RULE 76 TO 77
RODRIGUEZ v. DE BORJA GR No.L-21993, June 21, 1966 17 SCRA 418
FACTS: Private respondents Apolonia Pangilinan and Adelaida Jacalan delivered to the
Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez, meanwhile
the petitioners filed a petition before the court to examine the purported will but which was
later withdrawn, and a petition for the settlement of the intestate estate of Fr. Rodriguez was
subsequently field in a another court in Rizal. The petitioners now sought the dismissal of the
special proceeding on the settlement of the decedent's estate based on the purported will,
questioning therefore the jurisdiction of CFI Bulacan.
ISSUE: Does CFI Bulacan have jurisdiction to proceed with the testate proceedings?
HELD: Yes. The jurisdiction of the Court of First Instance of Bulacan became vested upon
the delivery thereto of the will of the late Father Rodriguez, even if no petition for its
allowance was filed until later, because upon the will being deposited the court could, motu
proprio, have taken steps to fix the time and place for proving the will, and issued the
corresponding notices conformably to what is prescribed by section 3, Rule 76, of the
Revised Rules of Court. Moreover, aside from the rule that the Court first taking cognizance
of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all
other courts, intestate succession is only subsidiary or subordinate to the testate, since
intestacy only takes place in the absence of a valid operative will.
CYNTHIA V. NITTSCHER, vs. DR. WERNER KARL JOHANN NITTSCHER
(Deceased), ATTY. ROGELIO P. NOGALES and THE REGIONAL TRIAL COURT
OF MAKATI
Facts :
Dr. Werner Karl Johann Nittscher filed with the RTC of Makati City a
petition for the probate of his holographic will and for the issuance of letters
testamentary to herein respondent Atty. Rogelio P. Nogales. The probate
court issued an order allowing the said holographic will. On September 26,
1994, Dr. Nittscher died. Hence, Atty. Nogales filed a petition for letters
testamentary for the administration of the estate of the deceased. Dr.
Nittscher’s surviving spouse Cynthia V. Nittscher, she moved for the
dismissal of the said petition. However, the court petitioner’s motion to
dismiss, and granted respondent’s petition for the issuance of letters
testamentary. Motion for reconsideration denied for lack of merit. On appeal,
the CA dismissed the case.
Cynthia contends that Nogales petition lacked a certification against
forum shopping. She adds, the RTC has no jurisdiction over the subject
matter because Dr. Werner was allegedly not a resident of the Philippines.
Issue : WON Cynthia’s contentions are correct .
Held :
No. Revised Circular No. 28-91 and Administrative Circular No. 04-
94 of the Court require a certification against forum-shopping for all
initiatory pleadings filed in court. However, in this case, the petition for the
issuance of letters testamentary is not an initiatory pleading, but a mere
continuation of the original petition for the probate of Dr. Nittscher’s will.
Hence, respondent’s failure to include a certification against forum-shopping
in his petition for the issuance of letters testamentary is not a ground for
outright dismissal of the said petition.
Section 1, Rule 73 of the Rules of Court provides:
SECTION 1. Where estate of deceased persons settled. – If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of administration granted, and his
estate settled, in the Court of First Instance (now Regional Trial Court) in
the province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance (now Regional
Trial Court) of any province in which he had estate. … (Emphasis supplied.)
In this case, the RTC and the Court of Appeals are one in their finding
that Dr. Nittscher was a resident of Las Piñas, Metro Manila at the time of
his death.
Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in the RTC
of Makati City, which then covered Las Piñas, Metro Manila, the petition for
the probate of his will and for the issuance of letters testamentary to
respondent.
Furthermore, Dr. Nittscher asked for the allowance of his own will. In this
connection, Section 4, Rule 76 of the Rules of Court states:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or
personally. – …
If the testator asks for the allowance of his own will, notice shall be sent
only to his compulsory heirs.
In this case, records show that petitioner, with whom Dr. Nittscher
had no child, and Dr. Nittscher’s children from his previous marriage were
all duly notified, by registered mail, of the probate proceedings. Petitioner
even appeared in court to oppose respondent’s petition for the issuance of
letters testamentary and she also filed a motion to dismiss the said petition.
She likewise filed a motion for reconsideration of the issuance of the letters
testamentary and of the denial of her motion to dismiss. We are convinced
petitioner was accorded every opportunity to defend her cause. Therefore,
petitioner’s allegation that she was denied due process in the probate
proceedings is without basis.
