What is a will?

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 this estate, to take effect after his death.

Is it as if a dead person speaks after his death?

Yes.

How is a will probated?

Through petition

Who may ask for the probation with the court?

1. Heirs
2. Interested person
3. Legatees
4. Testator himself during his lifetime
5. Devisees
6. Custodian of the will

Can the heirs devisees or legatees file a petition for the probate of the will of a testator during the
lifetime of the testator?
No. Because the will would take effect only after the death of the testator.

What is the nature of a probate proceeding? (MIR)

It is mandatory, imprescriptible and in rem.

Will estoppel lie in probate proceedings?

No.
Why not?
Presentation and probate of the will is required by public policy. It involves public interest.

When the court acts as a probate court, will it resolve one main issue and …. Issue?
It is the due execution and the validity of the will.

Aside from the testator during his lifetime, is there any other person who can file for the probate of the
will?
The custodian of the will

When will the court acquire jurisdiction over the settlement of the estate?
Once the petition has been filed with the court

What would be the instance wherein the court will acquire jurisdiction over the probate of the will even
if there is no petition for the settlement of the estate?
From the moment the will is delivered to the court.

There are 2 kinds of will. Holographic and notarial will. We said that the court can resolve issues as to
the extrinsic validity of the will, when we talk about the extrinsic validity what do you mean by that?
1. Legal formalities
 2. Testamentary capacity
3. Due execution

If it is a notarial will what are the formalities required by law?

(Page 271 mem aid)
What do you mean by due execution?
What is testamentary capacity?

What is the duty of the person who is in custody of the will?

What is the venue of a probate of a will?

Who may be a party to the probate of a will?

Interested party- any party who stands to be benefited or prejudiced by the probate proceedings

Probate of a will is not barred by statute of limitations, why?

Why is it imprescriptible?

Who is an heir?

Who is a devisee?

Who is a legatee?

An heir inherits the estate of a person who died by relationship, descent, will or legal process wheras a
legatee is any entity or person who received an inheritance from a will.

Legatee – personal property

Devisee- real property

What law shall govern in a probate proceeding, the law at the time of the execution of the will or the
law at the time of the probate of the will?

Probate of the will. (?)

Testator prepared his will. When he died, the civil code was amended. The will had 3 subscribing
witnesses, the new civil code requires 5 witnesses, because of that the will was not allowed, because the
formalities required at the time of the probate of the will was not complied with by the testator. How
will you rule?

Assuming the petition has certain defects, what will the effect assuming the court allowed the probate
of the will?
If the will has been executed in sbstantial complaince with the formalities of the law and the possibility
of fraud is obviated, the will should be admitted to probate

What are the jurisdicitional facts that you need to state in the probate of the will?
 1. Death of the testator
2. Residence at the time of death or province where the estate was left by a decedent who is a
non- resident
3. Fact that the will ahs been delivered to the court

What are the formal requirements for a holographic will?

If in the probate of the will is uncontested what are the requirements?

Notarial will – testimony of at least 1 subscribing witness

What if all the subscribing witness already died, is it enough to present a notary public who notarized
the will?

Assuming there is nobody who knows the handwriting of the testator?

If the probate of a notarial will is contested, what evidence do you need to present?
All subscribing witnesses AND the notary public before whom it was acknowledged.

What if it is a holographic will?

At least 3 witnesses who know the. Handwriting of the testator.

Assuming the will has been lost or destroyed, how will that be probated or allowed?
Depends if it is holographic or notarial

If it is a holographic will, it cannot be probated. Except if there exists a photostatic or a xerox copy
thereof.

What are the evidence that we must present in case of a lost or destroyed will?

1. There is a will that has been duly executed

2. Will is in existence when the testator died
3. Provisions of the will are clearly established

Assuming it is the testator himself who filed for the probate of the will, is there still a need to publish?
NO. There is no need to publish

Why not?
Because it is presumed that it has been duly executed (student answer, don’t know if correct)

How is notice made?

