SANCHEZ ROMAN | SPECIAL PROCEEDINGS | Atty.

Kristine Ferrer | 1

So, if insane or dead, do not require. If in another country, that is

SPECIAL PROCEEDINGS
Based on the Lectures of Atty. Kristine Ferrer
Transcribed by: Jamaica P. Hechanova
1:17:00 – 1:24:42
So, the preceding paragraph, during that jurisdictional hearing, you
have to show to the court compliance of the requirements –
jurisdictional facts (death of testator, probable value of estate as
shown in the petition for probate of the will, that is why you will
mark the petition for probate during the initial hearing).
What is your proof that the decedent is a resident of a particular
place? Barangay Certificate. You also have to mark this.
Also, prove publication of the notice of hearing,
subject to debate as we now have video conferencing.
Section 9. Grounds for disallowing will. — The will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(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 undue and improper pressure and
influence, on the part of the beneficiary, or of some
other person for his benefit;
(e) If the signature of 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.

When all of these things have been proven, the court will say that it
finds the petition sufficient in form in substance. It will then take
jurisdiction for the probate of the last will and testament. THIS IS
NOT YET THE GRANT OF THE PROBATE. This is what is meant
by Section 5.

Section 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. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.

This is very difficult. Unless you have a photographic memory and

have seen the last will and testament of the person, then you can
prove the will and its contents. The risk is applicable to holographic
wills. However, if it is a notarial will, worry no more as the Notarial
Archives has a copy of that. The Executive Clerk of Court has a copy.
There is a repository for notarized documents. This is why last wills
are usually notarial form.

For instance, the father executed two codicils. What happened was
that the 2nd codicil lacked the signature of one of the witnesses. Under
the law, it is invalid. So, the associate lawyer searched the notarial
archives and requested copy. In that copy, witness was able to sign.
So, will was admitted to probate. That is how important notarial
archives is.

Section 7. Proof when witnesses do not reside in province. — If

it appears at the time fixed for the hearing that none of the
subscribing witnesses resides in the province, but that the
deposition of one or more of them can be taken elsewhere, the
court may, on motion, direct it to be taken, and may authorize a
photographic copy of the will to be made and to be presented to
the witness on his examination, who may be asked the same
questions with respect to it, and to the handwriting of the testator
and others, as would be pertinent and competent if the original
will were present.

This is already obsolete because we can conduct trials or cross-

examination or examination of witnesses through video conferencing.
Distance is no longer an issue.

Section 8. Proof when witnesses dead or insane or do not reside

in the Philippines. — If the appears at the time fixed for the
hearing that the subscribing witnesses are dead or insane, or that
none of them resides in the Philippines, the court may admit the
testimony of other witnesses to prove the sanity of the testator, and
the due execution of the will; and as evidence of the execution of
the will, it may admit proof of the handwriting of the testator and
of the subscribing witnesses, or of any of them.

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