REVIEWER IN SPECIAL

PROCEEDINGS

(RULES 76-79)

SUBMITTED
BY:
CHELSEA
SEÑEREZ
CHERRY
CUTILLAR
CHESKA
CHRISTIANA
SAGUIN
CHOYSTEL
MAE ARTIGAS
CHRISTDELL
RAGAY
 TABLE OF CONTENTS

RULE 76 1

Definition of Probate of a Will 2

Who may petition for allowance of a will 3
Contents of the petition 3
Nature of Probate Proceedings 4
Notice of Time and Place 5
Proof required at the hearing for the allowance of the will 6
Requisites for allowance of lost or destroyed will 6
Proof as to witnesses 6
Grounds for Disallowance of Will 6
Contesting a Will 6
Remedies available to overturn an order denying the probate of a will after lapse of period to appeal
therefrom 6

When wills are contested 6

Proof needed when testator petitions for the allowance of holographic will 6
Issuance of Certificate of Allowance 6

RULE 77 1

Allowance of wills proved outside the Philippines 2

Reprobate of a foreign will in the Philippines 3
Taking judicial notice of foreign laws 3
Duty of petitioner in a reprobate proceeding 4
Effects of allowance of a will 5
Notice and Hearing for allowance 6
When will allowed and effect thereof 6
Matters to be proven during a reprobate proceeding 6
Administration of estate 6
Domiciliary Administration 6
Ancillary Administration 6

RULE 78 1

Persons to administer estate of deceased person 2

Persons incompetent to serve as executors or administrators 3
 Executor vs Administrator 3
Letters Testamentary vs Letters of Administration 4
Rule if some co-executors are disqualified 5
Order of preference in granting Letters of Administration 6
Rationale 6
Is the rule absolute? 6
Preferential rights of legitimate over illegitimate children 6

RULE 78 1

Persons to administer estate of deceased person 2

Persons incompetent to serve as executors or administrators 3
Executor vs Administrator 3
Letters Testamentary vs Letters of Administration 4
Rule if some co-executors are disqualified 5
Order of preference in granting Letters of Administration 6
Rationale 6
Is the rule absolute? 6
Preferential rights of legitimate over illegitimate children 6

RULE 79 1

Opposition to issuance of Letters Testamentary 2

Who may oppose 3
Grounds 3
Contents of Petition 4
Hearing 5
Opposition to Petition for Administration 6
Who may file 6
Contents 6
Grounds 6
Hearing 5

 What is Probate of a Will?

 RULE 76
ALLOWANCE OR DISALLOWANCE OF
WILL

- It is an act of proving in court a document b. The names,

d. name agesof theandperson
residences
for whom
of the
heirs, are
letters legatees
prayed;and devisees of the
purporting to be the last will and
testator or decedent;
testament of a deceased person in order e. If the will has not been delivered to the
that it may be officially recognized, court, the name of the person having
registered and its provisions carried custody of it.
insofar as they are in accordance with
law.  What are the jurisdictional facts that
must be alleged in a petition for
 Does a Petition for Probate of a Will probate of a will?
prescribe?
- The death of the decedent
- NO. A petition for probate of the will does
not prescribe and is not subject to the - His residence at the time of his
statute of limitations. death in the province of where the
probate court is sitting
 Who may petition for Probate of a - If he is an inhabitant of a foreign
Will? country, his leaving his estate in
ANY TIME DURING such province
AFTER TESTATOR’S
TESTATOR’S LIFETIME  What is the nature of probate
DEATH proceedings?
Executor
Devisee - It is a proceeding in rem.
Legatee
Testator
Any other person
interested in the  Time and Place for Proving Will
estate When fixed?  when a will is delivered to,
or a petition for the
 Who is a “person interested in the allowance of a will is filed
estate”? in the court having
jurisdiction
- An interested party is one who would be Purpose  for all concerned to appear
benefited by the estate such as an heir or and may contest the
one who has a claim against the estate allowance of the will
Duration of  three weeks successively,
like a creditor.
publication previous to the time
appointed, in a newspaper
 What are the contents of the petition of general circulation in the
for the allowance of a will? province
a. The jurisdictional facts;  does not need to be
published if petition for
probate has been filed by
the testator himself

