in this case, the petition for the issuance of letters testamentary is not an initiatory pleading but a mere continuation of the original petition for the probate of Dr. Nittscher’s will. Hence, respondent’s failure to include a certification against forum shopping in his petition for the issuance of letters testamentary is not a ground for outright dismissal of the said petition. (Nittscher v. Nittscher, G.R. No. 160530, 2007)

Who may oppose issuance

Any interested person in the will can oppose. Such opposition should state the grounds why the letters testamentary should not issue in writing and he may attach a petition for letters of administration with the will annexed. (R79, S1)

Grounds for Opposing

• In Letters Testamentary
• Incompetence
• Refusal of trust
• Failure to give bond
• In Letters of Administration
• Incompetence
• Preferential right under Section 6, Rule 78 of the Rules of Court

Executor’s Bond

An executor may serve without bond if the testator in his will stipulates such condition. However, the court may require that the executor file a bond in case of a change in his circumstances or for other sufficient cause with the conditions stipulated in Section 1, Rule 81 of the Rules of Court.