Rule 76.

Allowance
or Disallowance
of Will
Section 1

Generally,a petition for probate is instituted only after the testator’s

death,and after approving and allowing the will,the court then proceeds

to issue letters testamentary and settle the estate of the testator. As an

exception,a will may be admitted to probate even before the testator’s

death,provided that the testator himself petitions the court for its

allowance..Such petition filed during the testator’s lifetime may only be

initiated by the testator himself. The persons enumerated in the first

paragraph of Section 1 do not have the right to institute probate

proceedings while the testator is alive,for that right is solely reserved for

the testator.

A person allowed to intervene in a probate proceeding is one who has

an interest in the estate-one who would be benefited by the estate like

an heir,or one who has a claim against the estate such as a creditor. The

petition for probate shall prosper regardless of whether the petitioner

has the will in his possession,or it be lost or destroyed.

*attaching of mere copy of will is sufficient without prejudice to

producing the original thereof when the court so requires.*

*jurisdiction of the court is vested upon delivery of the will even if no

petition for its allowance is filed later,because the court fixes the time

&place for proving the will,and issues corresponding notices to what is

prescribed.*

Section 2

Jurisdictional facts refer to the facts of death of the decedent,his

residence at the time of his death in the province where the probate

court sits,or if he is an inhabitant of a foreign country,the estate he left in

such country. The names and addresses of the heirs are required to be

stated in order for the court to determine who are the persons who are

entitled to notice as well as the manner notice shall be given.

Section 3

The court acquires jurisdiction over settlement proceedings by:

Attachment of copy of the will to the petition

Delivery of the will to the court

The court may act upon the mere deposit of the decedent’s testament

even if petition for its allowance has yet to be filed.If a petition for

probate is made after the deposit,the petition is deemed to relate back

to the time when the will was delivered.

After the delivery of the will to the court,or a petition for its

allowance is filed,the court shall:

Fix the time and place for proving the will when all concerned may
appear to contest its allowance;

To cause the notice of time and place to be published for 3

successive weeks in a newspaper of general circulation in the province.

Section 4

When the settlement proceeding is initiated by persons other than

the testator,the court is required to send notice of the time and place of

hearing to the designated heirs,legatees,devisees who reside in the

Phil.The court’s obligation to send notices attaches only when the

heirs,legatees,&devisees and their respective residences are known.

Those who are neither compulsory nor testate heirs need not be notified

by the court.

If notice is given through personal service,the interested parties must

be notified at least 10 days before the hearing,if notice is given through

registered mail,it should be sent at least 20 days before the hearing. A

settlement proceeding may be annulled if it is shown that the notice is

not published in accordance with Sec.3

Section 5

These are what the petitioner should present to the satisfaction of

the court:

Evidence that the order of the court fixing the time &place for
proving the will has been published for 3 successive weeks prior to the

time appointed;

Evidence that a notice of such hearing has been served upon the

known heirs,legatees,devisees of the resident testator at least 10/20

days prior;

If the petitioner is not the executor,evidence that notice has

been served upon the executor if his residence is known;

Testimonies of the subscribing witnesses.

When a notarial will is under probate,the testimony of one of the

witnesses to the will that the substantive requirements were met is

sufficient, as long as the said witness knows the handwriting & signature

of the testator and he explicitly declares so.Where the testator himself

petitions his will for probate of his holographic will,his affirmation of said

will &his signature thereon are sufficient to prove its genuineness and

due execution.

Section 6

Whether a will be a notarial or a holographic one,its loss or

destruction may only be proved upon the concurrence of the ff:

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;

Its provisions must be clearly & distinctly proved by two credible

witnesses.

Should a will be proved lost,its provisions must be distinctly stated

&certified by the judge under the seal of the court.

Sections 7 and 8

The court may examine witnesses other than the subscribing

witnesses if the subscribing witness is insane,is dead,or if none of the

subscribing witnesses reside in the Phil.

The petitioner may file a motion with the court for taking the

depositions of subscribing witnesses who do not reside in the province

where the probate proceeding is pending.Deposition may be resorted to

if the deponent lives at least 100 kilometers away from the territorial

jurisdiction of the probate court.

The insanity,death or non-residence of the subscribing witnesses shall

not prevent the court from admitting the will into probate as long as the

testator’s sanity and the due execution of the will are proved.

Sec.9

A will cannot be disallowed for grounds other than those stated in this
provision.The grounds for disallowance are exclusive and fall under the

ff.categories:

Legal formalities- if the will is not executed and attested as required

by law;

Testamentary capacity- if the testator was mentally incapable to

make the will at the time of its execution

Due execution- if the will was executed under duress,or influence of

fear,or threats, or was procured with undue and improper pressure and

influence,if the testator’s signature was procured by fraud and that he

did not intend that the instrument be his will at the time he affixed his

signature therein.

If the will has been executed in substantial compliance with the

formalities of the law, (where the purpose of the law has been

satisfied)and the possibility of bad faith and fraud is obviated ,said will

should be admitted to probate.

*the solemnities in the execution of the will are intended to protect the

testator from fraud ,yet never to be inflexible and rigidly followed as to

destroy the testamentary privilege.*

Sec. 10

A person contesting the will must state his grounds in a written

opposition and must serve a copy of such to the petitioner and to those

who have an interest in the estate.

Sections 11 and 12

When a will is contested,all the subscribing witnesses and the notary

public who notarized the will must testify in the probate proceedings.

With a holographic will,at least 3 witnesses must testify as to the

testator’s handwriting and his signature. If the court deems it

necessary,in the absence of any competent witness,expert testimony

may be resorted to. When the testator himself petitions for the probate

of his holographic will,the burden to disprove its genuineness and due

execution is on the person contesting the same.

Sec.13

When a will is admitted to probate, the judge shall issue a certificate of

allowance of the will, which must be signed by the judge and attested by

the seal of the court;the clerk must record and file the said

certificate;and the will must be recorded in the Register of Deeds of the

province where the land is located.