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Production of Will; Allowance of Will Necessary

WILL defined:
A will is defined as “an cat 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 (Art 783 CC).
The law also provides that “the making of a will is a strictly personal act; it
cannot be left in whole or in part to the discretion of a third person, or
accomplished through the instrumentality of an agent or attorney (Article 784
Allowance of Will or Probate defined:
Probate or allowance of will is a special proceedings mandatorily required
for the purpose of establishing the validity of a will in accordance with Article
838 of the Civil Code which provides that “No will shall pass either real or
personal property unless it is proved and allowed in accordance with the
Rules of Court”. Probate is therefore mandatory.
Production of Will; Allowance of Will Necessary
 As a general rule, courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated. However, in
exceptional circumstances, courts are not powerless to do what the
situation contrains them to do, and pass upon certain provisions of the will
(Alejo vs. CA GR 106720, Sept 15, 1994, 236 SCRA 488).
Probate does not deal with the intrinsic validity of the will:
 The probate court does not deal with the intrinsic validity of the will.
Probate looks only into the extrinsic validity of the will, which means that it
determines the due execution of the will. This includes the determination 1) if
the formalities of the law have been complied with; 2) the capacity of the
testator has been established, & 3) the will is genuine.
 An exception would be when the will is void on its face, the probate court
may disregard passing on the extrinsic validity for practical considerations
(Maninang vs CA GR 57848, June 19, 1982, 114 SCRA 478)
 In Nuguid vs. Nuguid, the probate court delved into the intrinsic validity of
the will because its single testamentary provision showed that the testator’s
parents were preterited. The testator died single without issue. She was
survived by her parents and six sibling gs. In the will the testator instituted
her sister Remedios as her sole and universal heir to succeed her property
which constituted her sole estate. The SC declared that the testator’s
(Rosario) parents were preterited in the will, which had only one disposition.
The result of the annulment of the institution of heirs was the declaration
that the entire will was void considering that it had only one provision.
 In Cayetano vs Leonidas (GR L-54919, May 30,1984, 129 SCRA 552) one
of the issues raised in the the motion to dismiss the petition deals with the
validity of the provisions of the will. Respondent judge allowed the probate
of the will.The SC held that as on its face the will appeared to have
preiterited the petitioner the respondent judge should have denied the
probate outright. Where circumstances demand tht intrinsic validity of
testamentary provisions be passed upon even before the extrinsic validity
of the will is resolved, the probate court should meet the issue.
 In Saguinsin vs Lindayag (GR 17759 Dec 17, 1962 6 SCRA 874) the motion
to dismiss by the surviving spouse was grounded on petitioner’s lack of
lagal capacity to institute the proceedings which was fully substantiated by
the evidence during the hearing held in connection with said motion. The
SC upheld the probate court’s order of dismissal.
 In Acain vs IAC (GR 72706, October 27, 1987. 155 SCRA 100) the SC has
made its position clear: “for respondents to have tolerate the probate of the
will & allowed the case to progress when, on its face, the will appears to be
intrinsically void … would have been an exercise in futility. It would have
meant a waste of time, effort, expense, plus added futility. The trial court
could have denied its probate outright or could have passed upon the
intrinsic validity of the testamentary provisions befoe the extrinsic validity of
the will was resolved.
 Probate Court’s limited authority
a) extrinsic validity of the will
b) due execution of the will
c) testamentary capacity of the testator; &
d) compliance with the requisites or solemnities of the will as prescribed by
Extrinsic validity (due execution of the will) defined:
 Due execution of the will or its extrinsic validity pertains to whether the
testator, being of sound mind, freely executed the will in accordance
with the formalities prescribed by law (Pastor Jr. vs CA, GR 56340,
June 24, 1983, 207 Phil. 758). These formalities are enshrined in
Articles 805, 806 and even of the New Civil Code.
When a judge looks into the execution of a will, the inquiry esstentially
goes into the testator’s voluntariness of making dispositions in the will.
The testamentary capacity is also examined on this level, which looks
into the soundness of mind of the testator. Soundness of mind in turn,
refers to knowledge of three importance consideration:
1) nature of the estate (a fair and accurate knowledge of what he
2) objects of bounty (who his relatives in the most proximate
degrees are), & 3) character of the testamentary act.
 Nature of probate proceedings:
• The probate of a will is a proceeding in rem because it binds the whole
world by virtue of the publication of the petition. The jurisdiction of the
probate court extends to all persons interested in said will or in the
settlement of the estate of the deceased.
• Publication is notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to make an objection of
any sort against the right sought to be established. It is the publication of
such notice that brings in the whole world as a party in the case and vests
the court jurisdiction to hear and decide it.
 Effect of Probate:
• Once allowed on probate, the principle of res judicata applies. This means
that the testator was of sound mind at the time he executed the will and
was not acting on duress, fraud or undue influence; that the will was
signed by him in the presence of the required witnesses, and thate the will
is genuine and not a forgery. Pursuant to the rule on res judicate, these
facts cannot anymore be questioned in a subsequent proceedings, not
even in a criminal action for forgery of the will.
 Duties of the custodian of the will (Section 2, Rule 75):
• The person who has custody of a will shall, within twenty (20) days after he
knows of the the death of the testator, deliver the will to the court having
jurisdiction, or to the executor named in the will.
• Mere possession of a will does not make the holder thereof a custodian of the
• A custodian refers to a person who receives a will with knowledge, or under such
circumstances that he ought to have known that he was receiving custody of a
• A custodian is chosen by a testator in advance, & entrusted with the custody of a
will by mutual agreement with the testator. He is obligated to keep and preserve
the will safely for the benefit of the testator under the latter’s death.
Duty of the executor named in the will:
• The executor name in the will is also given 20 days from either knowledge
of the testator’s death or knowledge that he has been named executor, to
present the will to the court, having jurisdiction , unless it has reached the
court in some other manner.
•He is also given the same period within which to signify in writing to the the
court his acceptance or refusal of such trust.
Custodian & Executor subject to FINE for failure to comply with duty:
 Under Section 4 Rule 75, failure of the custodian & executor to comply with
their respective duties under Sections 2 & 3 , without satisfactory excuse ,
will be penalized with FINE in amount of not exceeding Two Thousand
(P2,000.00) pesos.
 If the custodian retains the will & does not deliver it to the court , may also
be committed to prison & kept there until he deliver the will (Section 5, Rule
 But in order to be subjected to payment of fine for failure to comply with
Sections 2 & 3 or imprisonment for failure or neglect to submit a will to the
court, the act must be acting in the exercise of its jurisdiction over the
administration of estates of deceased persons. (US vs. Guimco GR 12184,
September 27,19170.
 Where there is no pending case, the court must require the existence of a
petition or affidavit before it of such character to make an action under the
above item appropriate.
 Mandamus cannot be availed of to compel another person to produce the
will of the deceased, there being another plain, speedy and adequate
remedy in the ordinary course of law (UY Kiao Eng vs Lee GR 176831.
January 15, 2010.