i. Allowance or Disallowance of Will (Rules 76– 77)

Extent of jurisdiction of the probate court.

Probate. A proceeding to establish the validity of a will.

The instruments have a testamentary character, which may be either:

• Disposition of property; or
• Appointment of executor

Duty of Probate Court to Look Into Extrinsic Validity of the Will; Exception

General Rule: The probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. (Acain v. IAC, G.R. No. 72706, 1987).

Exception: However, when practical considerations demand, the intrinsic validity of the will may be passed upon like when on its face there is really preterition or invalid disinheritance making the will void. (Maninang v. CA, G.R. No. L-57848, 1982)

The general rule is that the probate court’s authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator’s testamentary capacity and compliance with the solemnities prescribed by law. The intrinsic validity normally comes after the court declared that the will has been duly authenticated. However, the rule is not without exceptions. The probate court is not powerless to pass upon certain provisions of the will. (Acain v. IAC, G.R. No. 72706, 1987)

Custodian of the Will

The person who has custody of the will shall deliver the will to the court having jurisdiction or to the executor named in the will within twenty (20) days after knowledge of death of testator. (R75, S3)

Who May Petition For Probate of Will

• Executor;
• Devisee/legatee named in the will;
• Testator himself during his lifetime;
• Any creditor: as a preparatory step for filing of his claim therein.
• Any person interested in the estate; (R76, S1)

Note: All of the above mentioned may petition for the probate of the will whether the same be in his possession or not, or is lost or is destroyed.

Jurisdictional requirements for proving wills

A hearing shall be set by the court for proving the will after the will has been delivered to or a petition for allowance of a will has been filed in the court. This is for the purpose of allowing those who are concerned to protest. (R76, S3)

Notice of such time and place of proving the will shall be published for three (3) weeks successively in a newspaper of general circulation. But this requirement is not necessary IF the probate has been filed by the testator himself. (R76, S4)

Three (3) weeks successively is not strictly twentyone days. It is sufficient that publication has been made once (1) a week successively three (3) times, even if less than twenty-one (21) days intervened between the first and last publication. (Basa v. Mercado, G.R. No. L-42226, 1935)

Persons entitled to notice

• Designated or other known heirs, legatees and devisees;
• Executor and co-executor if not the petitioner (R76, S4)

If it is the testator himself who asks for the allowance of his own will, notice shall only be required to be given to his compulsory heirs. (R76, S4)

How Notice is Given

• By Mail – at least twenty (20) days before hearing
• Personal Service – at least ten (10) days before hearing. (R76, S4)

Persons Entitled to Notice

Notice is required to be personally given to known heirs, legatees and devisees of the testator. However in this case, a perusal of the will would indicate that respondent was instituted as the sole heir of the decedent. Petitioners are merely nephews and nieces of the decedent, and they are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings. Respondent has no legal obligation to mention petitioners in the petition for probate nor to personally notify them about the same. (Alaban v. CA, G.R. No. 156021, 2005)

The personal service of notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite. (In Re Estate of Emil H. Johnson, G.R. No. 12767, 1918; In Re Estate of Deceased Jose B. Suntay, G.R. Nos. 3087 and 3088, 1954; Abut, et al. v. Abut, et al. G.R. No. L-26743, 1972)

However, where the names of the heirs and their residences are known, notices of the hearing of the petition in accordance with Section 4, Rule 76 must be forwarded to them and such requirement cannot be satisfied by mere publication. (De Aranz, et al. v. Galing, et al., G.R. No. 77047, 1988)

Requisites of a Notarial Will

• Subscription

The will must be subscribed (signed) at the end thereof by:

• The testator himself; or by
• The testator’s name written by some other person
• Attestation by witnesses

The act of 3 or more credible witnesses of witnessing the execution of the will in the presence of the testator and of one another in order to see and take note mentally that such will has been executed in accordance with the requirements prescribed by law

• Marginal signatures

The testator or the person requested by him to write his name, and the instrumental witnesses of the will must affix their signatures on the left margin of each and every page of the will, except:

• In the last pages, when the will consists of two or more pages;
• When the will consists of only one page; and
• When the will consists of two pages, the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and the witnesses, and the second contains only the attestation clause duly signed at the bottom by the witnesses
• Page numbering

All the pages shall be numbered correlatively in letters placed on the upper part of each page. This is not necessary when the will is written on one sheet only

• Attestation Clause - this contains:
• The number of pages used - upon which the will is written;
• That the testator signed (or expressly caused another person to sign) the will and every page thereof in the presence of the instrumental witnesses;
• That the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another
• Acknowledgment by Notary Public

Must be acknowledged before a notary public by the testator and the witnesses

Note: Date in a notarial will

The conflict between the dates appearing on the will does not invalidate the document, because the law does not even require that a [notarial] will be executed and acknowledged on the same occasion. More importantly, the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of the testator and of one another. The testator and the witnesses must acknowledge the will before a notary public. In any event, the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public and the instrumental witnesses. (Ortega v. Valmonte, G.R. No. 157451, 2005)

Contents of the Petition for Allowance of Will

• Jurisdictional Facts (DR)
• Testator’s death;
• Testator’s residence at the time of death OR the place where testator left estate, if he is a non-resident. (Palaganas v. Palaganas, GR No. 169144, 2011);
• The Names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;
• The probable Value and character of the property of the estate;
• The name of the person for whom Letters are prayed;
• If the will has not been delivered to the court, the name of the person having custody of it.

