Establishing validity of last will and testament

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Persida Acosta

Dear PAO,
My unmarried sister recently died. She passed away without any child. Our parents are also dead and my sister only has us, her siblings, as her relatives. Before she passed away, she was able to execute her last will and testament. One of my sisters is currently in possession of her last will. We want to know now the proper legal steps in having the last will of our deceased sister approved and what we can expect from this procedure. Please advise us on what to do. Thank you very much!
Hannah

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Dear Hannah,
Your deceased sister’s last will and testament has to be probated in order for it to be legally allowed and enforceable. In order for a last will and testament to be probated, it must undergo what is called a probate proceeding. A probate proceeding is a special legal proceeding required for the purpose of establishing the validity of the will. According to the law, no will shall pass as either personal or real property unless it is proved and allowed in accordance with the Rules of Court (Civil Code of the Philippines, Article 838).

To initiate a probate proceeding, the Rules of Court provides that any executor, devisee or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the author of the will, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. (Rule 76, Section 1, Ibid.) In your case, since you mentioned that one of your sisters is in possession of the last will of your deceased sister, it is required that she present the last will to the court, so that it can be probated. The Rules of Court also provides that:

Sec. 2 Custodian of will to deliver – The person who has custody of the 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 (Rule 75).

In filing a petition for probate, it is important to know that the venue for its filing is in the Regional Trial Court of the place where your deceased sister, as the testator, resides at the time of her death. (Rule 73, Section 1, Id.) The court having jurisdiction shall then fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published in a newspaper of general circulation in the province. The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office. (Rule 76, Sections 3 and 4, Id.)

If the court is later satisfied upon proof that the will was duly executed, and that your sister at the time of its execution was of sound mind and not acting under duress, menace and undue influence, or fraud, a certificate of its allowance signed by the judge and attested by the seal of the court shall be attached to the will and recorded by the clerk of court. The attested copies of the will devising real estate and the certificate of allowance thereof shall be then recorded in the register of deeds of the province in which the pieces of property lie. (Section 13, Id.) This procedure and order from the court will ultimately give validity to the last will of your sister so that it may be implemented in accordance with her will and the manner prescribed by law.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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