Rule 76 Jurisdictional Requirements for Probate of Will

SANTOS VS. CASTILLO

RODRIGUEZ VS. BORJA

PEREZ VS. PEREZ

BASA VS. MERCADO

DE ARANZ VS. GALING

Scope of Inquiry of Proceeding to Probate a Will

Under Scope of Inquiry on Proceeding to Probate a Will Rafael Maninang and Soledad Maninang vs. the Court of Appeals, Hon. Ricardo Pronove Jr. as Judge of the CFI of Rizal, and Bernardo Aseneta Melencio-Herrera, J. 19 June 1982 Issue: WON the probate court acted in excess of its jurisdiction in dismissing the Testate Case on the ground that the will sought to be probated allegedly preterited the compulsory heir Held: Yes Generally, the probate of a will is mandatory. The law enjoins the probate of the Will and public policy requires it, because unless the Will is probated and notice thereof given to the whole world, the right of a person to dispose of his property may be rendered nugatory. Normally, the probate of a will does not look into its intrinsic validity. The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic validity of the Wills in those cases was passed upon even before probate because "practical considerations" so demanded. Moreover, for the parties in the Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in fact, the parties in that case "shunted aside the question of whether or not the Will should be allowed probate." Not so in the case before us now where the probate of the Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will demanded. Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it completely preterited the parents of the testator. In the instant case, a crucial issue that calls for resolution is whether under the terms of the decedent's Will, private respondent had been preterited or disinherited, and if the latter, whether it was a valid disinheritance. Preterition and disinheritance are two diverse concepts. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited."1
1

Neri vs. Atukin, 72 Phil. 325

Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heirs of his share in the legitimate for a cause authorized by law."2 Disinheritance is always "voluntary", preterition upon the other hand, is presumed to be "involuntary."3 The effects are also totally different. Preterition under Art. 854 of the Civil Code shall annul the institution of heir in toto, unless the in the will there are testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Art. 918, such shall also annul the institution of heirs but only insofar as it may prejudice the person disinherited. Regulation/Law Involved: scope of probate of a will Art. 838 No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Applicable Facts Clemencia Aseneta, 81 yrs. old, died at the Manila Sanitarium Hospital (May 21, 1977), leaving a holographic will It is my will that all my real properties located in Manila, Makati, Quezon City, Albay and Legaspi City and all my personal properties shall be inherited upon my death by Dra. Soledad L. Maninang with whose family I have lived continuously for around the last 30 years now. Dra. Maninang and her husband Pamping have been kind to me. ... I have found peace and happiness with them even during the time when my sisters were still alive and especially now when I am now being troubled by my nephew Bernardo and niece Salvacion. I am not incompetent as Nonoy would like me to appear. I know what is right and wrong. I can decide for myself. I do not consider Nonoy as my adopted son. He has made me do things against my will. Soledad Maninang filed Petition for Probate of the Will w/ the CFI of Quezon City (the Testate Case), on June 9, 1977 Resp. Bernardo Aseneta, claiming to be the adopted son and sole heir of decedent, instituted intestate proceedings w/ the CFI of Rizal (July 25, 1977) Resp. judge ordered the Testate and Intestate Cases consolidated before the CFI of Rizal (Dec. 23, 1977) Bernardo filed Motion to Dismiss the Testate Case on the ground that the holographic will was null and void because he, as the compulsory heir, was preterited, citing Neri vs. Akutin, Nuguid vs Nuguid, and Ramos vs. Baldovino Soledad filed Opposition, averring that in a case for probate of a Will, the Court's area of inquiry is limited to an examination of and resolution on the extrinsic validity of the will; and that respondent Bernardo was effectively disinherited by the decedent. CFI granted MTD, and denied MR; appointed Bernardo as Administrator of the intestate estate of deceased on the ground that he is the forced heir, and has not been shown to be unfit to perform the duties of the trust Soledad filed Petn. for Certiorari w/ the CA; denied, ruled that Judges Order of dismissal was final in nature as it finally disposed of the Testate case, and thus proper remedy is appeal Maninang spouses filed Petition to Review the Decision of the CA. Conclusion By virtue of the dismissal of the testate case, the determination of the controversial issue of whether Bernardo has been preterited has not been thoroughly considered. General rule: Probate of a will does not look into its intrinsic validity. Certiorari is the proper remedy for an act done by a Probate Court in excess of his jurisdiction, i.e. dismissing a testate case. Even assuming the existence of the remedy of appeal, we harken to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where the appeal would not afford speedy and adequate relief.