Note: No defect shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed. (Rule 76, Sec. 2)

The applicable law, therefore, confers jurisdiction on the RTC or the MTC over probate proceedings depending on the gross value of the estate, which value must be alleged in the complaint or petition to be filed. (Frianela v. Banayad Jr., G.R. No. 169700, 2009)

Proving a Lost or Destroyed Will; Requisites

Whether the will was a notarial or a holographic one, its loss or destruction may only be proved upon the concurrence of the following requisites:

• Its execution and validity are established
• It must have been in existence at the time of the testator’s death, or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge; and
• Its provisions must be clearly and distinctly proved by at least two credible witnesses (R76, S6)

Proof of Lost or Destroyed Notarial Will

A lost or destroyed notarial will may be proved by a photocopy of the same coupled with the testimony of the subscribing witness.

Testimony of Witness Other than Subscribing Witness

General Rule: With respect to a notarial will, the courts must examine the testimony of the subscribing witnesses.

Exceptions: The court may examine witnesses other than subscribing witnesses in the following instances:

• The subscribing witness is insane;
• The subscribing witness is dead; or
• None of the subscribing witnesses reside in the Philippines (R76, S7)

Photocopy of Holographic Will May Be Allowed

The probate of holographic wills is the allowance of the will by the court after its due execution has been proved. However, if the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. (Bonilla v. Aranza, G.R. No. L-58509, 1982)

Grounds for Disallowance of Will

• If the formalities required by law (execution and attestation) have not been complied with
• If the testator was insane, or otherwise mentally incapable of making a will at the time of its execution
• If it was executed through force or under duress, or the influence of fear or threats
• If it was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person
• If the signature of the testator was procured by fraud or trick
• If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto (R76, S9; Art. 839, NCC)

The list is exclusive. No other grounds can serve to disallow a will.

Petition to be filed in the Regional Trial Court.

The Regional Trial Court where such petition is filed shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance. (Rule 77, Secs. 1 and 2; Leon & Ghezzi v. Manufacturer Life Insurance Co, G.R. No. L-3677, 1951).

Requisites Before a Will Proved Abroad Will Be Allowed in the Philippines

• The testator had his domicile in a foreign country
• The will has been admitted to probate in such country – due execution of the will in accordance with foreign laws
• The fact that the foreign tribunal is a probate court with jurisdiction over the proceedings
• The law on probate procedure of the said foreign country and proof of compliance therewith
• The legal requirements in said foreign country for the valid execution of the will. (Vda. de Perez v. Tolete, G.R. No. 76714, 1994)

Foreign Laws Must be Proved

A person who seeks to reprobate a will executed in a foreign country must prove the laws and procedure of that foreign country on wills. (Ancheta v. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006)

In the absence of proof of the foreign law, it is presumed that it is the same as in the Philippines. (ATCI Overseas Corporation v. Echin, G.R. No. 178551, 2010)

The court having jurisdiction over the reprobate of a will shall cause notice thereof to be given as in the case of an original will presented for allowance. Thus, the publication and notice requirements as stated in Sections 3 and 4 of Rule 76 of the Rules of Court are required in the reprobate. (R77, S2)

The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. (Vda. de Perez v. Tolete, G.R. No. 76714, 1994)

Effects of Probate

After the finality of the allowance of a will, the issue as to the voluntariness of its execution (soundness of mind, formal requisites of the will) cannot be raised anymore. (Gallanosa v. Arcangel, G.R. No. L-29300, 1978).

Effects of Reprobate:

• The will shall have the same effect as if originally proved and allowed in the Philippines.
• Letters testamentary or administration with a will annexed shall extend to all estates in the Philippines.
• Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country.
• Any residue shall be disposed of as provided for estates in the Philippines belonging to persons who do not reside in the country (R77, S4)

Under Article 16 of the Civil Code, it is the national law of the decedent that is applicable. Article 1039 further provides that “capacity to succeed is governed by the law of the nation of the decedent.” As a corollary rule, Section 4, Rule 77 of the Rules provides that such estate after payment of just debts and expenses of administration shall be disposed of according to such will, so far as such will may operate upon it. Whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. In any case, the Court has also ruled that if land is invalidly transferred to an alien who subsequently becomes a citizen or transfers it to a citizen, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid. (Ancheta v. Guersey-Dalaygon, G.R. No. 139868, 2006)