 Difference between publication of

notice of time and place under Sec. 3
and personal notice of time and place  What is the proof required at
to heirs under Sec. 4 the hearing for the allowance
Publication of Personal Notice of Time
of the will?
Notice of Time and and Place under Sec. 4  If no person appears to contest
Place under Sec. 3
the allowance of the will, the
- Published in a - If mailed: Personally court may grant the allowance on
newspaper of addressed to the the testimony of one of the
general designated or other subscribing witnesses only, if
circulation three known heirs, such witness testify that the will
weeks legatees, and was executed as is required by
successively, devisees of the law.
previous to the testator resident in
time appointed. the Philippines at their  In the case of a holographic will,
places of residence, it shall be necessary that at least
and deposited in the one witness who knows the
post office with the handwriting and signature of the
postage thereon testator explicitly declare that the
prepaid at least 20
will and the signature are in the
days before hearing.
handwriting of the testator.
- Mailed to the person
named as executor, if  What are the requisites in
he be not the order that a lost or destroyed
petitioner; and to any
person named as co-
will may be allowed?
executor not 1. Execution and validity of the will
petitioning, if their must be established;
places of residence
be known. 2. The will must have been in
existence at the time of the
- If personal service: death of the testator, or shown
given at least 10 days to have been fraudulently or
before the day of the accidentally destroyed in the
hearing. lifetime of the testator without
his knowledge;
- If testator petitions for
allowance of his own 3. The provisions are clearly and
will, notice shall only distinctly proved by at least two
be sent to his credible witnesses.
compulsory heirs.
- vests the court - not a jurisdictional  Proof as to witnesses
with jurisdiction requirement in the
over all persons settlement of estate of When The court may, on motion,
who are deceased persons witnesses direct it to be taken
interested in the do not elsewhere, and may
estate of the reside in authorize a photographic
deceased the copy of the will to be made
province and to be presented to the
witness on his examination.
 When The court may admit the  What are the remedies available to
witnesses testimony of other overturn an order denying the
are dead or witnesses to prove the
probate of a will after the period to
insane or sanity of the testator, and
do not the due execution of the appeal therefrom has already
reside in will; and as evidence of lapsed?
the the execution of the will, it
Philippines may admit proof of the 1. Petition for relief – may be filed
handwriting of the testator on the grounds of fraud,
and of the subscribing accident, mistake or excusable
witnesses, or of any of negligence within a period of 60
them. days after the petitioner learns of
the judgment or final order and
not more than 6 months after
 What are the grounds for disallowing such judgment or final order was
a will: entered.
- Not executed & attested as required by
law; 2. Action for annulment – may
also be filed on the ground of
- Testator was insane, or otherwise extrinsic fraud within four years
mentally incapable to make a will, at the from its discovery, and if based
time of its execution; on lack of jurisdiction, before it is
- It was executed under duress, or the barred by laches or estoppel.
influence of fear, or threats;
 When wills are contested
- It was procured by undue and improper
pressure & influence, on the part of the When Notarial When Holographic
beneficiary, or of some other person for Wills are Contested Wills are Contested
his benefit;  All the subscribing They will be allowed
- The signature of the testator was witnesses, and the if:
procured by fraud or trick, and he did notary in the case • At least three
of wills executed (3) witnesses who
not intend that the instrument should be
under the Civil know the
his will at the time of fixing his signature
Code of the handwriting of the
thereto.
Philippines, if testator explicitly
present in the declare that the will
 What are the requisites in contesting Philippines and not and the signature
a will? insane, must be are in the
produced and handwriting of the
Anyone appearing to contest the will examined, and the testator.
must: death, absence, or • In the absence
insanity of any of of any competent
- State in writing his grounds for them must be witness, and if the
opposing its allowance; satisfactorily court deem it
shown to the court. necessary, expert
- Serve a copy thereof on the
 If all or some of testimony may be
petitioner and other parties
such witnesses are resorted to.
interested in the estate
present in the
Philippines but
 outside the If the will is NOT
If the will is contested:
province where contested:
the will has been  the fact that he  the burden of
filed, their affirms that the disproving the
deposition must be holographic will genuineness and due
taken. and the execution thereof
 If any or all of them signature are in shall be on the
testify against the his own contestant.
due execution of handwriting shall
the will, or do not be sufficient  the testator may, in
remember having evidence of the his turn, present such
attested to it, or genuineness additional proof as
are otherwise of and due may be necessary to
doubtful credibility, execution rebut the evidence
the will may, thereof. for the contestant.
nevertheless, be
allowed if the court
is satisfied from
the testimony of
other witnesses
and from all the
evidence  When is a certificate of
presented that the allowance issued?
will was executed
and attested in the  It is issued if the court is satisfied,
manner required upon proof taken and filed, that the
by law. will was duly executed, and that the
testator at the time of its execution
was of sound and disposing mind,
 Proof needed when testator petitions and not acting under duress,
menace, and undue influence, or
for the allowance of holographic will:
fraud.

