RULE 76 Allowance or Disallowance of Will Flashcards
Meaning of Interest In Estate
In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and 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 like a creditor.
Person who may file for petition for allowance of the will?
Section 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in a 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.
When does the Court acquire jurisdiction over the probate proceedings?
The Court acquires jurisdiction upon the filing of the original petition and compliance with Sections 3 and 4 of Rule 76 of the
Rules of Court.
True or False. The original copy of the will must be attached in the petition for probate.
False.
the annexing of the original will to the petition is not a jurisdictional requirement is clearly evident in Section 1, Rule 76 of
the Rules of Court which allows the filing of a petition for probate by the person named therein regardless of whether or not he is in
possession of the will, or the same is lost or destroyed.
“The law is silent as to specific manner of bringing the jurisdictional allegations before the court, but practice and jurisprudence
have established that they should be made in the form of an application and filed with the original of the will attached thereto. It has
been the practice in some courts to permit attachment of a mere
copy of the will to the application, without prejudice to producing
the original thereof at the hearing or when the court so requires.
This precaution has been adopted by some attorneys to forestall its
disappearance, which has taken place in certain cases.
True or False. Delivery of Will alone is insufficient Even If No Petition Filed
What are the contents of a petition for the probate of a will?
SEC. 2. Contents of petition. —A petition for the allow ance of a will must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, lega tees, and devisees of the testator or decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having custody of it.
But no defect in the petition shall render void the allow ance of the will, or the issuance of letters testamentary or of administration with the will annexed.
What are the jurisdictional facts in probate proceeding?
The jurisdictional facts in probate proceedings are the death of the decedent, his residence at the time of his death in the province of where the probate court is sitting, or if he is an inhabit ant of a foreign country, his leaving his estate in such province.
ToF. no newspaper publication shall be made where the petition for probate has been filed by the testator himself
True
ToF. If the testator asks for the allowance of his own will, notice shall be sent to all his heirs.
FalseIf the testator asks for the allowance of his own will, no’tice shall be sent only to his compulsory heirs.
What 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 established by at least two credible witnesses.
Proof when witnesses do not reside in province.
SEC. 7. Proof when witnesses do not reside 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 hand
writing of the testator and others, as would be pertinent and competent if the original will were present.
Proof when witnesses dead or insane or do not reside in the Philippines. -
SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. — 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.
What are thegrounds for Grounds for disallowing a will?
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally in 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 trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto
ToF. The failure of the witness to identify his signature does not bar probate.
True
ToF. Separate Wills may be Probated Jointly
True
