RULE 75

PRODUCTION OF WILL

ALLOWANCE OF WILL

NECESSARY

Sec. 1

Allowance necessary; Conclusive

as to execution. – No will shall pass

either real or personal estate

unless it is proved and allowed in

the proper court. Subject to the

right of appeal, such allowance of

the will shall be conclusive as to its

due execution.

Sec. 2

Custodian of will to deliver. – The

who has custody of a will shall,

within twenty (20) days after he

knows of the death of the testator,

deliver the will to the court having

jurisdiction, or to the executor

named in the will.

Sec. 3

Executor to present will and accept or

refuse trust. – A person named as

executor in a will shall, within twenty

(20) days after he knowns of the death

of the testator, or within twenty (20)

days after knows that he is named

executor if he obtained such knowledge

after the death of the testator, present

such will to the court having

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jurisdiction, unless the will has reached

the court in writing his acceptance of

the trust or his refusal to accept it.

RULE 75

PRODUCTION OF WILL

ALLOWANCE OF WILL

NECESSARY

1.01 EXPLAIN PROBATE OR

ALLOWANCE OF WILLS.

It is the act of proving in court a

document purporting to be the last will

and testament of a certain deceased

person for the purpose of its official

recognition and carrying out its

provision in so far as they are in

accordance with law.

1.02 IS THE ALLOWANCE OF A

WILL NECESSARY?

Yes, the allowance of a will is

necessary. Rule 75, Section 1 is explicit.

No will shall pass either real or personal

estate unless it is proved and allowed in

the proper court.

1.03 IS THE PROBATE OF A WILL

MANDATORY?

Yes, The probate of a will is

mandatory.

1.04 DOES A WILL HAVE FORCE

AND EFFECT EVEN IF NOT

PROBATED?

No. Until admitted to probate, a will

has no effect and no right can be

claimed thereunder.

1.09 IS A DEGREE OF PROBATE

CONCLUSIVE AS TO ITS DUE

EXECUTION?

Yes, such allowance of the will shall

be conclusive as to its due execution as

stated in Rule 75, Section 1.

A degree of probate is conclusive

with respect to the due execution of the

will and it cannot be impugned on any

grounds

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except that of fraud, in any separate or

independent action or proceeding.

1.10 GIVE THE CONCEPT AND

EXTENT OFTHE MEANING OF DUE

EXECUTION.

Due execution covers the following:

1.The will was executed in accordance with

the strict formalities of law;

2.The testator was of sound and disposing

mind at a time of the execution of the will;

3.Consent is not vitiated by any duress, fear

or threats;

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4. The will was not procured by any undue

influence from the beneficiary or by some

other person for his benefit;

5. The signature of the testator is genuine.

1.11 MAY PROBATE COURT PASS UPO N

THE INTRINSIC VALIDITY OF A WILL?

No. In a special proceeding for the

probate of a will, the issue by and large

is restricted to the extrinsic validity of

the will, i.e whether the testator, being

sound mind, freely executed the will in

accordance with the formalities

prescribed by law.

1.12 THE RULE PROVIDES THAT

“SUCH ALLOWANCE OF THE WILL

SHAL BE CONCLUSIVE AS TO ITS

DUE EXECUTION.” EXPLAIN ITS

MEANING.

The allowance of the will precludes any

interested person from questioning the

due execution of the will but not the

intrinsic validity of its testamentary

provision.

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Matter relating to intrinsic validity of a will

are governed by substantive law on

inheritance and partition.

1.15 IS THE DOCTRINE OF

ESTOPPEL APPLICABLE IN PROBATE

PROCEEDING?

No. The doctrine of estoppel is not

applicable in probate proceeding since

the presentation and the probate of a

will are required by public policy.

1.16 WHAT ARE SOME ISSUES THAT

MAY BE BROUGHT UP BEFORE THE

PROBATE COURT?

The determination of whether a

property should be included in the

inventory is within the juridiction of a

probate court.It may also include the

determination of who are the heirs of

the decendent; the validity of a waiver

of

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hereditary right; the status of each heir and

all other matters incidental to the

administration, settlement and distribution of

the estate.

1.17 IS A PROBATE COURT A COURT

OF LIMITED JURIDICTION?

Yes, A probate court is a court of

limited juridiction. As such, it may only

determine and rule upon issues that

relate to settlement of the estate of

deseaced person such as the

administration, liquidation and

distribution of the estate.

A probate court is a tribunal of

limited juridiction. It acts on matters

pertaining to the estate but never on

the right to property arising from

contact.

When question arise as to

ownership of property alleged to be

part of the estate of a deceased person,

but claimed by some other person to be

his property not by virtue of any right of

inheritance from the

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deceased and his estate such question

cannot be determine in the court of

administration proceedings.

1.18 THE GENERAL RULE PROVIDES

THAT A PROBATE COURT CANNOT

DECIDE A QUESTION OF TITLE OF

OWNERSHIP. ARE THERE ANY

EXCEPTION WHERE IT CAN PASS UPON

THE QUESTION OF TITLE TO

PROPERTY?

The probate court may pass upon

the question of title to property on the

following:

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a) The interested parties who are all heirs of

the deceased consent thereto and the

interests of third parties are not

prejudiced;

b) In a provisional manner to determine

whether said property should be included

in or excluded from the inventory, without

prejudice to the final determination of title

in a seperate action.

1.19 DISCUSS THE PRINCIPLE OF

EXCLUSIONARY RULE IN PROBATE

PROCEEDINGS.

The rule provides that when a probate

court first takes cognizance and juridiction

over the settlement of the estate of a

deceased person it shall continue to exercise

juridiction over the same to the exclusion of

other courts. Hence, upon assumption, it

cannot there after be

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divested of such juridiction by the

subsequent acts of the parties as when they

enter into extrajudicial partition or by filling

another petition for settlement in a proper

court of concurrent juridiction.

1.21 IF A NOTARIAL WILL IS FOUND

DEFECTIVE WILL ITS PROBATE BE

DENIED?

Yes, A will whose attestation clause

does not contain the number of pages

on which the will is written is fatally

defective. A will whose attestation

clause is not signed by the instrumental

witnesses is fatally defective.

2.01 WHAT IS THE DUTY OF A

CUSTODIAN OF A WILL UPON

KNOWLEDGE OF THE DEATH OF THE

TESTATOR?

Rule 75 Secton 2 provide that the

person who has custody of a will shall,

within twenty (20) days after he knows

of the death of the testator, deliver the

will to the court having juridicton, or to

the executor named in the will.

3.01 WHAT IS THE DUTY OF AN

EXECUTOR UPON KNOWSLEDGE OF

THE DEATH OF THE TESTATOR?

The executor must present the will

to the court and must accept or refuse

the trust.

Rule 75, Secton 3 expressly state

that a person named as executor in a

will shall, within twenty (20) days after

he knows of

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the death of the testator, or within twenty

(20) days after he knows that he is named

executor if he obtained such knowledge after

the death of the testator present such wll to

the court having juridiction, unless the will

has reached the court in any other manner,

and shall, within such period, signify to the

court in writing his acceptance of the trust or

his refusal to accept it.