2 3

Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing jurisprudence Sanchez Roman, Estudios de Derecho Civil 2nd edition, Volume 2.o p. 1131

Dispositive: Questioned decision set aside, and Orders of the CFI of Rizal nullified. Special Proceeding for probate of the will remadend to CFI of Rizal for further proceedings. Constantino Acain vs. IAC, Virginia Fernandez and Rosa Diongson Paras, J. 27 October 1987 Issues: (1) WON private respondents have been preterited, warranting the annulment of the institution of heirs in the decedents will Held: Yes, but there is preterition only with regards to the adopted daughter. Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited. nsofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. However, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner. Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child. The general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will. The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will.4 In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preterition. The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical considerations. In Saguimsim v. Lindayag5 the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissal. In Cayetano v. Leonides, one of the issues raised in 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 Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that 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.6 (2) WON petitioner has legal standing to petition for probate of the will Held: No

4 5 6

Nepomuceno vs. CA
6 SCRA 874 [1962]

Nepomuceno vs. CA, supra; Nuguid vs. Nuguid, supra

In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii 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.7 Petitioner is not the appointed executor, neither a devisee, nor a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed. Regulation/Law Involved: scope of probate of a will Applicable Facts: Acain filed petition for probate of the will of the late Nemesio Acain and for issuance to him of letters testamentary, on the premise that Nemesio died leaving a will instituting petitioner and his 7 other siblings as heirs, appointing a certain Atty. Ignacio Villagonzalo as executor, and disposing of his property in favor of his brother Segundo: All my shares that I may receive from our properties, house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, Laura, Flores, Antonio and Jose, all surnamed Acain. Segundo predeceased Nemesio, thus it is the children of Segundo claiming to be heirs. The oppositors-respondents (Virginia, legally adopted daughter of deceased, and his widow Rosa Diongson vda. De Acain) filed a Motion to Dismiss on the grounds that (1) petitioner has no legal capacity to institute these proceedings, (2) he is merely a universal heir, and (3) the widow and adopted daughter have been preterited; MTD denied by trial judge. On petn for certiorari and prohibition w/ preliminary injunction, the IAC granted private respondents petition and ordered the trial court to dismiss the petition for probate of the will. Conclusion Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited 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 before the extrinsic validity of the will was resolved.8 The remedies of certiorari and prohibition were properly availed of by private respondents. Melencio-Herrera, Concurring

7 8

Sumilang vs. Ramagosa, 21 SCRA 1369/1967 Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterition and total intestacy results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten.9 The requisites of preterition are: 1. The heir omitted is a forced heir (in the direct line); 2. The omission is by mistake or thru an oversight. 3. The omission is complete so that the forced heir received nothing in the will.10 On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated otherwise the nullity is partial unlike in true preterition where the nullity is total. In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrence in the result that total intestacy ensued.

Proof Required on Probate Hearing

GAGO VS. MAMUYAC Issue: May a Court deny the probate of a will the original copy of which cannot be located after the testators death on the presumption that the same was cancelled or revoked? Regulation/Law involved: Rule 76 (6) Proof of lost or destroyed will. Certificate thereupon. No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. x x x Applicable Facts:

January 2, 1922 Father Miguel Mamuyac died in Agoo, La Union January 1922 Francisco Gago filed with CFI petition for probate of the will allegedly executed by Miguel on July 27, 1918 Cornelio Mamuyac, et al opposed the petition (CV No. 1144) Hon. Villareal denied the petition on the ground that the deceased had executed a new will and testament on April 16, 1919 Feb. 21, 1925 Gago filed petition for probation of the April 16, 1919 will Cornelio Mamuyac, et al. opposed on the ff. grounds: the said will is a mere copy of the second will executed by Miguel;

10

JBL Reyes and R.C. Puno, An Outline of Civil Law 111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225

the same had been cancelled and revoked during the lifetime of Miguel; and the same was not the last will and testament of the deceased Miguel

Hon. Anastacio Teodoro denied the petition on the ff. grounds Exh. A (the will ) is a mere carbon copy of the original which remained in the possession of the deceased testator that the subject will (of April 16, 1919) had been cancelled and revoked in 1920 per testimonies of:

Carlos Bejar - saw on Dec. 30, 1920 the original of Exh. A actually cancelled by Miguel, who assured Bejar that inasmuch as he had sold him a house and lot, the latter was thereby executing a new testament Narcisa Gago (sister of Miguel who was living with him) - admitted that the will in 1919 was found in the possession of Miguel, and that the original could not be found

Conclusion:

1.

There is uncontroverted positive proof that the will in question had been cancelled in 1920 The law does not require any evidence of the revocation or cancellation of a will to be preserved. Fact that such cancellation or revocation took place must either remain unproved or be inferred from evidence showing that after due search the original cannot be found.

2.

Where a will which cannot be found is shown to have been in the possession of the testator when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. Same presumption arises where iit is shown that testator had access to the will and it cannot be found after his death It shall not be presumed that such will was destroyed by any other person without the knowledge or authority of the testator Such presumption is not conclusive and may be overcome by proof that the will was NOT destroyed by the testator with intent to revoke it.

Disposition:

Judgment affirmed.

