Apurímac
CASO NUEVO Tipo: Asuntos de gobierno regional
If the order of closure has already become final and executory, the heir must file an independent civil action of accion reinvidicatoria to recover his deprived share.
Note: It must be brought within 10 years from the time the right of action
accrues. [Art. 1144(c)]
Also applicable in judicial proceedings.
After the lapse of two years an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.
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O M A SC. PRODUCTION AND PROBATE OF WILL 1. NATURE OF PROBATE PROCEEDING
Q: What is probate?
A: Probate is the act of proving before a competent court the due execution of a will by a person possessed of testamentary capacity, as well as the approval thereof by said court, (also known as Allowance of Will).
Q: Why is probate necessary?
A: To settle all questions concerning the capacity of the testator and the proper execution of his will, irrespective of whether its provisions are valid and enforceable. (Fernandez v. Dimagiba, G.R. No. L- 23638, Oct. 12, 1967)
Q: What is the nature of a probate proceeding? A:
1. IN REM- It is binding upon the whole world. 2. MANDATORY- No will shall pass either real or personal property unless it is proved and allowed in the proper court.
Note: However, a will may be sustained on the basis of
Article 1080 of the NCC which states that, “if the testator should make a partition of his property by an act intervivos or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir. (Mang- Oy v. CA, L-27421, 1986)
3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory. The presentation and probate of the will is required by public policy. It involves public interest. (Fernandez v. Dimagiba, L- 23638, 1967)
Q: Does the probate court look into the intrinsic validity of the will?
A:
GR: The jurisdiction of probate court is limited to the examination and resolution of the extrinsic validity of a will.
XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will:
1. If the case where to be remanded for probate of the will, it will result to waste of time, effort, expense, plus added
anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No. L- 23445, June 23, 1966).
2. Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985).
Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the will.
NOTE: The decree of probate is conclusive with respect
to the due execution of the will and it cannot be impugned on any of the grounds authorized by law, except by fraud, in any separate or independent action or proceeding.
2. WHO MAY PETITION FOR PROBATE
Q: Who may file petition for allowance of will? A:
1. Executor (Sec. 1, Rule 76);
2. Devisee or legatee named in the will (Sec. 1, Rule 76);
3. Person interested in the estate; e.g. heirs Note: An interested party is one who would
be benefited by the estate, such as an heir, or one who has a claim against the estate such as a creditor. (Sumilang v. Ramagosa,
G.R. No. L-23135, Dec. 26, 1967)
4. Testator himself during his lifetime (Sec. 1, Rule 76); or
5. Any creditor – as preparatory step for filing of his claim therein.
Q: Who are the people entitled to notice in a probate hearing?
A:
1. Designated or known heirs, legatees and devisees of the testator resident in the Philippines at their places of residence, at least 20 days before the hearing, if such places of residence be known.
2. Person named executor, if he not the petitioner.
3. To any person named as co-executor not petitioning, if their places of residence be known.
4. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. (Sec. 4, Rule 76)
D. ALLOWANCE OR DISALLOWANCE OF A WILL 1. CONTENTS OF PETITION FOR ALLOWANCE FOR
WILL
Q: What are the contents of a petition for allowance of a will?
A:
1. Jurisdictional facts:
I. death of the testator and
II. his residence at the time of his death III. if non- resident, the province where the
estate was left
2. The names, ages and residences of the heirs, legatees and devisees of the testator or decedent.
3. The probable value and character of the property of the estate.
4. The name of the persons for whom letters are prayed.
5. The name of the person having custody of the will if it has not been delivered to the court.
NOTE: But no defect in the petition shall render void
the allowance of the will or the issuance of letters testamentary or of administration with the will annexed.
Q: What is the effect of the allowance of a will? A: The judgment or decree of the court allowing the will is:
1. Conclusive as to its extrinsic validity; 2. Not subject to collateral attack and it
stands as final, if not modified, set aside, or revoked by a direct proceeding, or reversed on appeal by a higher court; and 3. Conclusive on the whole world. (Yuseco v.
CA, G.R. Nos. L-40719-21, Dec. 29, 1975)
Q: How should a will be proved? A:
Uncontested Contested
Notarial will
The court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testifies that the will was executed as is required by law.
(Sec. 5, Rule 76)
All the subscribing witnesses and the notary public must testify as to due execution and attestation of the will. (Sec. 11, Rule
76) Holographic will At least one witness who knows the handwriting and signature of the testator explicitly declares that the will and signature are in the handwriting of the testator.
(Sec. 5, Rule 76)
The will shall be allowed if at least three witnesses who know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator.
(Sec. 11, Rule 76)
Note: At the hearing, compliance with publication and
notice must first be shown before the introduction of testimony in support of the will.
In the absence of competent witness, and if the court deems it necessary, expert testimony may be resorted to. (Sec. 5, Rule 76)
Q: What is the remedy if none of the subscribing witnesses resides in the province where probate is being conducted?
A: A motion for taking of deposition of one or more of them. (Sec. 7, Rule 76)
Note: Court may also authorize photographic copy of
the will to be made and to be presented to the witness on his examination, who may be asked questions with respect to matters pertaining to the will. (Sec. 7, Rule
76)
Q: What are the instances when the court may admit the testimony of witnesses other than the subscribing witnesses?
A:
1. The subscribing witnesses are dead or insane; or
2. None of them resides in the Philippines. (Sec. 8, Rule 76)
Q: What matters shall be testified on by the other witnesses?
A:
1. The sanity of the testator; and 2. Due execution of the will.
Note: The court may admit proof of handwriting of the
testator and of the subscribing witnesses, or any of them. (Sec. 8, Rule 76)
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O M A SQ: What proof is necessary if the testator himself files the petition for probate of his holographic will and no contest is filed?