 Wills proved and allowed in a foreign

country
RULE 77
According to what?
ALLOWANCE OF WILL PROVED
 according to the laws of such
OUTSIDE OF THE PHILIPPINES AND country
ADMINISTRATION OF ESTATE May be what?
THEREUNDER  may be allowed, filed, and recorded
By whom?
 by the proper Court of First Instance
in the Philippines
 Section 1. Will proved outside
Philippines may be allowed here.
What?  If a will was probated in a foreign
country, must it be reprobated in the
Philippines?
  Can our courts take judicial notice
- YES, because a foreign judgment cannot by of foreign laws?
itself have extra-territorial effect.
Necessity of proceedings for the allowance - NO, foreign laws do not prove
of will already proved outside of the themselves in our jurisdiction and our
Philippines- even if a will has already been courts are not authorized to take judicial
allowed and probated outside of the notice of them. (Ancheta vs Dalaygon,
Philippines, there is still a necessity for a GR No. 139868, June 8, 2006)
judicial order here in the Philippines to allow
such will because a foreign judgment - Foreign judgment cannot by itself have
cannot by itself have extraterritorial effect. extra-territorial effect hence must be
alleged and proved before our courts
If the decedent owns properties in different because the rule is that there is no
countries, separate proceedings must be judicial notice of any foreign law. As
had to cover the same. any other fact, it must be alleged and
proved.
The rule may be correlated to the
following provisions of the Civil code: - If the foreign law is not properly
pleaded or proved, the presumption of
Article 17. The forms and solemnities of identity or similarity of the foreign law to
contracts, wills, and other public our own laws, otherwise known as
instruments shall be governed by the laws processual presumption, applies.
of the country in which they are executed.
Article 815. When a Filipino is in a
foreign country, he is authorized to make
a will in any of the forms established by
the law of the country in which he may  What is the duty of the petitioner in a
be. Such will may be probated in the reprobate proceeding?
Philippines.
- He was duty bound to introduce the
Article 816. The will of an alien who is pertinent law of the foreign country.
abroad produces effect in the Philippines (Ancheta vs Dalaygon)
if made with the formalities prescribed by
the law of the place in which he resides,
or according to the formalities observed  What are the effects of allowance of a
in his country, or in conformity with those will under this rule?
which this Code prescribes. (n)
- the effects of allowance of a will are the
Article 817. A will made in the following:
Philippines by a citizen or subject of
another country, which is executed in 1. Treated as if originally proved and
accordance with the law of the country of allowed in Philippine courts;
which he is a citizen or subject, and
2. Letters testamentary or
which might be proved and allowed by
administration with a will annexed
the law of his own country, shall have the
shall extend to all estates of the
same effect as if executed according to
Philippines;
the laws of the Philippines. (n)
3. The residue of the estate shall be
disposed of as provided by law in
 cases of estates in the Philippines case of an original will presented
belonging to persons who are for allowance.
inhabitants of another state or
country. Same notice prescribed under section
3 & 4 of rule 76, as if it is an original
 Do our rules requires proof that the petition or probate of will.
foreign will must be allowed and
probated first in the country of its
 Section 3. When will allowed, and
execution before it can be probated
effect thereof. 
in the Philippines?
What should appear at the hearing?
- NO, the rules do not require proof that the  If it appears at the hearing that the
foreign will has already been allowed and will should be allowed in the
probated in the country of its execution. Philippines

