Can I Compel my Relative to Produce a Last Will and Testament in His Possession?
A family member died having left behind a last will and testament.
She had entrusted her last will and testament to her brother who lived in the same house as her. The will named him as the executor of her estate after she died.
But, after she died, the brother did not produce the will nor do anything for the settlement of the estate. He did not file the proper court case to probate the will, nor open any estate proceedings. He simply continued to stay at her house and enjoy her assets as if they were his own.
This caused discontent among the other relatives who believed the will actually distributed the estate to different members of the woman’s family.
But they do not have the will in their possession. It is with the brother.
What can the relatives do?
The first thing is really to try and talk it out within the family. See if there is a way to address this amicably, for the sake of the dead as well as the living.
But if this is not possible, then legal remedies may be sought.
The relatives can file a court case for the probate of the will or the settlement of the estate. The relatives can file this even if they are not the named executor and even if they do not have the will in their possession. They can file the probate case to prove the will even if it is in the brother’s hands.
The Rules of Court say that the person who has custody of the will should deliver it to the court or to the executor within 20 days of knowing the death of the testator.[i] So if the brother has not done this, then the relatives can institute the case themselves.
Once a case has been filed, the judge can order the brother to present the will to the court. The court can compel him to do so. If he refuses without reasonable cause to deliver the will when ordered to by the court, he may be fined or even be committed to prison and kept there until he delivers the will.
Of course, this depends on the brother complying with the court order. And a will is such a fragile object.
[i] Rule 75, Section 2. Custodian of will to deliver. 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 jurisdiction, or to the executor named in the will.
What happens if the missing will is lost or destroyed?
What if the brother defies the order and the original will is never brought to court?
The brother can certainly be subject to contempt of court and other sanctions, but what can be done about proving the will of the deceased if the document has been destroyed?
The Rules of Court provide for how a lost or destroyed will and its contents can be proved in an estate case.
If the will was lost or destroyed, its can still be probated if:
1. The will’s execution and validity are established by other evidence,
2. The will is proved to have been in existence at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, and
3. The will’s provisions are clearly and distinctly proved by at least two credible witnesses.
How do you prove all this?
These are the three requirements in the Rules of Court, but how do you actually fulfill them?
The Rules can be considered in light of cases decided by the Supreme Court. One way that the Supreme Court has allowed a lost will to be proved is by presenting a photocopy.
The 1982 case of Rodelas vs. Aranza allowed the presentation of a photocopy of the lost handwritten will because comparison of the handwriting on the copy could still be made with the standard writings of the testator.
Citing also the Civil Code provisions on last wills and testaments, The Supreme Court said that, in such a case, if the probate is uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to.
If the probate is contested, at least three identifying witnesses are required.
Once all this is done, when a lost will is proved in court, its provisions must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded in the same way that other wills are filed and recorded.
Atty. Francesco Britanico
Hello sir, my mom left a will (not signed in the presence of an attorney or witness). My mom indicated my stepsister as the executor and us (my mom’s kids) are the beneficiaries. However, my stepsister claimed she lost my mom’s will. We have a picture of my mom’s will. Can probate attorney/court accept the picture of the will to proceed on the probate?
This may depend on the quality of the picture, but there are inherent difficulties with presenting a mere copy.
Sir good evening,
In our case my sister has a copy of holografic will. (Before or after we resort to baranggay dispute) if the will is in my possession do I have to file to court for petition to probate? For what purpose? What does it mean the executor? I mean if there is no executor under the will is the sole heir can transfer immediately the properties without filling petition to probate? Thank you!
A
There cannot be a sole heir if the deceased had at least two children.
No will can be the basis for the transfer of property unless it has gone through probate.