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LASAM vs. UMENGAN

In Heirs of Rosendo Lasam, etc. v. Umengan, G.R. No. 168156, December 6, 2006, (Callejo, J), there was a

complaint for unlawful detainer alleging that the plaintiffs were the owners of the property. The defendants were

allegedly possessing the property by mere tolerance. In their defense, they alleged that they have a better right

because they inherited it from their father, showing a Last Will and Testament which has not yet been probated. The

lower courts (MTC and RTC) ruled that with the will they have a better right, but the CA reversed on the ground thatthe will has not yet been probated, hence, it has no passed any right.

In this case, both parties were claiming to have better right of possession due to ownership. One party

claiming that there was conveyance; the other, having inherited it, hence, claiming a better right of possession

following the law on succession.

In upholding the CAs ruling the SC

Held: The Last Will and Testament cannot be relied upon to establish the right of possession without having been

probated, the said last will and testament could not be the source of any right.

Article 838 of the Civil Code is instructive:

Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance

with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his

will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testators death

shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of

wills on petitioner of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his

death, shall be conclusive as to its due execution.

In Caiza v. Court of Appeals, 335 Phil. 1107 (1997) it was ruled that: a will is essentially ambulatory; at

any time prior to the testators death, it may be changed or revoked; and until admitted to probate, it has no effect

whatever and no right can be claimed thereunder, the law being quite explicit: No will shall pass either real or

personal property unless it is proved and allowed in accordance with the Rules of Court.

Before any will can have force or validity it must be probated. To probate a will means to prove before

some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is

the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been

executed, attested and published as required by law, and that the testator was of sound and disposing mind. It is a

proceedings to establish the validity of the will. Moreover, the presentation of the will for probate is mandatory and is

a matter of public policy. (Guevara v. Guevara, 74 Phil. 479; Baluyot v. Pao, 163 Phil. 81 (1976); Roberts v.

Leonilas, 214 Phil. 30 (1984)).

Since the will has not yet been probated, it has no effect whatsoever and it cannot be the basis of any claim

of any right of possession. The defendants have a better right of possession based on the deed of conveyances

executed by the owner in favor of the children, the defendants herein. (Heirs of Rolando Lasam v. Umengan, G.R.

No. 168156, December 6, 2006).