Azaola v. Singson
109 P 102
FACTS:
Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957. Petitioner
submitted for probate her holographic will, in which Maria Azaola was made the sole
heir as against the nephew, who is the defendant. Only one witness, Francisoco
Azaola, was presented to testify on the handwriting of the testatrix. He testified that
he had seen it one month, more or less, before the death of the testatrix, as it was
given to him and his wife; and that it was in the testatrix’s handwriting. He presented
the mortgage, the special power of the attorney, and the general power of attorney,
and the deeds of sale including an affidavit to reinforce his statement. Two residence
certificates showing the testatrix’s signature were also exhibited for comparison
purposes.
The probate was opposed on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner
and his wife, and (2) that the testatrix did not seriously intend the instrument to be
her last will, and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested; and because
the lone witness presented “did not prove sufficiently that the body of the will was
written in the handwriting of the testatrix.”
Petitioner appealed, urging: first, that he was not bound to produce more than one
witness because the will’s authenticity was not questioned; and second, that Article
811 does not mandatorily require the production of three witnesses to identify the
handwriting and signature of a holographic will, even if its authenticity should be
denied by the adverse party.
ISSUE:
W/N Article 811 of the Civil Code is mandatory or permissive.
HELD:
Article 811 is merely permissive and not mandatory. Since the authenticity of the will
was not contested, petitioner was not required to produce more than one witness;
but even if the genuineness of the holographic will were contested, Article 811 can not
be interpreted to require the compulsory presentation of three witnesses to identify
the handwriting of the testator, under penalty of having the probate denied. Since no
witness may have been present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes obvious that the existence of
witness possessing the requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses “who know the handwriting and signature of the
testator” and who can declare (truthfully, of course, even if the law does not so
express) “that the will and the signature are in the handwriting of the testator”. There
may be no available witness of the testator’s hand; or even if so familiarized, the
witnesses may be unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility.
This is the reason why the 2nd paragraph of Article 811 allows the court to resort to
expert evidence. The law foresees the possibility that no qualified witness may be
found (or what amounts to the same thing, that no competent witness may be willing
to testify to the authenticity of the will), and provides for resort to expert evidence to
supply the deficiency.
What the law deems essential is that the court should be convinced of the will’s
authenticity. Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may consider it unnecessary
to call for expert evidence. On the other hand, if no competent witness is available, or
none of those produced is convincing, the Court may still, and in fact it should, resort
to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines
of inquiry, for the state is as much interested as the proponent that the true intention
of the testator be carried into effect.
And because the law leaves it to the trial court if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer expert evidence,
until and unless the court expresses dissatisfaction with the testimony of the lay
witnesses.c
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
FACTS:
Annie Sand named as devisees petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar
Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
Petition for allowance of decedent's holographic will was opposed by Private
respondent on the grounds that: neither the testament's body nor the signature
therein was in decedent's handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of
a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that
said property could not be conveyed by decedent in its entirety, as she was not
its sole owner.
The trial court admitted the decedent's holographic will to probate.
On appeal, the petition for probate of decedent's will was dismissed. The Court
of Appeals found that, "the holographic will failed to meet the requirements for
its validity." It held that the decedent did not comply with Articles 813 and 814
of the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the same by his
full signature.
ISSUE:
Whether the holographic will should be admitted to probate.
RULING:
Yes. The holographic will should be admitted to probate.
The SC held that the lists for disallowing wills are exclusive and that no other
grounds can serve to disallow a will.
It cited the following:
Section 9, Rule 76 of the Rules of Court provides that 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.
Article 839 of the New Civil Code:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its
execution;
(3) If it was executed through force or under duress,
or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of
some other person;
(5) If the signature of the testator was procured by
fraud;
(6) If the testator acted by mistake or did not intend
that the instrument he signed should be his will at the
time of affixing his signature thereto.
In the case at bench, the SC said that the holographic will complied with the
requirements of Articles 813 and 814 of the Civil Code and reiterated its ruling
in Abangan vs. Abangan:
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the
right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal solemnities
include the subscription, attestation, and acknowledgment requirements under
Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is
the requirement that they be totally autographic or handwritten by the testator
himself, as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.