Notice is made through publication.

What are you going to publish, is it the notice?

No, the probate of the will

How is notice made?

Who are entitled to notices?
Heirs, devisees, legatees etc…

Who are the compulsory heirs under the civil code?

What are the grounds of the disallowance of a will?

Can wills that have been proved or probated be allowed here?

If that will which has been probated in a foreign country, can that same will be probated in the
Philippines?
Yes.

What do you call that?

Reprobate

What are the 2 types of estate proceedings. What are these?

How do you call a proceeding if it is instituted in the last residence of the decedent?

How do you call it if it is instituted on where he left his estate?

What if it is in the last known residence of the decedent?

What is the evidence required for the reprobate of a will?

1. Due execution of the will in accordance with the foreign laws

2. Testator has his domicile in the foreign country and not in the Philippines
3. Will has been admitted to probate in such country
4. The fact that the foreign tribunal is a probate court
5. Laws of a foreign country on procedure and allowance of wills

Doctrine of processual presumption

Who are incompetent to serve as executors or administrators?

1. Minor
2. Non- resident
3. Unfit to exercise duties by reason of:
A. Drunkenness
B. Improvidence
C. Want of understanding
D. Want of integrity
E. Conviction for an offense involving moral turpitude.

Who are competent to serve as executor?

Who is an executor?
Who is an administrator?
Can a judge serve as an administrator, executor or trustee? When can a judge act as administrator,
executor or trustee?

If he is acting in a fiduciary capacity which involves the immediate members of his family.

Can you distinguish to me an executor or administrator?

What if the executor refuses the trust?

Assuming the surviving spouse or the next of kin is incompetent?

Principal creditor

Can the court appoint a stranger to administer the estate?

What could be the basis for this preferential right?

Assuming that the judgment of the court was appealed, can the court appoint an administrator, even if
there is an appeal pending?

Yes the court may appoint a special administrator to administer over the estate pending

Can the executor of an executor administer the estate of the first executor?
No.

Can a married woman serve as an executor?

Yes. She would be considered as an administratrix

When would a court appoint a special administrator?

In the appointment of special administrator, are we going to follow the order of appointments?
No.

Distinguish special administrator or regular administrator

Can a regular administrator pay the debt of the estate?

What about the special administrator?

Can executor immediately assume his duties and responsibilities?

No. Executor or administrator must first submit a bond.

How much is the bond?
What is the purpose of the bond?
Intended as an indemnity to the creditor heirs and estate.

How will the liability of the bond be enforced?

What will you claim? How will you make a claim?

What would be the instances when the court may remove executor or administrator?

Assuming it has been discovered that the executor or administrator has an existing debt over the
decedent, will that be a ground for his removal?

The executor or administrator has to make an inventory of an estate, what will be included in the
inventory?
(1:20:00)

Distinguish regular administrator vs special administrator

If a person is appointed as a regular administrator, what would be the remedy available to the party?

What about the appointment of a special administrator, what is the remedy available to the party?

Assuming the testator in the will, the testator specifically stated that the executor need not file the
bond, can the court impose a bond on the executor, even if it was directed otherwise?

Assuming there are 2 or more executors, how will they file a bond, jointly or separately?

Assuming there were breaches in the administration, what will happen?

What will the remedy be aside from removal?

When the executor or administrator filed a bond, there are several conditions, what are these
conditions?

Assuming the letters of administration have already been issued, then after, a will has been discovered,
what will happen?

When should the executor or administrator make a return of the appraisal?

3 months after his appointment

Assuming, the administrator fails to comply with this, is this a ground for removal?

What are the articles that are not to be included in the inventory?

What are the general powers and duties of an administrator or executor?

Can the administrator or executor lease the property?

Can the administrator or executor sell or mortgage the property?

Can anyone prevent the sale or mortgage of the property? How?

What is that administrator appointed by the court under rule 78?