Chapter 15

COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 1CHAPTER 15 PROBA TE OF WILLS § 1501. Delivery of Will After Death. § 1503. Who May Petition For Probate of Will. § 1505. Renouncement of Named Executor's Right to Letters by Failure to Petition. § 1507. Contents of Original Petition for Probate of Will; I ncorrect State ment of Jurisdictional Facts Not a Bar to Court's Jurisdiction. § 1509. Offer to Probate of Foreign W ills. § 1511. Procedure for Admission of Foreign Wills to Probate; Notice. § 1513. Order to Produce W ill; Confinement to Jail for Refusal to Produce; Court Has Power to Enforce Production of Wills. § 1515. Notice of Hearing on Petition for Probate of Will and For Letters. § 1517. Service of Notice Upon Heirs, Devisees, Legatees and Named Executors. § 1519. Proof of W itnessed Will in Unconteste d Proceedings. § 1521. Proof of W ill by Copy When Will is Outside Guam. § 1523. Proof of Holographic Will. § 1525. Proof of Lost or Destroyed Wills; Restraining Acts of Previously Appointed Administrator Pending Hearing on Petition. § 1527. Record of Entr y of Admission of Will to Probate; Translation of Wills. § 1529.

of Lost or Destroyed Wills; Restraining Acts of Previously Appointed Administrator Pending Hearing on Petition. § 1527. Record of Entr y of Admission of Will to Probate; Translation of Wills. § 1529. Provisions of Order Admitting Lost or Destroyed Will: Perpetuation of Witnesses' Testimony. § 1531. No Contest Permitted as to Foreign Will if Admitted Elsewhere. § 1501. Delivery of Will Af ter Death. (a) If the custodi an of a will is some person other than the Clerk of the Superior Court of Guam acting as such, the custodian must, within thirty (30) calendar days after being informed that the maker thereof is dead, deliver the same to the C lerk of the Superior Court of Guam or to the executor named therein. COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 2(b) If the custodian of a will is the Clerk of the Superi or Court of Guam acting as such pursuant to the provisions of Section 301 of this Title, delivery of such will shall be as pro vided in Section 303 of this Title. SOURCE: Subsection (a): Probate Code of Guam (1970), § 320. Subsection (b): Guam Law Revision Commission.

301 of this Title, delivery of such will shall be as pro vided in Section 303 of this Title. SOURCE: Subsection (a): Probate Code of Guam (1970), § 320. Subsection (b): Guam Law Revision Commission. COMMENT : The Commission has added sub section (b) to cause § 1501 to comport with the provisions of §§ 301 and 30 3, supra. § 1503. Who May Petition For Probate of Will. Any executor, devisee or legatee named in a will, or any other person interested in the estate, may , at any time after the testator's death, petition the Superior Court of Guam for the probate of the testator's will and that letters testamenta ry or letters of administration with the will annexed be granted to the petitioner, whether the testator's will be in the petitioner's possession or not, lost or destroyed, or beyond the jurisdiction of the terr itory of Guam. SOURCE: Probate Code of Guam (1970), § 323; Guam Law Revision Commission. COURT DECISIONS: SUPER.CT . 1983 Because the will in question was admitted to probate and opposi tion to it withheld because of an agreement recited in open court; the n the agreement failed, the will is not deemed admitted and, in order for it to do so, the petition for admissions

te and opposi tion to it withheld because of an agreement recited in open court; the n the agreement failed, the will is not deemed admitted and, in order for it to do so, the petition for admissions of probate must be filed as if no action had been commenced. Estate of Sayama, Pr. #104 -82. COMMENT : The only substantive change to § 323 of the Probate Code of Guam (1970) is the deletion of language concerning nuncupative wills, which is no longer neces saryunder the provisions of this Title. § 1505. Renouncement of Named Executor's Right to Letters by Failure to Petition. If the person name d in a will as executor, for thirty (30) calendar days after he has knowledge of the death of the testator and that he is named as executor, fails to petition the Superior Court of Guam for the probate of the testator's will and that letters testamenta ry begranted to him, he ma y be held to have renounced his right to letters, and the Superior Court of Guam may grant letters of administration with the will annexed to another competent person, unless good cause for the delay is shown. SOURCE: Probate Code of Guam (1970), § 324.COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 3§ 1507.

