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RULE 76

ALLOWANCE OR DISALLOWANCE OF WIL

SECTIONS 1-3

SECTION 1- WHO MAY PETITION FOR THE ALLOWANCE OF A WILL
                  a.  Any executor,
                  b.  devisee,

                  c.  or legatee named in a will,
                  d.  or any other person interested in the estate,
                  e.  The testator himself may, during his lifetime, petition the

                       court for the allowance of his will.
 

Acquiring jurisdiction

                  a. Attaching of mere copy of will sufficient .

                 b. Delivery of will sufficient even if no petition filed


 

SECTION 2- CONTENTS OF PETITION

 

      A petition for the allowance of a will must show, so far as known to the petitioner;
                  a.  Jurisdictional facts;
                  b.  The names, ages and residences of the heirs, legatees, and                           devisees of the testator or decedent;
                  c.  The probate value and character of the property of the

                       estate;
                  d.  The name of the person for whom letters are prayed;
                  e.  If the will has not been delivered to the court, the name of                           the person having custody of it.


      But no defect in the petition shall render void allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.


SECTION 3- Court to appoint time for proving the will. Notice thereof to be published. Notice and Hearing; Publication
 

      When a will is delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.

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SECTIONS 4-6

SECTION 4. HEIRS, DEVISEES, LEGATEES, AND EXECUTORS TO BE NOTIFIED BY MAIL OR PERSONALLY
 

Persons to be Given Notice:
      1. Designated or known heirs, legatees and devisees; and
      2. Executor and co-executor if not the petitioner.
 

Modes of Notification
     1. If by mail: 20 days before hearing
     2. If through personal service: 10 days before hearing.
 

 

SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST


   At the hearing, compliance of publication and notice must first be shown before introduction of testimony in support of the will.

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SECTION 6. PROOF OF LOST OR DESTROYED WILL. CERTIFICATE THERE UPON
 

     This section applies to a lost or destroyed notarial will and not to a        holographic will.
 

Facts which should be proved in order that a lost or destroyed will may be allowed:
         1. That the will has been duly executed by the testator;
         2. That the will was in existence when the 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
         3. The provisions of the will are clearly established by at least two

             credible witnesses.

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SECTIONS 7-9

SECTION 7. Proof when witnesses do not reside in province.

 

      If it appears at the time fixed for the hearing that none of the subscribing witnesses resides in the province, but that the deposition of one or more of them can be taken elsewhere, the court may, on motion, direct it to be taken, and may authorize a photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked the same questions with respect to it, and to the handwriting of the testator and others, as would be pertinent and competent if the original will were present.

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Comment: Deposition is the written testimony of a witness in a judicial proceeding in advance of trial or hearing upon oral examination or written interrogation where an opportunity for cross exam was given.

 

 

SECTION 8. Proof when witnesses dead or insane or do not reside in the Philippines.

 

     If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines,   the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.

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Comment: In weighing the testimony of the attesting witnesses to a will, the statement of a competent attorney charged with responsibility of seeing to the proper execution of the instrument is entitled to greater weight than the testimony of a person casually called to participate in the act

 

 

SECTION 9. Grounds for disallowing will.

 

       The will shall be disallowed in any of the following cases:

 

            (a) If not executed and attested as required by law;

            (b) If the testator was insane, or otherwise mentally in capable to

                 make a will, at the time of its execution;

           (c) If it was executed under duress, or the influence of fear, or

                threats;

          (d) If it was procured by undue and improper pressure and influence,                 on the part of the beneficiary, or of some other person for his

               benefit;

          (e) 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 time                 of fixing his signature thereto.

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Comment: The said grounds are exclusive.

SECTIONS 10-13

SECTION 10. Contestant to file ground of contest.

 

  • Must state in writing his grounds for opposing its allowance

  • Serve a copy thereof on the petitioner and other parties interested in the estate.

 

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SECTION 11. Subscribing witnesses produced or accounted for where will contested

 

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For notarial wills:

  • All the subscribing witnesses, and the notary in case of wills executed, if present in the Philippines and not insane, must be produced and examined.

  • If the witnesses are outside of the province where the will has been filed, their deposition must be taken.

  • If any or all of them testify against the due execution of the will, or do not remember having attested to it, or otherwise of doubtful credibility, the will may allowed if the court satisfied from the testimony of other witnesses and from all evidence presented.

 

 

For holographic wills:

  • At least three witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, expert testimony may be resorted to.

 

EXPLANATION

  • For notarial wills “It is an established rule that a testament may not be disallowed just because the attesting witnesses declare against its due execution; neither does it have to be necessarily allowed just because all attesting witnesses declare in favor of its legalization; what is decisive is that the court is convinced by evidence before it, not necessarily from the attesting witnesses, although they must testify, that the will was or was not duly executed in the manner required by law.” (Baltazar v. Laxa)

  • “The possibility of false document being adjudged as the will of the testator cannot be eliminated, which is why if the holographic will is contested, the law requires three (3) witnesses to declare that the will was in the handwriting of the deceased.” (Codoy v. Calugay)

 

 

SECTION 12. Proof where testator petitions for the allowance of Holographic Will.

 

If no contest is filed:

  • The affirmation made by the testator that the holographic will and the signature are his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof.

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If contested:

  •  The burden of disproving the genuineness and due execution shall be on the contestant.

 

EXPLANATION

  • Probate of a Holographic will by the testator.
    If the petition for probate is filed by the testator himself and where no contest 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.

 


SECTION 13. Certificate of allowance attached to prove 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 allowance thereof shall be recorded in the Register of Deeds of the province which the lands lie.

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