special proceeding

1. RULE 75
PRODUCTION OF WILL
ALLOWANCE OF WILL
NECESSARY

2. 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.

3. 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.

4. 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

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jurisdiction, unless the will has reached the
court in writing his acceptance of the trust or
his refusal to accept it.

6. RULE 75
PRODUCTION OF WILL
ALLOWANCE OF WILL
NECESSARY

7. 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.

8. 1.02 IS THE ALLOWANCE OF A WILL
NECESSARY?
Yes, the allowance of a 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.

9. 1.03 IS THE PROBATE OF A WILL
MANDATORY?
Yes, The probate of a will is mandatory.

10. 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.

11. 1.09 IS A DEGREE OF PROBATE
CONCLUSIVE AS TO 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

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except that of fraud, in any separate or
independent action or proceeding.

13. 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;

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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.

15. 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.

16. 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.

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Matter relating to intrinsic validity of a will are
governed by substantive law on inheritance and
partition.

18. 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.

19. 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

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hereditary right; the status of each heir and all other
matters incidental to the administration, settlement
and distribution of the estate.

21. 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.

22. 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

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deceased and his estate such question cannot be
determine in the court of administration
proceedings.

24. 1.18 THE GENERAL RULE PROVIDES THAT A
PROBATE COURT CANNOT DECIDE A
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.

26. 1.19 DISCUSS THE PRINCIPLE OF
EXCLUSIONARY RULE IN 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

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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.

28. 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 witnesses is fatally
defective.

29. 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.

30. 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

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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.