h the will annexed to another competent person, unless good cause for the delay is shown. SOURCE: Probate Code of Guam (1970), § 324.COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 3§ 1507. Contents of Original Petition for Probate of Will; Incorrect Statement of Jurisdic tional Facts Not a Bar to Court's Jurisdiction. (a) A petition for the probate of a will and for the grant of letters testamentary , or of lett ers of administration with the will annexed in the first instance, must be in writing, signed by the petitioner or the petitioner's counsel, and filed with the Clerk of the Superi or Court of Guam, and must state: (1) The jurisdictional facts; (2) Whether the person named in the will as executor, if that person's name is known to the peti tioner, consents to or renounces his right to letters testamentary; (3) The names, ages and mailing address es of the heirs, devisees and legatees of the decedent, so far as known to the petitioner; (4) The character and estimated value of the property of the estate; (5) The name, age and mailing address of the person for whom letters testamentary or letters of administration with the will annexed are prayed; and (6) In th e

d value of the property of the estate; (5) The name, age and mailing address of the person for whom letters testamentary or letters of administration with the will annexed are prayed; and (6) In th e case of a lost or destroyed will, the testamentary words or the substance thereof. (b) Wher e the necessary jurisdictional facts actually exist but through defect of form or through error, they or any of them are incor - rectly stated in any petition or pleading, the Superior Court of Guam has and r etains jurisdic tion to correct such defect or error at any time. No such defect or error shall make the order admitting the will to probate, or any subsequent proceeding, void. SOURCE: All except subsection ( a)(6): California Probate Code, § 326 (as amended); Guam Law Revision Commission. Subsec tion (a)(6): Probate Code of Guam, § 351. COMMENT : Section 1507 is intended to cover only original petitions for the probate of a will and for the grant of letters tes tamentary , as opposed to such petitions filed in the context of a personal represen tative who dies, resigns, whose letters are revoked, etc. The latter situation is covered in Chapter 21, infra.

es tamentary , as opposed to such petitions filed in the context of a personal represen tative who dies, resigns, whose letters are revoked, etc. The latter situation is covered in Chapter 21, infra. OFFICIAL FORM :See Official Form No. 2, Appendix AA@. § 1509. Offer to Probate of Foreign Wills.COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 4A will admitted to probate in any State or United States territory , or established or proved in accordance with the laws thereof, may b e offer ed for probate in the Superior Court of Guam if the Superior Court of Gua m has jurisdiction under the provisions of Chapter 14 of this Title. SOURCE: Probate Code of Guam (1970), § 360; Guam Law Revision Commission. COMMENT : Section 360 of the Probate Code of Guam (1970) also provided that a will admitted to probate in a fore ign country could be offered for probate in the Superior Court of Guam. The Commis sion has deleted this provision, being of the opinion that the difficulties in proving such wills might be so severe as to make the proof of some such wills impossible in th e Superior Court.

Commis sion has deleted this provision, being of the opinion that the difficulties in proving such wills might be so severe as to make the proof of some such wills impossible in th e Superior Court. The Commission also notes that under the provi sions of this T itle, the requirements for the proving of both witnessed and holographic wills have been relaxed; this being the case, the Commission feels that people moving to Guam from fore ign countries will not be subjected to great burdens in preparing new wills, and thus there is no longer any reason for permitting the probate of such foreign wills. § 151 1. Procedure for Admission of Foreign Wills to Probate; Notice. The executor or admi nistrator with the will annexed, or any person interested in a will admitted to probate in any State or United States territory , or estab lished or proved in accordance with the laws thereof, may file a copy of such will and of the order or decree admittin g it to probate, or other evidence of its establishment or proof in accor danc e with the laws of such State or United States territory , together with such person's petition for letters.

