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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

continuation...

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

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

CONCLUSIVE

DEGREE
AS

OF
TO

PROBATE
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

continuation...

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;

continuation...

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.

continuation...

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

continuation...

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

continuation...

deceased and his estate such question cannot be


determine

proceedings.

in

the

court

of

administration

1.18 THE GENERAL RULE PROVIDES THAT A


PROBATE

COURT

CANNOT

DECIDE

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

EXCLUSIONARY

THE
RULE

PRINCIPLE
IN

OF

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

continuation...

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

defective.

witnesses

is

fatally

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

continuation...

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.