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Rule 76

Allowance and Disallowance of Will


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?

during his lifetime


at any time after the death of the testator

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 coexecutor .

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 nonsubscribing 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 will


Formal solemnities include subscription, attestation and acknowledgement.
Probate of a Holographic will
It 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
Contestant must:
State the opposition in writing
Serve a copy on the petitioner and other interested parties.
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 know 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 testator
If 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 a 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 allowance thereof shall
be recorded in the Register of Deeds of the province which the lands lie.

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