ee admittin g it to probate, or other evidence of its establishment or proof in accor danc e with the laws of such State or United States territory , together with such person's petition for letters. Notice shall be given and, except as provided in Section 1531 of this Title, the same proceedings had as in the case of an original petition for the probate of a will. SOURCE: California Probate Code, § 361 (as amended). COMMENT : Section 361 of the Probate Code of Guam (1970) also included procedures for the admission to p robate of wills made in foreign countries. As noted in the Comment to § 1509, supra, such procedures are no longer necessary . § 1513. Order to Produce Will; Confinement to Jail for Refusal to Produce; Court Has Power to Enforce Produc tion of Wills and Attendance of Witnesses. (a) If it is alleged in a petition praying for the admission of a will to probate and for the grant of letters testamentary or for letters of administration with the will annexed that some person has possession of the will, and the Su perior Court of Guam is satisfied that such allegation is true, the Superi or Court of Guam shall make an order and cause it to COL12010615GCA ESTATES AND

erson has possession of the will, and the Su perior Court of Guam is satisfied that such allegation is true, the Superi or Court of Guam shall make an order and cause it to COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 5be served upon such person, requiring such person to produce the will at a time na med in such order. (b) If a person having po ssession of the will neglects or refuses to produce it as required by an order as provid ed in subsection (a) of this Section, such person may by warrant of the Superior Court of Guam be committed to jail and confined therein until he produces it. (c) T he Superior Court of Guam may at any time make and issue all necessary orders and writs to enforce the production of wills and the attendance of witnesses. SOURCE: Probate Code of Guam (1970), § 321. § 1515. Notice of Hearing on Petition for Probate of Wi ll and for Letters. When a peti tion for the probate of a will and for the grant of letters testamentary , or letters of administra tion with the will annexed, is filed in the first instance, the Clerk of the Superior Court of Guam shall set the same for h earing upon some day not fewer than twenty (20) and not more than thirty

a tion with the will annexed, is filed in the first instance, the Clerk of the Superior Court of Guam shall set the same for h earing upon some day not fewer than twenty (20) and not more than thirty (30) calendar days after the date of filing, and notice thereof sha ll be given in the manner provided in Section 3401 of this Title. SOURCE: Guam Law Revision Commission. COMMENT : Section 327 of the Probate Code of Guam (1970) contained very detailed notice provisions, generally provid ing that notice of the hearings referred to in § 1515 were to be published, and posted in certain specified places, by the Clerk of the Superior Court o f Guam. In drafting this Title, the Commission reached the conclusion that the notice provi sions contained throughout the Probate Code of Guam (1970) were both archaic --apparently stemming from a time when no daily newspapers existed in Guam --and large lyineffective. The Commission has thus revised all notice provisions in this T itle, including the provi sions in § 1515, so that this Title's notice procedures would be workable and efficient without sacrificing effectiveness. Also see Comment to § 3401, infra. OFFICIAL FORM : See Official Form No.

ovi sions in § 1515, so that this Title's notice procedures would be workable and efficient without sacrificing effectiveness. Also see Comment to § 3401, infra. OFFICIAL FORM : See Official Form No. 3, Appendix AA@. § 1517. Service of Notice Upon Heirs, Devi sees, Legatees and Named Executors. At least ten (10) calendar days before the hearing on a petition for the probate of a will and for the grant of le tters testamentary , or for letters of administration with the will annexed, filed in the first instance, a copy of the notice of such hearing must be served upon each heir of the testator, upon each devisee and legatee named in the will, and upon each COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 6person na med in the will as an executor who is not petitioning, as follows: (a) Personally , such personal service to be effected by the Office of the Marshal of the Superior Court of Guam; or (b) By registered mail, sent by the petition er, postage prepaid, addressed to such person's place of residence if known to the petitioner, and if not then to general delivery at the post office serving such person's municipality (if such person resides in Guam) or to general

