Last will should be presented to the court

Persida Acosta

Persida Acosta

Dear PAO,
Before our father died, he made a last will and informed everyone that he entrusted his prepared will to our aunt who is our father’s youngest sister. Upon my father’s death, we requested our aunt to give us our father’s last will so that we may have it legally approved and verified by the court. However, our aunt persistently refuses to do so and insists that we just partition the estate of our father among ourselves. Despite repeated demands, our aunt claims that the last will of our father is legally useless since we are all still alive and that we can negotiate the division of our father’s properties. I want to ask if our aunt can legally prevent us from seeing our father’s last will? Does she have a legal basis in her claim? I hope you can advise us. Thank you!

Dear Lagundina,
A last will and testament conveys the intent of a deceased as to the manner of distribution of his estate among his heirs. And as such, a last will and testament is required by law to undergo a proceeding by which it will be proved and allowed by court upon examination that it was rightfully prepared and its contents abide by the formalities and provisions prescribed by law. This procedure, which is governed by law, is called a probate proceeding.

Since a probate proceeding determines the validity of a will, the law requires that the person having in possession of the will must present the will to the proper authority so that it may be probated. The Rules of Court provides that:

Sec. 2 Custodian of will to deliver – The person who has custody of the will shall, within 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 (Rules 75).

This cited provision clearly requires the possessor of the will to present the said document before the court so that it may be probated. Therefore, your aunt has no legal basis in refusing to surrender your father’s will. The law clearly obligates her being the possessor of your father’s will to deliver it to your family and eventually to the court. She cannot, by any means, claim that your father’s will is useless or insist that his properties should just be divided according to the heirs’ desires. A decedent’s last will prevails over the intention of his heirs with regard to the distribution of his properties. The Rules of Court provides that the surviving heirs can settle the estate of a deceased among themselves if the latter left no will (Sec. 1, Rule 74). Therefore in the existence of a will, the settlement of an estate will be made in accordance with the provisions of a probated will and not in accordance with the decision of the heirs.

Finally, should your aunt or any person in possession of your father’s will refuses or fails to deliver his will for probate proceedings, the Rules of Court provides that they may be fined or committed in prison by the court until they deliver the will (Sec. 4 & 5, Rule 75, Ibid).

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


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1 Comment

  1. Celia Sta. Ana on

    This is not a comment on the article, but a situation. My husband just passed away last March 18, 2015. He left no will. His mother, my mother-in-law, died on June 23, 2011 and to my knowledge, also left no will. There are properties in the name of my mother-in-law, namely, a lot in Baguio City, and a house and lot in Baesa, Quezon City.

    When my husband was still alive, he said he waived his claims on the house and lot in Baesa, Quezon City; but was interested in the lot in Baguio.

    However, we have no knowledge of the whereabouts of the Baguio lot and the title of the house in Baesa, Quezon City, because these documents are all in the possision of my sister-in-law, who claims that she is entitled to all those properties because my husband had been receiving cash doleouts from their mother many times in the past.

    Is it still possible to file claims for both properties? How does one go about it?