A reading of Article 813 of the New Civil Code shows that its requirement
affects the validity of the dispositions contained in the holographic will, but not
its probate. If the testator fails to sign and date some of the dispositions, the
result is that these dispositions cannot be effectuated. Such failure, however,
does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding
non-compliance with the provisions of Article 814. In the case of Kalaw
vs. Relova the Supreme Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have not
been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined.
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, their
presence does not invalidate the will itself. The lack of authentication will only
result in disallowance of such changes.
This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code — and not those found in
Articles 813 and 814 of the same Code — are essential to the probate of a
holographic will.
The SC affirmed the ruling of the CA that decedent Annie Sand could not
validly dispose of the house and lot located in Cabadbaran, Agusan del Norte,
in its entirety. The testatrix cannot validly dispose of the whole property, which
she shares with her father's other heirs.
The holographic will of decedent Annie Sand was admitted to probate.
Guerrero v. Bihis
521 SCRA 394
FACTS:
Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and
respondent Resurreccion A. Bihis, died. Guerrero filed for probate in the RTC QC.
Respondent Bihis opposed her elder sister’s petition on the following grounds: the
will was not executed and attested as required by law; its attestation clause and
acknowledgment did not comply with the requirements of the law; the signature of
the testatrix was procured by fraud and petitioner and her children procured the will
through undue and improper pressure and influence. Petitioner Guerrero was
appointes special administratrix. Respondent opposed petitioner’s appointment but
subsequently withdrew her opposition. The trial court denied the probate of the will
ruling that Article 806 of the Civil Code was not complied with because the will was
“acknowledged” by the testatrix and the witnesses at the testatrix’s residence at No.
40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a
commissioned notary public for and in Caloocan City.
ISSUE:
Did the will “acknowledged” by the testatrix and the instrumental witnesses before a
notary public acting outside the place of his commission satisfy the requirement
under Article 806 of the Civil Code?
HELD:
No. One of the formalities required by law in connection with the execution of a
notarial will is that it must be acknowledged before a notary public by the testator
and the witnesses. This formal requirement is one of the indispensable requisites for
the validity of a will. In other words, a notarial will that is not acknowledged before a
notary public by the testator and the instrumental witnesses is void and cannot be
accepted for probate.
The Notarial law provides: SECTION 240.Territorial jurisdiction. — The jurisdiction
of a notary public in a province shall be co-extensive with the province. The
jurisdiction of a notary public in the City of Manila shall be co-extensive with said
city. No notary shall possess authority to do any notarial act beyond the limits of his
jurisdiction.
The compulsory language of Article 806 of the Civil Code was not complied with and
the interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts
of the testatrix, her witnesses and Atty. Directo were all completely void.
Roxas v. De Jesus
134 SCRA 245
FACTS:
Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. for partition of the
estate of the deceased and also delivered the holographic will of the deceased.
Simeon stated that he found a notebook belonging to deceased, which contained a
“letter-will” entirely written and signed in deceased’s handwriting. The will is dated
“FEB./61 ” and states: “This is my will which I want to be respected although it is not
written by a lawyer. Roxas relatives corroborated the fact that the same is a
holographic will of deceased, identifying her handwriting and signature. Respondent
opposed probate on the ground that it such does not comply with Article 810 of the
CC because the date contained in a holographic will must signify the year, month,
and day.
ISSUE:
W/N the date “FEB./61 ” appearing on the holographic Will of the deceased Bibiana
Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code.
HELD:
Valid date.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills. The
underlying and fundamental objectives permeating the provisions of the law wills
consists in the liberalization of the manner of their execution with the end in view of
giving the testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. If a Will has been
executed in substantial compliance with the formalities of the law, and the possibility
of bad faith and fraud in the exercise thereof is obviated, said Will should be
admitted to probate (Rey v. Cartagena 56 Phil. 282).
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose sought to
be accomplished by such requisite is actually attained by the form followed by the
testator. In Abangan v. Abanga 40 Phil. 476, we ruled that: The object of the
solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. …
In particular, a complete date is required to provide against such contingencies as
that of two competing Wills executed on the same day, or of a testator becoming
insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There
is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad
faith and fraud in its execution nor was there any substitution of Wins and
Testaments. There is no question that the holographic Will of the deceased Bibiana
Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in
a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the testamentary capacity at the
time of the execution of said Will. The objection interposed by the oppositor-
respondent Luz Henson is that the holographic Will is fatally defective because the
date “FEB./61 ” appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the “date” in a holographic Will should include the day, month, and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date “FEB./61” appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code, probate of
the holographic Will should be allowed under the principle of substantial
compliance.