- Our laws do not prohibit the probate of What is issued?

wills executed by foreigners abroad  certificate of its allowance, signed
although the same have not as yet been by the judge, and attested by the
probated and allowed in the countries of seal of the court
their execution. A foreign will can be given
legal effects in our jurisdiction. Article 816 Where?
of the civil code states that the will of an  shall be filed and recorded by the
alien who is abroad produces effect in the clerk
Philippines if made in accordance with the
formalities prescribed by the law of the
place where he resides, or according to
the formalities observed in his country. What is the effect?
 Section 2. Notice of hearing for
 shall have the same effect as if
allowance. originally proves and allowed in
What? such court.
 a copy of such will, order, decree
both duly authenticated.  What is the effect of an already
allowed will in a foreign court?
Where?
 are filed with a petition for - the effect of an already allowed will in
allowance in the Philippines. a foreign court as if it was originally
proved and allowed in Philippine
By whom? courts.
 by the executor or other person
interested  What are the matters to be proven
Where should it be filed? during a re-probate proceeding?
 in the court having jurisdiction. - The evidence necessary for the
reprobate proceeding or allowance of
What should the court do? wills which have been probated
 such court shall fix a time and outside of the Philippines are as
place for the hearing, and cause follows:
notice thereof to be given as in
 a) That the testator was administration, shall be disposed of
domiciled in a foreign country; according to such will, so far as
such will may operate upon it;
b) That the will has been
admitted to probate in such How about the residue?
country;
 and the residue, if any shall be
c) That the foreign court was, disposed of as is provided by law in
under the laws of said foreign cases of estates in the Philippines
country, a probate court with belonging to persons who are
jurisdiction over the proceedings; inhabitants of another state or
country.
d) The law on probate
procedure in said foreign country Administration under this proceeding is
proof of compliance therewith; limited to administration of the assets of
and a decedent found in the Philippines.
Therefore, even if the foreign court
e) The legal requirement in said where the will was probated, appointed
foreign country for the valid an administrator to administer the
execution of the will. estate of the decedent, such foreign
(Fluemer vs Hix, 54 Phil. 610) appointed administrator has no power
to administer the estate of the same
decedent situated in the Philippines and
- The necessity of presenting
so another administrator must be
evidence on the foreign laws upon appointed by a Philippine court for that
which the probate in the foreign purpose
country is based, is impelled by the
fact that our courts cannot take
judicial notice of them.  What is Domiciliary
Administration?

- Domiciliary administration is the

administration of the estate in the
 Section 4. Estate, how administered. country where he died a resident.
Domiciliary administration means the
What? settlement and distribution of a
 When a will is thus allowed, the decedent's estate in the state where
court shall grant letters the defendant was domiciled at
testamentary, or letters of death.
administration with the will
annexed,  What is Ancillary Administration?
Where? - It is an administration of the estate
 and such letters testamentary or of situated in another country. An
administration, shall extend to all Ancillary administrator is an
the estate of the testator in the administrator appointed by court in a
Philippines. state in which the descendant was not
domiciled.
How?
 Such estate, after the payment of - Example: When a person dies
just debts and expenses of intestate owning property in the
 country of his domicile as well as in a authority in the United States. The
foreign country, administration is had ancillary administration is proper,
in both countries. That which is whenever a person dies, leaving in a
granted in the jurisdiction of country other than that of his last
decedent's last domicile is termed the domicile, property to be administered
principal administration, while any in the nature of assets of the
other administration is termed the decedent, liable for his individual
ancillary administration. debts or to be distributed among his
heirs. 
- The reason for the ancillary
administration is because a grant of - Those 2 proceedings are separate
administration does not of its own (ex and independent and ancillary
proprio vigore) have any effect beyond administration is that which is
the limits of the country in which it is provided under Rule 77.
granted. Hence, an administrator
appointed in a foreign state has no

RULE 78 - Is in opinion of the court unfit to execute

the duties of the trust by reason of
LETTERS TESTAMENTARY AND OF
drunkenness, improvidence or want of
ADMINISTRATION, WHEN AND TO understanding or integrity, by reason of
WHOM ISSUED conviction of an offense involving moral
turpitude.