A: The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. (Sec. 12, Rule 76)
Q: What if the holographic will is contested? A: If the holographic will is contested, the burden of disproving the genuiness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant. (Sec. 12, Rule 76)
Q: What is the rule on proof of lost or destroyed will?
A: If notarial will, it may be proven by a photostatic or xerox copy of the will coupled with the testimonies of the attesting witnesses.
If holographic will, a photostatic copy or exerox copy of the lost will would not suffice. But if there are no other copies available then a photostatic or xerox copy would suffice to serve as a comparison to the standard writings of the testator. No testimonies of witnesses is allowed because the will was made entirely by the testator himself. (Bonilla vs. Aranz, G.R. No. L-58509, Dec. 7, 1982)
Q: What are the requisites for allowance of a lost or destroyed will?
A: No will shall be proved as a lost or destroyed will unless:
1. Its execution and validity of the same must be established;
2. It must have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge; and 3. Its provisions must be clearly and
distinctly proved by at least 2 credible witnesses (Sec. 6)
2. GROUNDS FOR DISALLOWING A WILL
Q: What are the grounds for disallowance of will? A:
1. If not executed and attested as required by law;
2. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;
3. If it was executed under duress, influence of fear, or threats;
4. If it was procured by undue and improper pressure or influence, on the part of the beneficiary, or of some other person for his benefit; or
5. 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 time of fixing his signature thereto. (Sec. 9, Rule 76)
Q: What is the Substantial Compliance Rule? A: If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and farud is obviated, said will should be admitted to probate (Art. 809, New Civil Code).
3. REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT
Q: What is reprobate?
A: It is a special proceeding to establish the validity of a will proved in a foreign country.
Q: What are the requisites before a will proven outside the Philippines be allowed here?
A:
1. The testator was domiciled in a foreign country;
2. The will has been admitted to probate in such country;
3. The foreign court is, under the laws of said foreign country, a probate court with jurisdiction over the proceedings; 4. Proof of compliance with the law on
probate procedure in said foreign country;
5. The legal requirements in said foreign country for the valid execution of the will have been complied with;
6. Filing a petition in the Philippines with copy of the will and of its decree of allowance; and
7. Notice and hearing. (PCIB v. Escolin, G.R. No. 76714, June 2, 1994)
Note: Under the doctrine of processual presumption,
there must be evidence to prove the existence of foreign law, otherwise the court should presume that the law of the foreign country is the same as Philippine laws.
Q: What are the effects of probate? A:
1. The will shall have the same effect as if originally proved and allowed in the Philippines (Sec. 3, Rule 77);
2. Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines (Sec. 4, Rule 77); and
3. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will, may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country (Sec. 4, Rule 77).
E. LETTERS TESTAMENTARY AND OF ADMINISTRATION
1. WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION GRANTED
Q: Who can administer the estate? A:
1. Executor – named by the testator in his will for the administration of his property after his death;
2. Administrator – appointed by the court in accordance with the Rules or governing statutes to administer and settle the intestate testate; or
3. Administrator with a will annexed – appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such.
Q: Who may serve as executor or administrator? A: Any competent person may serve as executor or administrator. There may be several executors named in the will. Letters testamentary may issue to such of them as are competent, accept and give bond. (Sec. 4, Rule 78)
Note: If the named executor does not qualify, then an
administrator may be appointed. (Sec. 6, Rule 78)
Q: Who are incompetent to serve as executor or administrator?
A:
1. Minor;
2. Non-resident of the Philippines; and 3. Those who, in the opinion of the court,
are unfit to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, or conviction of an offense involving moral turpitude (Sec. 1, Rule 78).
Q: What authority is issued to the person who administers the estate?
A:
1. Letters testamentary – authority issued to an executor named in the will to administer the estate;
2. Letters of administration – authority issued by the court to a competent person to administer the estate of the deceased who died intestate; or
3. Letters of administration with a will annexed – authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office, or is incompetent.
2. ORDER OF PREFERENCE
Q: State the order of preference in granting letters of administration. (to whom letters are granted) A: If no executor is named in the will, or the executors are incompetent, refuse the trust, or fail to give the bond, or a person dies intestate, administration shall be granted to:
1. The surviving spouse or next of kin, or both, in the discretion of the court, or to such person as such surviving spouse or next of kin, requests to have appointed, if competent and willing to serve
2. The principal creditors, if competent and willing to serve, if the surviving spouse or next of kin, or the person selected by them be incompetent or unwilling or if the surviving spouse or next of kin neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person
3. Such other person as the court may select if there is no such creditor competent and willing to serve. (Sec. 6)
NOTE: Order of preference may be disregarded for a
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ACADEMICS CHAIR:LESTER JAY ALAN E.FLORES II
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O M A SNote: Co-administrators may be appointed for the
benefit of the estate and those interested therein
(Matute v. CA, G.R. No. 26751, Jan. 31, 1969).
Q: What is the rationale behind the order of preference in appointing an administrator? A: The underlying assumption behind this rule is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly (Gonzales v. Aguinaldo, G.R. No. 74769, Sept. 28, 1990).
Q: When may co-administrators be appointed? A:
1. To have the benefit of their judgment and perhaps at all times to have different interests represented;
2. Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased;
3. Where the estate is large or, from any cause, an intricate and perplexing one to settle;
4. To have all interested persons satisfied and the representatives to work in harmony for the best interest of the estate; or
5. When a person entitled to the administration of an estate desires to have another competent person associated with him in the office. (Gabriel v. CA, G.R. No. 101512, Aug. 7, 1992) 3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF