ALLOWANCE AND DISALLOWANCE OF WILLS

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Published — June 1, 2022

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

 

Now that your knowledgeable with ALLOWANCE AND DISALLOWANCE OF WILLS, you may also read: MAY A WILL BE REVOKED?

• Wills may pass any property when it is allowed by law

• Wills shall be proved and allowed through probate proceedings in court

• Probate proceedings is a process which ensures that the wills follow the law

In our previous article (May a will be revoked?), a question was asked: “What is allowance and disallowance of wills?”

The answer to that question has something to do with the validity or invalidity of the will. If the will is valid, it necessarily and legally follows that it should be allowed. In contrast, if the will is invalid, it should be disallowed.

In other words, allowance of will means that the will may be given effect. Thus, it can pass properties in accordance with its lawful dispositions. On the other hand, disallowance of will means that the will cannot transfer the ownership of the properties stated in the will.

How should a will be allowed?

The law says:

The will shall be proved and allowed in accordance with the Rules of Court.

Rule 76 of the Rules of Court specifically governs the allowance or Disallowance of Wills. This is called probate proceedings, the mandatory process of proving the validity of a will.

The testator himself may petition the court for the allowance of his will. If the testator has not filed for the allowance of his will during his lifetime, the will may still be proved and allowed by the court. This time, the executor, devisee, or legatee named in the will, or any person interested in the estate may petition the court for the allowance of the testator’s will.

If a notarial will is contested, all the subscribing witnesses and the lawyer who notarized the will must be produced and examined. The death, absence, or insanity of any of the witnesses must be satisfactorily shown to the court.

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any competent witness, the will may be examined by an expert.

What are the instances where a will may be disallowed?

The law says:

The will may be disallowed in the following instances:

1. The formalities required by law have not been complied with;
2. The testator was insane, or mentally incapable of making a will, at the time of its execution;
3. The will was executed through force or under duress, or the influence of fear, or threats;
4. The will was procured by undue and improper pressure and influence, on the part of the beneficiary or some other person;
5. The signature of the testator was procured by fraud;
6. The testator acted by mistake or did NOT intend that the instrument he signed should be his will at the time he affixed his signature on the said instrument.

As to number one (1) above, the formalities required by law depends on whether the will is notarial or holographic. The formalities for both notarial will (please click here) and holographic will (please click here) were already presented in our previous articles.

Number two (2) above, merely confirms what was discussed in our previous article dealing with: “Who are capacitated to make a Will?” When a person, despite being expressly disqualified by law to make a will, apparently makes the same, the will may be disallowed. It means that the properties mentioned or stated in the will remains to be owned by the testator. In effect, said properties may now be transferred to the legal heirs of the testator by operation of law.

Now, who are these legal heirs? Articles regarding the query will be posted in a few days.

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

All rights reserved.

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