Probate of the Will 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

Guzman v. Angeles, 162 SCRA 347.

v. Court of Appeals, 53 SCRA 360.

v. Court of Appeals, 26 360; Abut v. Abut, 45 SCRA 320.

Rule 76 ALLOWANCE OR DISALLOWANCE OF WILL 4-5

Thus, the Probate court must cause notice through publication of the petition after receiving the same otherwise the proceeding for the settlement of estate is void and should be

SEC. 4. legatees, and executors to be

fied by mail or court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, lega-tees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the per-son named as executor, if he be not the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the no-tice at least ten days before the day of hearing shall be equivalent to mailing.

If the testator asks for the allowance of his own will, no-tice shall be sent only to his compulsory heirs.

NOTES:

The requirement of the law for the allowance of will was not satisfied by mere publication of notice of hearing. Notice of hearing to the designated heirs, legatees and devisees is

SEC. 5. Proof at hearing. What sufficient in absence of — At the hearing compliance with the provisions of the last two preceding sections must be shown before the in-troduction of testimony in support of the will. All such testi-mony shall be taken under oath and reduced to writing. If no person appears to contest the allowance of the will, the court may grant allowance thereof on the testimony of one of the

Guzman v. Angeles, 162 SCRA 347.

Arenas v. Galling, 161 628.

5-6 SPECIAL PROCEEDINGS A N D SPECIAL RULES Rule 76 IMPLEMENTING THE FAMILY COURTS ACT OF 1997

et al. v. 6 Phil. 2 2 3 . v. Suntay, 63 Phil. 793.

v. De Leon, 43 Phil. 4 1 3 .

subscribing witnesses only, if such witness testify that the will was executed as is required by law.

In the case of a holographic will, it shall be necessary that at least one witness who knows the handwriting and sig-nature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the ab-sence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to.

SEC. 6. Proof of or destroyed will. Certificate

upon. — No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudu-lently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses.

When a lost will is proved, the provisions thereof must be dis-tinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.

NOTES AND CASES:

Under this provision, three facts should be proved in order that a lost or destroyed will may be allowed: (1) that the will has been duly executed by the testator; (2) that the will was in existence when the 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 (3) that the provisions of the will are clearly estab-lished by at least two credible witnesses. The first and third facts constitute secondary evidence in lieu of the original of the But before secondary evidence may be admitted, the loss of the will should be The second fact is required to be proved to pre-clude the inference that the testator destroyed his own In other words, if the will was not in existence at the time of the

Rule 76 ALLOWANCE OR DISALLOWANCE OF WILL 7-8

testator's death and there is no proof that it has been destroyed by another without the testator himself destroyed his own thus revoking

SEC. 7. Proof when do not in province. — If it appears at the time fixed for the hearing that none of the subscribing witnesses resides in the province, but that the deposition of one or more of them can be taken elsewhere, the court may, on motion, direct it to be taken, and may au-thorize a photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked the same questions with respect to it, and to the

writing of the testator and others, as would be pertinent and competent if the original will were present.

SEC. 8. Proof when witnesses dead or insane or do not reside in the — If it appears at the time fixed for the hearing that the subscribing witnesses are dead or in-sane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the san-ity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing wit-nesses, or of any of them.

NOTES AND CASES:

Weight of Testimonial Evidence

A will may be allowed even if some witnesses do not remember having attested to it, if other evidence satisfactorily show due execu-tion. The failure of the witness to identify his signature does not bar

The test whether a witness to a will is deemed to have signed in the presence of each other is not whether a witness did see the

Gago v. 49 Phil. 902.

p. Edition.

v. 37 672.

SPECIAL PROCEEDINGS A N D SPECIAL RULES Rule 76 IMPLEMENTING THE FAMILY COURTS ACT OF 1997

signing of the will but whether he was in a position to see if he to do

In weighing the testimony of the attesting witnesses to a will, the statement of a competent attorney charged with responsibility of seeing to the proper execution of the instrument is entitled to greater weight than the testimony of a person casually called to participate in the

SEC. 9. Grounds for will. — The will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally capable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

NOTES AND CASES:

1. Related Civil Code Provisions

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative.

Art. 788. a disposition admits of different inter-pretations, in case of doubt, that interpretation by which the

disposi-tion is to be operative shall be preferred.

Art. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which

Rule 76 ALLOWANCE OR DISALLOWANCE OF WILL Sec. 9

will render any of the expressions inoperative; and of two modes of a will, that is to be preferred which will prevent intes-tacy.

Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made.

Art. 796. All persons who are not expressly prohibited by law may make a will.

Art. 797. Persons of either sex under eighteen years age cannot make a will.

Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

Art. 802. A married woman may make a will without the con-sent of her husband, and without the authority of the court.

Art. 804. Every will must be in writing and executed in a lan-guage or dialect known to the testator.

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testa-tor's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more cred-ible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and other instrumental witnesses of the will, shall also sign as afore-said, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number pages and upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of instrumental witnesses, and that the latter witnesses and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the wit-ness, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a pub-lic by the testator and the witnesses. The notary pubpub-lic shall not be

SPECIAL PROCEEDINGS A N D SPECIAL RULES Rule 76 IMPLEMENTING THE FAMILY COURTS ACT OF 1997

required to retain a copy of the will, or file another with the office of the Clerk of Court.

Art. 807. the testator is a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

Art. 811. In the probate of a holographic will, it shall be neces-sary that at least one witness who knows the handwriting and signa-ture of the testator explicitly declare that the will and signasigna-ture are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

In the absence of any competent witness referred to in the pre-ceding paragraph, and if the court deem it necessary, expert mony may be resorted to.

Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions.

Art. 813. When a number of dispositions appearing in a holo-graphic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions pre-ceding it, whatever the time of prior dispositions.

Art. 814. In case of any insertion, cancellation, erasure or al-teration in a holographic will, the testator must authenticate the same by his full signature.

Rule 76 ALLOWANCE OR DISALLOWANCE OF WILL Sec.

Art. 815. When a Filipino is in a foreign country, he is author-ized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philip-pines.

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code pre-scribes.

Art. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.

Art. 819 Wills, prohibited by the preceding articles, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.