SPECIAL PROCEEDINGREPORTING

Jeuela Joey L. Quiñones Law 3E

DISALLOWANCE OF WILL (Rule 76)

Section 9. Grounds for disallowing will KEYWORD: ExITUS

(a) If NOTExecuted and attested as required by law;

 Formal solemnities as required by law
i. Notarial Wills – must be written in a specific format and
requires at least three credible witnesses. It should be
acknowledged before a notary public in order to ensure that it
was made by the testator and in the presence of the witnesses.
ii. Holographic Wills–must be entirelyhandwritten, dated and
signed by the hand of the testator himself. It is subject to no
other form, and need not be witnessed
 Art. 854 of NCC: Preterition of compulsory heirs (Nuguid v Nuguid)
 Exception: Substantial Compliance Rule (NCC Art. 809) – if the
possibility of bad faith and fraud obviated, defects and imperfections
in the form of attestation or in the language can be overlooked

(b) If the testator was Insane, or otherwise mentally incapable to make a will, at
the time of its execution;

(c) If it was executed under duress, or the influence of fear, or Threats;

(d) If it was procured by Undueand improper pressure and influence, on the part
of the beneficiary, or of some other person for his benefit;

(e) If the Signatureof the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his
signature thereto.
Section 10. Contestant to file grounds of contest. —
(a) must state in writing his grounds for opposing its allowance, and
(b) mustserve a copy thereof on the petitioner and other parties interested in the
estate.
Section 11. Subscribing witnesses produced or accounted for where will contested. —

Notarial Wills- allcapable subscribed witnesses present in the Philippines, and

the notary public

- WITNESSES’ DEPOSITION MUST BE TAKENif the

subscribed witnesses are present in the Philippines but outside the
province where the will has been filed,
- ALLOWANCE OF WILL: If any or all of them testify against the
due execution of the will, the will may be allowed if the court is
satisfied from the testimony of other witnesses and from all the
evidence presented that the will was executed and attested in the
manner required by law.

Holographic Wills - at least three (3) witnesses who know the handwriting of
the testator explicitly declare that the will and the signature are in the
handwriting of the testator;
- in the absence of any competent witnesses, and if the court deem it
necessary, expert testimony may be resorted to.

Section 12. Proof where testator petitions for allowance of holographic will. —

Where the testator himself petitions for the probate of his holographic will and
no contest is filed, the fact that the testator affirms that the holographic will and the
signature are in his own handwriting, shall be sufficient evidence of the genuineness
and due execution thereof.
 If the holographic will is contested, the burden of disproving the genuineness
and due execution thereof shall be on the contestant.
Section 13. Certificate of allowance attached to prove will. To be recorded in the Office of
Register of Deeds. —

Certificate of allowance
- signed by the judge, and attested by the seal of the court shall be attached to
the will and the will and certificate filed and recorded by the clerk.
- Attested copies of the will devising real estate and of certificate of
allowance thereof, shall be recorded in the register of deeds of the
province in which the lands lie.
- issued when the court is satisfied, upon proof that
1) that the will was duly executed,
2) testator at the time of its execution was of sound and disposing
mind,
3) and not acting under duress, menace, and undue influence, or
fraud,

Summary of required testimonies for the Purpose of Probate

UNCONTESTED
Notarial Will
The Court may grant
allowance thereof on the
basis of the testimony of one
(1) of the subscribing
witnesses only, if such
witness testifies that the will
was executed as is required
by law
(ROC Rule 76 Sec.5)
If all subscribing witnesses
CONTESTED
All the subscribing
witnesses, and the notary
public must testify as to due
execution and attestation of
the will
(ROC Rule 76, Sec. 11)
If any or all of them testify
against the due execution of
the will, or do not remember
having attested to it, or are
 reside outside the province,
DESPOSITION is allowed
and the court may authorize
a photographic copy of the
will to be made and to be
presented to the witness on
otherwise of doubtful
his examination
credibility, the will may
(ROC Rule 76, Sec. 7)
nevertheless, be allowed if
the court is satisfied from
If all subscribing witnesses
the testimony of other
are dead, insane or none of
witnesses and from all the
them resides in the
evidence presented that the
Philippines: The Court may
will was executed and
admit testimony of other
attested in the manner
witnesses to prove the sanity
required by law.
of the testator and the due
-instance where a party may
execution of the will, and as
impeach his own witness-
evidence of the execution of
(ROC Rule 76, Sec. 11)
the will, it may admit proof
of the handwriting of the
testator and of the
subscribing witness or of
any of them
(ROC Rule 76, Sec.8)