Palaganas vs Palaganas Case Digest
G.R. No. 169144 ; January 26, 2011 ; 640 SCRA 538
PRINCIPLE/S:
Special Proceedings
a) Wills that are executed abroad can be probated here in the Philippines even if it has not
yet been probated and allowed in the country it was executed
- Article 816 of the Civil Code 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.
b) Requisites for probate and allowance of will
(a) the jurisdictional facts;
Jurisdictional facts refer to the fact of death of the decedent, his residence at the time of his
death in the province where the probate court is sitting, or if he is an inhabitant of a foreign
country, the estate he left in such province.
(b) the names, ages, and residences of the heirs, legatees, and devisees of the testator or
decedent;
(c) the probable value and character of the property of the estate;
(d) the name of the person for whom letters are prayed; and
(e) if the will has not been delivered to the court, the name of the person having custody of it.
NOTE: It does not require that a will executed abroad must have already been probated and
allowed in the country it was executed.
c) Probate of a will that is presented for the first time before a competent court is different
from Reprobate of a will already probated abroad
- Reprobate is governed by Rule 77 of the Rules of Court.
- In reprobate, the local court acknowledges as binding the findings of the foreign probate
court provided its jurisdiction over the matter can be established.
FACTS: Ruperta, a Filipino who became a naturalized U.S. citizen, died single and childless.
In the last will and testament she executed in California, she designated her brother, Sergio,
as the executor of her will for she had left properties in the Philippines and in the U.S.
Private respondent Ernesto filed with the RTC a petition for the probate of Ruperta’s will and
for the former’s appointment as special administrator of her estate. Petitioners, nephews of
Ruperta (the nephews), opposed the petition on the ground that Ruperta’s will should not be
probated in the Philippines but in the U.S. where she executed it. The RTC allowed the will
to be probated in the Philippines. This was affirmed by CA. Hence petitioners files this
instant Petition for Review on Certiorari under Rule 45 of the Rules of Court to this Court.
ISSUE/S: WON a will executed by a foreigner abroad may be probated in the Philippines
although it has not been previously probated and allowed in the country where it was
executed.
HELD: YES. Article 816 of the Civil Code 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.
Moreover, our rules require merely that the petition for the allowance of a will must show, so
far as known to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and
residences of the heirs, legatees, and devisees of the testator or decedent; (c) the probable
value and character of the property of the estate; (d) the name of the person for whom
letters are prayed; and (e) if the will has not been delivered to the court, the name of the
person having custody of it. Jurisdictional facts refer to the fact of death of the decedent, his
residence at the time of his death in the province where the probate court is sitting, or if he is
an inhabitant of a foreign country, the estate he left in such province. The rules do not
require proof that the foreign will has already been allowed and probated in the country of its
execution. Hence our laws do not prohibit the probate of wills executed by foreigners abroad
although the same have not as yet been probated and allowed in the countries of their
execution.
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the
decedent is an inhabitant of a foreign country, the RTC of the province where he has an estate may
take cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state that the
executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at
any time after the death of the testator, petition the court having jurisdiction to have the will
allowed, whether the same be in his possession or not, or is lost or destroyed.
In insisting that Ruperta’s will should have been first probated and allowed by the court of
California, petitioners Manuel and Benjamin obviously have in mind the procedure for the
reprobate of will before admitting it here. But, reprobate or re-authentication of a will already
probated and allowed in a foreign country is different from that probate where the will is
presented for the first time before a competent court. Reprobate is specifically governed by Rule
77 of the Rules of Court. Contrary to petitioners’ stance, since this latter rule applies only to
reprobate of a will, it cannot be made to apply to the present case. In reprobate, the local court
acknowledges as binding the findings of the foreign probate court provided its jurisdiction over
the matter can be established.
Besides, petitioners’ stand is fraught with impractically. If the instituted heirs do not have the
1âwphi1
means to go abroad for the probate of the will, it is as good as depriving them outright of their
inheritance, since our law requires that no will shall pass either real or personal property unless
the will has been proved and allowed by the proper court.
