spec pro report
TRANSCRIPT
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 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.
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 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
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 in the court of
administration proceedings.
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:
continuation...
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 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
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
witnesses is fatally defective.
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.