RULE 76

ALLOWANCE OR DISALLOWANCE OF WILL

PROBATE OF A WILL
It 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
Any executor,
devisee,
or legatee
in the
OF
WILL?
(BAR
Q.named
*99)
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 PETITION
A. Jurisdictional Facts
That 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

TIME TO PROVE OR CONTEST THE WILL

The Court shall fix a time and place for proving the will
where all concerned may appear to contest the allowance
thereof.

PUBLICATION OF NOTICES
General 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
descendants
2. Legitimate Parents and their legitimate
ascendants
3. Surviving Spouse
4. 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

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 WILL

At the hearing, the proponent

must prove:
A. Publication of the Notice of
Hearing; and
B. Service of the Notice of
Hearing, to all known heirs,

EVIDENCE REQUIRED FOR

ALLOWANCE OF WILL
A. 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,

B. IF THE ALLOWANCE
CONTESTED:

OF

THE

WILL

IS

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.
i. If the petition is not contested, his own
testimony shall be sufficient;
ii. If the execution is contested, the burden of
disproving the genuineness and due
execution of the will shall be on the
contestant;
iii.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 WILL
Anyone 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 WILL

A 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,

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

LETTERS
TESTAMENTARY ISSUED
WHEN WILL IS
When a will has been proved and allowed,
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.