Holographic Will
At least one (1) witness who
knows the handwriting and
the signature of the testator
explicitly declare that the
will and the signature are in
the handwriting of the
The will shall be allowed if
at least three (3) witnesses
who know the handwriting
of the testator explicitly
declare that the will and the
signature are in the
 handwriting of the testator.
(ROC 76 Rule 76, Sec. 11)

General Rule:
A holographic will if
testator destroyed cannot be
(ROC Rule 76, Sec. 5) probated

Exception:
If there exists a photostatic
or Xerox copy

In the absence of any competent witnesses, and if the court

deem it necessary, expert testimony may be resorted to
(ROC Rule 76, Secs. 5 and 11)

The burden of disproving the

Holographic Will petitioned
by the Testator himself
The fact that the testator
affirms that the holographic
will and the signature are in
his own handwriting, shall
be sufficient evidence of the
genuineness and due
execution thereof.
(ROC Rule 76, Sec. 12)
genuineness and due
execution thereof shall be on
the contestant. 
(ROC Rule 76, Sec.12)
The testator may, in his turn,
present additional proof as
may be necessary to rebut
the evidence for the
contestant
(ROC Rule 76, Sec. 12)

REPROBATE (Rule 77)

  is a special proceeding to establish the validity of a will proved in a foreign country
 it is the re-authentication or re-probate of a will already probated and allowed in a
foreign country
 Does not require that a will of a foreigner has already been probated abroad if
presented for the first time in the Philippines
 Governing law: Art. 816 of the NCC
 States that the will of an alien who is abroad produces effect in the 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.

Section 1. Will proved outside Philippines may be allowed here. —

Requisites for will proved outside may be allowed in the Philippines:
a) That the testator was domiciled in the foreign country
b) That the will has been admitted to probate in such country
c) That the foreign court was, under the laws of said foreign country, a probate
court with jurisdiction over the proceedings
d) The law on probate proceeding in said foreign country and proof of
compliance
e) The legal requirement in said country for the valid execution of the will

Section 2. Notice of hearing for allowance. —

Petition for Reprobate accompanied with:
a) Authenticated Copy of the Will
b) Authenticated Order or Decree of the Allowance

Section 3. When will allowed, and effect thereof. —

If it appears at the hearing that the will should be allowed in the Philippines,
the shall so allow it, and a certificate of its allowance, signed by the judge, and
attested by the seal of the court, to which shall be attached a copy of the will,
shall be filed and recorded by the clerk, and the will shall have the same effect
as if originally proves and allowed in such court.
Section 4. Estate, how administered. —
Effects of Admission of a foreign Will
a) the court shall grant letters testamentary, or letters of administration with
the will annexed
b) The said letters testamentary or of administration, shall extend to all the
estate of the testator in the Philippines.
c) The estate shall be disposed of following the will after just debts and
expenses of administration are paid
d) Any and the residue, if any shall be disposed of as is provided by law in
cases of estates in the Philippines belonging to persons who are inhabitants
of another state or country.

EFFECTS OF PROBATE
 It is conclusive as to the execution and validity of will (even against the State)
 A criminal case against the forger may not lie after the will has been probated.

Selected Cases:

G.R. No. 176831 January 15, 2010

UY KIAO ENG, Petitioner,vs.
NIXON LEE, Respondent.

FACTS
Respondent Nixon Lee filed, on May 28, 2001, a petition for mandamus with
damages, against his mother petitioner UyKiaoEng to compel the production of his deceased
father’s holographic will who he alleged to be within his mothers’ custody

Petitioner prayed for the case to be dismissed for failure to state a cause of action and
for lack of cause of action, petitioner filed demurrer of evidence, contending that her son
failed to prove or disprove that she unlawfully neglected the performance of an act which the
law specifically enjoined as a duty resulting from an office, trust or station, for the court to
issue the writ of mandamus.

RTC dismissed petition. Appeal to the CA reversed the decision and ruled in favor of
respondent. Petitioner filed a MOR, claiming mandamus is not the proper remedy

ISSUE
WON mandamus is the proper remedy

RULING

Mandamus is a command issuing from a court of law of competent jurisdiction, in the

name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to
some corporation or person requiring the performance of a particular duty therein specified,
which duty results from the official station of the party to whom the writ is directed or from
operation of law.

