Special Proceeding

1. Rule 76
Allowance and
Disallowance
of Will
Text

2. Who may file a petition for
probate of a will?
• Executor
• Devisee
• Legatee
• Testator
• Any interested party

3. Interested Party is a person who
would be benefited by the estate either
as an heir or a claimant.

4. When must a will be
presented for probate?
• at any time after the death of the
testator
• during his lifetime

5. 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.

6. 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.

7. 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.

8. Modes of Notifying:
Notice must be given to the
designated or known heirs, legatees,
devisees, executor or co-executor
• Through mail: 20 days before the
hearing.
• Personal Notice: 10 days before
the hearing.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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 non-
subscribing witness cannot be authorized.

16. 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.

17. • 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.

18. 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
testaor himself.

19. 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.

20. Contest to a will
• State the opposition in writing
• Serve a copy on the petitioner
and other interested parties.
Contestant must:

21. 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

22. from all the evidence presented that the will
was executed and attested in the manner
required by law.
Holographic Wills - 3 witnesses who knows
the handwriting of testator. In the absence
thereof, testimony of an expert witness may
be resorted to.

23. GENERAL RULE: Holographic will if
destroyed CANNOT be probated unless
there exists a Photostat or Xerox copy
thereof.

24. 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 contetant.

25. Certificate of allowance
attached to 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 allownce thereof shall
be recorded in the Register of Deeds
of the province which the lands lie.

26. Case: Sumilang v. Ramagosa

27. KRISTINA C. DE VERA