 Difference between Executor and

 Who may administer the estate of a Administrator
deceased person?
- Executor or Administrator EXECUTOR ADMINISTRATOR
 Named  Appointed by the
expressly in intestate court to
 Who will administer the estate if a the will by the administer the
person dies intestate or failed to name deceased estate of the
an executor in his will? deceased
- The decedent’s estate shall be judicially
administered and the competent court  May a married woman serve as
shall appoint a qualified administrator in executrix or administratix?
the order established in Section 6 of
Rule 78. - YES, she may serve provided she is
not disqualified. The marriage of a
single woman shall not affect her
 Who are incompetent to serve as
authority to serve under previous
executors or administrators? appointment.
- Minor
 Letters Testamentary vs Letters of
- Not a resident of the Philippines Administration
Letters Letters of
 Testamentary Administration creditors, if may be granted to
Authority issued Authority issued by the one or more of the principal
to an executor court to a competent creditors, if competent and willing
named in the will person to administer to serve;
to administer the the estate of deceased
estate who died intestate (c) If there is no such creditor
competent and willing to serve, it
may be granted to such other
 Rule if some co-executors are person as the court may select.
disqualified.
- Letters testamentary shall be issued to
those who are competent, accept the
trust and give bond. Where some co-  Rationale behind rule on Order of
executors are disqualified, others who Preference.
are qualified may thereby act.
- Those who will reap the benefit of a wise,
speedy and economical administration of
 Order of Preference in granting the estate or in the alternative, suffer the
Letters of Administration. consequences of waste, improvidence or
mismanagement, have the highest interest
- The Letters of Administration shall be ad most influential motive to administer the
granted in the following order: estate correctly.

(a) To the surviving husband or wife,  Is the rule on Order of Preference

as the case may be, or next of
kin, or both, in the discretion of absolute?
the court, or to such person as
such surviving husband or wife, or - General Rule: The court cannot set aside
next of kin, requests to have the order of preference.
appointed, if competent and
willing to serve; - Exception: Such rule is not absolute for it
depends on the attendant facts and
(b) If such surviving husband or wife, circumstances of each case.
as the case may be, or next of
kin, or the person selected by
 Do legitimate children have
them, be incompetent or
unwilling, or if the husband or preferential and superior rights over
widow, or next of kin, neglects for illegitimate children?
thirty (30) days after the death of
the person to apply for - No, legitimate children do not have
administration or to request that preferential rights over illegitimate children.
administration be granted to some The principal consideration is the interest
other person, it may be granted to in said estate of the one to be appointed
one or more of the principal as administrator.

