G.R. No. 168156, 6 December 2006, 510 SCRA 496


The subject lots denominated as Lot 5427 and Lot 992 situated in Tugegarao City belonged to the spouses Pedro Cuntapay and Leona Bunagan. The spouses sold the said lots to their children Isabel and Irene Cuntapay. It was agreed that the disputed eastern portion shall belong to Isabel Cuntapay as evidenced by a notarized partition agreement. Isabel was first married to Domingo Turingan, they had four children named Abdon, Sado, Rufo and Maria. When the first husband died, Isabel married Rosendo Lasam. She had two children by him named Trinidad and Rosendo.

In 2001 Rosendo Lasam filed a case against the respondent Vicenta Umengan who is the daughter of Abdon Turingan, a son of Isabel Cuntapay, for unlawful detainer. The petitioner anchored their claim on the disputed property on the purported will of Isabel Cuntapay whereby she bequeathed the said property to Rosendo Lasam. The last will and testament relied upon was not probated. The MTCC and RTC ruled in favor of the petitioner on the ground that they are the owners of the property based on the alleged will of Isabel Cuntapay.


Whether or not the will of Isabel Cuntapay could be relied upon to establish the petitioner‘s right to possess the subject lot.


No. The purported last will and testament of Isabel Cuntapay could not properly be relied upon to establish petitioners‘ right to possess the subject lot because, without having been probated, the said last will and testament could not be the source of any right.

Article 838 of the Civil Code is instructive:

“No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court…..”

In Cañiza v. Court of Appeals, the Court ruled that: “[a] will is essentially ambulatory; at any time prior to the testator‘s death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: ̳No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.‘”

Dr. Tolentino, an eminent authority on civil law, also explained that “[b]efore any will can have force or validity it must be probated. To probate a will means to prove before some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed, attested and published as required by law, and that the testator was of sound and disposing mind. It is a proceeding to establish the validity of the will.” Moreover, the presentation of the will for probate is mandatory and is a matter of public policy. Thus, the petition was denied.

*Case digest by Jan Ruthella Flor S. Tacbaya, LLB-IV, Andres Bonifacio College Law School, SY 2018-2019