ArticuLaw Primo
LSPU-LAW STAR CLASS
RULE 75
PRODUCTION OF WILL
ALLOWANCE OF WILL NECESSARY
Prepared by: Rolando Bautista
Sec. 1 ALLOWANCE NECESSARY, CONCLUSIVE AS TO EXECUTION
- No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.
Art. 783 A will is an act whereby a person is permitted with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.
Probate of will mandatory
Probate or allowance of wills is an act of proving in a court of a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized ,register and its provision carried insofar as they are in accordance with law.
Nature of Probate proceedings
1. IN REM – binding on the whole world
2. Mandatory – no Will shall pass either real or personal property unless it is and allowed in the proper court.
However it has been held that a will maybe sustained on the basis of Art.1080 of NCC which reads as follows:
if the testator should make a partition of his properties by an act inter vivos or by will, such partition shall stand in so far as it does not prejudice the ligitime of the forced heirs.
3. Imprescriptible- because of the public policy to obey the will of the testator.
4. The DOCTRINE of ESTOPPEL – Does not apply
Reason: presentation and probate of will is required by public policy and involves public interest.
IN SPECIAL PROCEEDINGS FOR THE PROBATE OF A WILL, the issue by and large is restricted to the extrinsic validity of the will like if whether the testator is
A) Being of sound mind (capacity of the testator)
B) Freely executed the will in accordance with the formalities prescribed by law.
EXCEPTION: When Probate Court may pass upon intrinsic validity
(The principle of practical Considerations)
The Rule that the probate Court’s authority is limited only to determine the extrinsic validity of the rule, is not inflexible and absolute under exceptional circumstances, the probate court is not powerless to do what the situation constrain it to do and pass upon certain provisions of the will.
IN NUGUID VS. NUGUID - the court ruled that the will was instrisically invalid as it completely pretirited the parents of the testator.
In the instant case a crucial issue that calls for resolution is whether under the terms of the decedents will private respondent had been preterited or disinherited. And if disinherited if it is a valid disinheritance.
Difference of Pretirition and Disinheritance
Preterition consist in the omission on the testator’s will of the forced heirs or anyone of them either because they are not mentioned or not instituted as heir.
Disinhiritance is a testamentary disposition depriving any compulsary heirs of his share in legitime for a caused authorized by law.
Disinheritance Preterition
-is always voluntary - may be intentional or unintentional
-cause must always be stated - may be with or without cause
-disinhirited heir inherits nothing - preterition annuls the institution, therefore the
omitted heir inherits
- may exist with or without a will -a will is always required
Question: WHAT IS THE DUTY OF THE CUSTODIAN OF THE WILL?
The person who has custody of a will shall within 20 days after he knows of the death of the testator, deliver the will to the court having jurisdiction or to the executor named in the will. SEC. 2
Question: WHAT IS THE DUTY OF THE PERSON AFTER HE KNOWS THAT HE IS NAMED AS EXECUTOR IN THE WILL?
A person named as executor in a will shall, within 20 days after he knows of the death of the testator, or within 20 days after he knows that he is named executor if he obtained such knowledge after the death of the testator present such will to the court having jurisdiction, unless the will has reached the court in any other manner and shall within such period signify to the court in writing his acceptance of the trust or his refusal to accept it.
EFFECT IF THE CUSTODIAN AND EXECUTOR NEGLECT THEIR DUTY
A person who neglects any of the duties required in the two last preceedings section without excuse satisfactory to the court shall be fined not exceeding two thousand pesos. Sec. 4
A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do to the court having jurisdiction, maybe committed to prison and there kept until he delivers the will. (Sec. 5)
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