RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL

RULE 76ALLOWANCE OR DISALLOWANCE OF WILLProbate of a willIt is an act providing in court a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized, registered and its provisions carried insofar as they are in accordance with law.Who may petition for the allowance of will? (bar q. *99)Any executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

The testator himself may, during his lifetime, petition the court for the allowance of his will. (Section 1, Rule 76)

Contents of petitionA. Jurisdictional FactsThat a person died leaving a will;The testator at the time of death is a resident within the territorial jurisdiction of the court;The testator is a non-resident at the time of death but left property within the territorial jurisdiction of the court.

B. Names, ages, and residences of the heirs, legatees, devisees of the testator or decedent;C. Probable value and character of the property of the estate;D. Name of the person for whom the letters are prayed; and,E. If the will has not been delivered to the Court, the name of the person having custody of it. No defect in the petition, however, shall render void the allowance of a will, or the issuance of letters of testamentary or of administration with the will annexed. (Section 2, Rule 76)

TIME TO PROVE OR CONTEST THE WILLThe Court shall fix a time and place for proving the will where all concerned may appear to contest the allowance thereof.PUBLICATION OF NOTICESGeneral Rule: The required notice shall be published 3 weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.Exception: Where the petition for probate has been filed by the testator himself, no newspaper publication shall be made. (Section 3, Rule 76)What is the nature of probate proceedings?Probate proceedings is in rem. The notice by publication as a prerequisite to the allowance of a will, is a constructive notice to the whole world, and when probate is granted the judgment is binding upon everybody, even against the State. The probate of a will having jurisdiction thereof is conclusive as to its due execution and validity. PERSONS ENTITLED TO NOTICE:- heirs, legatees, devisees, residing in the Philippines - the executor if not the petitioner*They shall be notified by mail or personally.

IF THE TESTATOR IS THE PETITIONER- only the COMPULSORY HEIRS are entitled to notice.

Compulsory Heirs:1. Legitimate Children and their legitimate descendants2. Legitimate Parents and their legitimate ascendants3. Surviving Spouse4. Illegitimate Children and their descendants, whether legitimate or illegitimate.

The MAIL shall be deposited in the post office with the postage prepaid at least 20 days before the hearing if the places of residence are known. PERSONAL SERIVICE of copies of the notice at least 10 days before the day of the hearing shall be equivalent to mailing. (Section 4, Rule 76)

At the hearing, compliance with the provisions on notice and publication shall be shown before the introduction of testimony in support of the allowance of the will. All testimony shall be taken under oath and reduced in writing. (Section 5, Rule 76)

PROOF REQUIRED AT THE HEARING FOR THE PROBATE OF A WILLAt the hearing, the proponent must prove:A. Publication of the Notice of Hearing; andB. Service of the Notice of Hearing, to all known heirs, legatees and devisees, and to the executor, if he is not the petitioner. EVIDENCE REQUIRED FOR ALLOWANCE OF WILLA. IF THE ALLOWANCE OF THE WILL IS NOT CONTESTED:i. The Court may grant allowance on the testimony of one subscribing witness.ii. If the will is holographic, at least one witness who knows the handwriting of the testator shall be presented; in the absence of such competent witness, expert testimony may be resorted. B. IF THE ALLOWANCE OF THE WILL IS CONTESTED:i. All the subscribing witnesses and the notary public must be produced and examined.ii. If any or all of the attesting witnesses testify against the due execution of the will, other witnesses may be presented.iii. If the will is holographic, three (3) witnesses who know the handwriting of the testator must be presented; in the absence of such competent witnesses, expert testimony may be resorted to. C. IF THE SUBSCRIBING WITNESSES ARE DEAD, INSANE OR NOT RESIDENTS OF THE PHILIPPINES, THE COURT MAY ADMIT THE TESTIMONY OF OTHER WITNESSES.

D. THE DEATH, INSANITY, OR ABSENCE OF SUBSCRIBING WITNESSES MUST BE SATISFACTORILY SHOWN TO THE COURT. IF THEY ARE RESIDING IN THE PHILIPPINES BUT OUTSIDE THE PROVINCE WHERE THE PROBATE IS BEING CONDUCTED, THEIR DEPOSITIONS MAY BE TAKEN.

E. WHERE THE TESTATOR PETITIONS FOR ALLOWANCE OF HIS HOLOGRAPHIC WILL. If the petition is not contested, his own testimony shall be sufficient;If the execution is contested, the burden of disproving the genuineness and due execution of the will shall be on the contestant;The testator, in his turn, may present rebuttal evidence. (Section 5,7,8,11,12, Rule 76)Proof required when a will is lost or destroyed (*BAR Q. *99)A will may be proved as lost or destroyed when: its execution and validity have been established; the will is proved to have been in existence at the time of the death of the testator;

if it has been destroyed, it is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and its provisions are clearly and distinctly proved by at least 2 credible witnesses. (Section 6, Rule 76)*Applicable only to Notarial Wills. Contesting a willAnyone appearing to contest a will must state in writing the grounds for opposing its allowance and serve a copy thereof on the petitioner and other parties interested in the estate. It is well-settled that in construing the provisions of a will, the intent of the testator is controlling. (Section 10, Rule 76)GROUNDS FOR DISALLOWANCE OF A WILLA will may not be allowed in the following instances:If the will was not executed and attested as required by law;If the testator was insane, or otherwise mentally incapable to make a will at the time of its execution;If the will was executed under duress, influence of fear or threats;

If the will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person for his benefit; and, If the signature of the testator was procured by fraud or trick, and that the testator did nit intend that the instrument should be his will at the time of fixing his signature. (Section 9, Rule 76)

LETTERS TESTAMENTARY ISSUED WHEN will is allowedWhen a will has been proved and allowed, the court shall issue letters testamentary to the person named in the executor if he is competent, accepts and trust and give a bond. However, where some co-executors are disqualified, others who are competent may perform the duties and discharge the trust required by the will.