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Probating One’s Own Will
(Article published in the May 28, 2001 issue of TODAY, Business Section)

A will, according to Article 783 of our Civil Code, is an act by which a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after death.

The essential characteristic of being inoperative until the death of the testator is why a will is called "ambulatory". It is also the reason a will is said to be essentially revocable. Since a will settles nothing until the testator dies, there is no good reason why its amendment or outright revocation in the meantime should be prohibited.

In many places and for a long time, the legal rule was that no proceeding can brought in court to establish that a person in fact made a will until the testator has died. This process called "probate" from the Latin "probatio", meaning to prove, is significant only after the conditio sine qua non for its effectivity has occurred.

In 1950, however, the Civil Code of the Philippines played the contrarian and, under Article 838, permitted the testator himself, to ask a court to declare that a certain document was executed by him in accordance with the formalities required by law for a valid will, and that consequently said document should determine the way his estate is to be distributed upon his death.

Notwithstanding such a judicial determination, however, the testator nevertheless retains the right to amend or revoke the probated will anytime before to his death.

The rationale for its departure from traditional legal wisdom, as articulated by the Code Commission, is that "most cases…involve either the testamentary capacity of the testator (i.e. whether the testator was of sound mind when he made the will) or the formalities adopted in the execution of wills".

"It is far easier for the courts," says the Code Commission: "to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testator’s life, therefore, will lessen the number of contest upon wills".

Conformably with the Civil Code innovation, the Supreme Court dutifully included in its Rules of Court provisions allowing petitions for probate brought by the testator himself. Until recently, however, it was not clear how a probate proceeding during the testator’s lifetime relates to the settlement proceedings that will eventually have to be brought upon his death.

Is the latter a mere continuation of the former, such that the court that handled the probate of the will during the testator’s lifetime should also be the court that will distribute his estate according to that will? This issue was addressed by the Supreme Court last year when it decided the certiorari cases brought in the estate of Dr. Arturo De Santos (Octavio S. Maloles II v. Pacita De Los Reyes [G.R. No. 129505] and Octavio S. Maloles II v. Court of Appeals, et al [G.R. No. 133359] both decided on 31 January 2000).

On 20 July 1995, Dr. Arturo De Santos filed a petition with the Regional Trial Court of Makati, Branch 61, to have his will probated. The Court, after due hearing, ruled on 16 February 1996 that the good doctor, being of sound mind and disposing memory, indeed executed a will in accordance with the formalities of law. Ten days later, Dr. De Santos died.

Pacita de los Reyes Philipps, the designated executrix in the probated will, then filed a petition with the Regional Court of Makati, this time Branch 65, for the issuance in her favor of letters testamentary, a form of judicial authorization for her to assume her office as executrix and proceed to distribute the doctor’s estate in accordance with his will.

Should the petition filed with Branch 65 be sent to Branch 61 which had earlier allowed the probate of the doctor’s will?

The Supreme Court answered in the negative. After declaring that the doctor’s will was validly executed in accordance with the legal formalities, there was nothing left for Branch 61 to do. The case that was brought by the doctor during his lifetime was fully terminated. The petition filed with Branch 65 is an entirely new case and should be heard by that branch.

The significance of the Supreme Court’s ruling is the clear affirmation that the question of whether a will was executed in accordance with law is separate and distinct from the question of who should administer the estate of the decedent.

This principle stands regardless of whether the will was presented for probate during the testator’s lifetime (as in the case of Dr. De Santos) or after his death. Parties litigant and their lawyers who intentionally confuse the two questions, and hearing judges who permit them to do so, abuse legal process and renege on their obligation to do justice to every man. In fact, they do injustice to the dead.