It is essential to the issuance of a writ of mandamus that he should have a clear legal
right to the thing demanded and it must be the imperative duty of respondent to perform the
act required. However important principle is that there should be no plain, speedy and
adequate remedy in the ordinary course of law other than the remedy of mandamus being
invoked

The SC, without unnecessarily ascertaining whether the obligation involved here--the
production of the original holographic will--is in the nature of a public or a private duty,
ruled that the remedy of mandamus cannot be availed of by respondent Lee because there
lies another plain, speedy and adequate remedy in the ordinary course of law. An adequate
remedy is provided by Rule 75, Sections 2 to 5, of the ROC for the production of the original
holographic will.

G.R. No. L-23445             June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

FACTS
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single,
without descendants, legitimate or illegitimate. Surviving her were her legitimate parents,
Felix Nuguid and Paz SalongaNuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto,

Petitioner RemediosNuguidaddmitted for probate a holographic will allegedly

executed by Rosario Nuguid, the will states remedios is the sole heirto all fo her properties

Felix Nuguid and Paz SalongaNuguid, parents of the dedcedent, moved to dismiss on
the ground of absolute preterition.petitoners — who are compulsory heirs of the deceased in
the direct ascending line — were illegally preterited and that in consequence the institution is
void.

ISSUE
WON the will is allowed probate
RULING
The SC ruled that institution, by itself, is null and void. And, intestate succession
ensues.

Carefully worded and in clear terms, Article 854 of CC offers no leeway for inferential
interpretation. The pretetion of compulsory heirs annuls the institution of heir. Legacies and
devises merit consideration only when they are so expressly given as such in a will. Nothing
in Article 854 suggests that the mere institution of a universal heir in a will — void because
of preterition — would give the heir so instituted a share in the inheritance

There must be, in addition to such institution, a testamentary disposition granting him
bequests or legacies apart and separate from the nullified institution of heir.

G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner,vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO
ANG, CARMELITA JUGO, respondents.

FACTS
Martin Jugo died on July 16, 1974 leaving behind a Will and Testament stating that
Petitioner Sofia J. Nepomuceno as his sole heir and only executor of his estate. It is also
stated in the Will that the testator was legally married to a Rufina Gomez whom he had two
legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his
lawfully wedded wife and had been living with petitioner as husband and wife.

Petitioner filed a petition for the probate of the last Will and Testament of the
deceased Martin Jugo. Rufina Gomez and her children filed an opposition alleging that the
execution of the Will was procured by undue and improper influence considering that
petitioner having admitted her living in concubinage with the testator.
 The lower court denied the probate of the Will on the ground that the testator admitted
in his Will to cohabiting with the petitioner. Petitioner appealed to CA. The respondent court
set aside the decision of the lower court and declared the Will to be valid except that the
devise in favor of the petitioner is null and void.

ISSUE
WON the CA acted in excess of its jurisdiction when after declaring the last Will and
Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic
validity of the testamentary provision.

RULING
The SC ruled that the respondent court acted within its jurisdiction when after
declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the
Will and declared the devise in favor of the petitioner null and void.

The trial court acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established as The Will is void under Article 739.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at
the time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.

G.R. No. 123486           August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.

FACTS
Respondents Evangeline Calugay, Josephine Salcedo and EufemiaPatigas, devisees
and legatees of the holographic will of the deceased MatildeSeñoVda. deRamonal,filed for
probate of the holographic will of the deceased MatildeSeñoVda. deRamonal.

Petitioners Eugenia RamonalCodoy and Manuel Ramonal filed an opposition alleging

that the holographic will was a forgery and that the same is even illegible.

Respondents presented six (6) witnesses and various documentary evidence.

Petitioners instead of presenting their evidence, filed a demurrer6 to evidence, claiming that
respondents failed to establish sufficient factual and legal basis for the probate of the
holographic will of the deceased MatildeSeñoVda. deRamonal.

RTC denied the petition for probate for insufficiency of evidence and lack of merits.
Appeal to the CA reversed the decision, stating that the unrebutted testimony of appellant
Evangeline Calugay and witness MatildeRamonalBinanay, convinced the court of the
authenticity of the will.

The CA disregard the requirement of three witnesses in case of contested holographic

will, citing the decision in Azaola vs. Singson ruling that Art 811 witness requirement is
merely directory and not mandatory. What the law deems essential is that the court is
convinced of the authenticity of the will.

ISSUE
WON the provisions of Article 811 of the Civil Code are permissive or mandatory in
requiring that at least three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator
RULING
The SC is convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a
statute commonly denotes an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word "shall," when used in a statute is
mandatory.

An exhaustive and objective consideration of the evidence is imperative to establish

the true intent of the testator, which is why if the holographic will is contested, that law
requires three witnesses to declare that the will was in the handwriting of the deceased. It is
the goal of the law to eliminate the possibility of a false document being adjudged as the will
of the testator