GAN VS. YAP Issue: May a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? Regulations/Laws involved: Rule 76 (5) Proof at hearing. What sufficient in absence of contest. x x x In the case of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to. Rule 76 (6) Proof of lost or destroyed will. Certificate thereupon. No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or

accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. x x x Arts. 689, 691, 692, 693, CC Fuero Juzgo (basis of the Spanish Civil Code) the will itself must be compared with specimens of the testators handwriting Applicable Facts: Nov. 20, 1951 Felicidad Esguerra Alto Yap died of heart failure , leaving properties in Pulilan, Bulacan and Manila March 17, 1952 Fausto Gan filed with CFI Manila a petition to probate a holographic will allegedly executed by Felicidad on Nov. 5, 1951 disposing in various shares her properties to her relatives as well as to her surviving husband, Ildefonso Yap Ildefonso opposed, asserting that the deceased had not left any will, nor executed any testament during her lifetime The subject will was never presented in court Petitioner tried to establish its contents and due execution by oral testimonies of 4 witnesses - Sometime 1950 after her last trip abroad, Felicidad mentioned to her cousin Vicente Esguerra her wish to make a will without the knowledge of her husband

- Vicente consulted Fausto Gan, who advised

that the same could be done without any witness provided the same is written entirely in her handwriting, signed, and dated by her - Nov. 5, 1951 Felicidad made a holographic will in the presence of her niece, Felina Esguerra (daughter of Vicente) who was invited to read it - The will was read 2 more times by Felina to relatives of Felicidad who visited on different occasions - Nov. 19, 1951 during Felicidads confinement at UST Hosp., she entrusted the will contained in a purse to Felina, which was later demanded by Ildefonso, although returned hours later - The following day, Felina handed it again to Ildefonso upon the latters demand, but not before going to the toilet to read the will for the last time Oppositor: - Felicidad had been suffering from heart disease for several years before her death - Had suffered several attacks, the most serious of which of which occurred in the early morning of Nov. 5, 1951 - Upon doctors advice, Felicidad stayed in bed and did nothing the whole day, with her husband and personal attendant constantly at her side - Felicidad made no will, and could not have made any will on that day

CFI denied the petition

Conclusion:

1.
2.

The execution and contents of a lost or destroyed will may not be proved by the bare testimony of witnesses who have seen and/or read such will. Unlike ordinary wills, holographic wills may not be proved by testimonial evidence when lost or destroyed because of their nature

Holographic Wills only guarantee of authenticity of a holographic will is the handwriting itself; hence, loss of the will entails the loss of the only medium of proof only one man could engineer the whole fraud by imitating the deceaseds handwriting, showing it to 3 witnesses who may be convinced it is genuine, and testify in good faith to seeing the will in the handwriting of the deceased, which will may have been lost by accident witnesses would testify as to their opinion of the handwriting they allegedly saw

Ordinary Wills loss of an ordinary will which may be proved by the subscribing witnesses and the notary public

difficult to convince 3 witnesses (plus the notary) to deliberately lie

3 subscribing witnesses would be testifying to a fact which they saw (act of the testator subscribing the will)

3.

Even if oral testimony were admissible to establish and probate a lost holographic will, the evidence submitted by the petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that clear and distinct proof required by the Rules. Judgment affirmed.

Disposition:

RODELAS VS. ARANZA Issue: May a holographic will which was lost or cannot be found be proved by means of a photostatic copy? Regulation/Law involved: Rule 76(5) Rule 76 (6) Art. 811, Civil Code Applicable Facts:

January 11, 1977- Marcela Rodelas file with CFI of Rizal a petition to probate the holographic will of Ricardo Bonilla and issuance of letters testamentary in her favor (Sp. Proc. No. 8432) Amparo Aranza Bonilla, et al. opposed on grounds of, among others, estoppel for her failure to produce the will within 20 days of the death of the testator, and for producing NOT the original copy of the will but only an alleged copy thereof Oppositors moved to consolidate Sp. Proc. No. 8432 with Sp. Proc. No. 8275; granted Oppositors moved to dismiss the petition for the probate of the will on the ff. grounds: the alleged holographic will was not a last will but merely an instruction as to the management of the schools founded by the decedent lost or destroyed holographic wills cannot be proved by secondary evidence

Motion denied; MR filed; Court reconsidered and dismissed the petition for probate of the will, citing the case of Gan vs. Yap

Once original copy of the holographic will is lost, a copy hereof cannot stand in lieu of the original

Lapse of more than 14 yrs. From the time of the execution of the will to the death of decedent, fact of loss of the will shows that the decedent had discarded before his death his allegedly missing holographic will

Conclusion: A photostatic copy of a missing holographic will may be allowed because comparison can be made with the standard writings of the testator. Footnotes 8 in Gan vs. Yap case:

Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court. Disposition: Judgment set aside

Binding Force of Trial Court Order Allowing or Disallowing a Will