 Who may file an opposition to the

RULE 79 issuance of Letters Testamentary?
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY, PETITION AND
CONTEST FOR LETTERS OF
ADMINISTRATION
 - Any interested person in an estate - GR: The interest here should be
proceeding is one who is benefited from direct and material. An indirect or
the estate. (Section 1 of Rule 79) contingent interest is not enough.
- Example: This may be an heir or - Exception:
someone who has a claim against the
estate such as a creditor. (Ugenio Veraguth and Bonifacia
Montilla vs Rosario Montilla, et al.
 What are the grounds that is allowed GR 45171)
by the court in order for the In the case at bar, the petitioners are
opposition to prosper? shareholders of the company and
that the deceased was part of the
1. Incompetency board of directors of the same
2. The oppositor’s own right to company. He died while there was
administration an ongoing case against the
company’s board for fraud and if
 The oppositor should be able
proven that there were fraudulent
to establish his interest over
acts, he is to be jointly and severally
the estate which establishes
liable to the shareholders as a
his right to be an
member of the board. Upon his
administrator. It is also
death, the petitioners prayed to be
important to note that the
granted an administrator role of the
petition is not necessarily for
said estate. This was contested by
his own intent to administer
the respondent who was the widow
but he also has the right to
of the deceased claiming that the
nominate any competent
petitioners were not interested
person which includes
parties since they were not creditors,
persons named in the same
heirs nor next of kin to have an
opposition.
interest on the estate.
(Section 4, Rule 79)
However, the court held that the
petitioners as shareholders who
 Who is considered as a “next of kin” instituted the complaint against the
of the decedent? board where the deceased is a
member of has a contingent claim to
- This refers to those whose the estate and therefore allowed to
relationship with the decedent is be an administrator. This is one of
such that they are entitled to share the cases where a contingent
in the estate as distributes. interest is allowed by the law to
petition for letters of administration.
 Who is considered as an interested  Will the lack of interest automatically
party? dismiss the petition?
- An interested party in an estate
- If the original petitioner actually lacks
proceedings is one who would be
interest, the petition will not automatically
benefitted in the estate.
be dismissed since the lack of interest of
(Heirs of Austino Mesina vs Heirs the original petitioner may be cured by the
of Domingo Fian Sr., GR 201816) subsequent appearance of a proper
interested person.
 What is the effect in the delay in filing - While opposing the letters of
for the opposition? testamentary, the court also allows the
simultaneous filing of a petition for
- The decedent died intestate in August letters of administration. In this way, in
1917. In 1935, one heir, who alleged to be any case that the opposition is
an acknowledged natural daughter of the sustained, the whole procedure of
decedent, petitioned for letters of having to file for a petition for letters of
administration. The court appointed the administration would not take too long
respondent and the husband of the alleged and would not clog the courts too.
heir to be co-administrators of the
(Section 1 Rule 79)
property. Subsequently, the petitioners
who were siblings of the deceased claimed
against his estate alleging to be creditors  What should be the contents when
of the deceased. filing for letters of administration?
- The Supreme Court held that their claims 1. The juridical facts. These facts
are barred by laches for failing to institute should contain that the person
the proper estate proceedings within the whose estate the letters are prayed
period of three years. They granted the for is in fact dead. If he is a non-
petition of the daughter due to her not resident, it should be particularly
knowing of the death of her father but the stated that he left assets in the
court could not extend the same to the Philippines.
petitioners having claimed that they were
the ones who took care of him until his 2. It should contain the names, ages,
and residences of the Heirs as well
death so they should have instituted the
proceeding and should not have waited for as of his creditors to properly identify
their personality.
the heir to institute for them to ride in on
the petition. 3. It should also contain the probable
value and the character of the
(Intestate estate of the deceased Julio property of the estate.
Magbanua vs Manuel Akol and Zacarias
4. The name of the person for whom
Dormal, et al., GR L-47971)
the letter of administration are
prayed for should appear.
 Is there a form prescribed on how to
file for an opposition to the issuance of (Section 2, Rule 79)
letters testamentary?
 Who shall fix the time and place for
- It shouldbe in writing stating the grounds the hearing?
why letters testamentary should not be
issued to the persons named therein as - It is the court who shall fix the time
executors. and place for the hearing of the
petition. They are also to cause
notice of such hearing to be given to
 Is the simultaneous filing of a the known heirs, creditors and other
petition for letters of interested parties to the estate of the
administration while the opposition decedent.
of letters testamentary proper? (Section 3, Rule 79)
 Note: (Section 5, Rule 79) During
the hearing of the opposition, the
petitioner or oppositor must prove
that the notice has been given to all
parties as required. The notices as
must have been duly given and that
the court shall have heard the proofs
of the parties in support of their
allegations.

 What happens when a subsequent

appearance of a person with a better
right appears after the issuance of the
letters of administration?

- Any qualified applicant may be granted

the issuance of the letters of
administration. Even if there is a more
competent person or a person having a
better right shall subsequently appear,
the fact that they failed to appear when
they were notified to claim the issuance
of the letters themselves does not give
them the right to oppose the qualified
applicant to claim. Since they were not
able to appear, they are estopped to
claim for themselves.

- The administration and settlement of

estate should not be delayed due to the
indifference of the person who even if
having a better right failed to do their
part.