o such person's place of residence if known to the petitioner, and if not then to general delivery at the post office serving such person's municipality (if such person resides in Guam) or to general delivery at the post office serving such perso n's last known place of residence (if such person resides outside Guam.) As used in this Section, Apost office @includes subpost office, substation, or other like facility regularly maintained by the United States Postal Service, or under the authority of any foreign government. SOURCE: Probate Code of Guam (1970), § 328; California Probate Code, § 328 (as amended); Guam Law Revision Commis sion. COMMENT : Section 1517 defines with more particular itythan did § 328 of the Probate Code of Guam (1970) the acceptable methods of service of the notice of hearing of an original petition for probate of a will. See § 717 of Title 1 for further provisions con cerning what constitutes Aregis tered mail. @ § 1519. Proof of Witnessed Will in Uncontested Pro ceedings. (a) If no one appears to contest the probate at the hearing provided in Section 1515 of this Title, and upon proof that due notice of the hearing has been given pursu ant to the

ntested Pro ceedings. (a) If no one appears to contest the probate at the hearing provided in Section 1515 of this Title, and upon proof that due notice of the hearing has been given pursu ant to the provisions of Sections 1517 and 3401 of this Title, the Superior Court of Guam may admit a witnessed will to probate and grant letters testamentary or letters of adminis tration with the will annexed upon the evidence of one of the subscribing witnesses only , if the evidence shows that the will was executed in all particu lars as re quired by law . (b) If no one appears at the hearing to contest the probate, the evidence of subscribing witnesses may be received as follows: (1) By the swor n testimony of one or mor e sub scribing witnesses in open court; (2) By the affidavit of one or more subscribing witnesses, to each of which there is attached a photo graphic copy of the will; orCOL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 7(3) By the deposition of one or more subscribing witnesses, taken elsewhere than in Guam; provided, that each such subscrib ing witness shall be presented upon his examination with a photographic copy of the will, and may be asked the same questions

itnesses, taken elsewhere than in Guam; provided, that each such subscrib ing witness shall be presented upon his examination with a photographic copy of the will, and may be asked the same questions with respect to it and the handwriting of himself, the testator, and the other subscrib ing witnesses, as would be relevant and competent if the original will we represent. (c) Notwithstanding the provisions of sub section (a) of this Section, if no one appears at the hearing to contest the probate, and if the Superior Court of Guam is satisfied that the evidence of no subscribing witness can be pro cured after r easonable search or inquiry , and upon proof that due notice of the hearing has been given pursuant to the provisions of Sections 1517 and 3401 of this Title, the Superior Court of Guam may , if the will on its face con forms to all requirements of law , adm it the will to probate and grant letters testamentary or letters of administration with the will annexed as follows: (1) Upon proof of the handwriting of the testator and any one of the subscribing witnesses; or (2) Upon pr oof of the handwriting of the te stator and receipt in evidence either of a writing at the end of

pon proof of the handwriting of the testator and any one of the subscribing witnesses; or (2) Upon pr oof of the handwriting of the te stator and receipt in evidence either of a writing at the end of the document offered as a will bearing the purported signatures of all subscribing witnesses, or an affidavit of a person with personal knowledge of the cir cum- stances of execution, which wr iting or affidavit recites facts showing the due execu tion of the will. (d) If the subscribing witnesses are compe tent at the time of attesting the execution, their subsequent incompe tency , from whatever cause, will not prevent the probate of the wil l and the grant of letters testamentary or of letters of administration with the will annexed, if the will is other wise satisfactorily proved under the provisions of this Section. SOURCE: California Probate Code, § 329 (as amended). '1521. Proof of Wil l by Copy When Will is Outside Guam. If the will of a person who at the time of death was a resident of Guam is detained beyond the jurisdiction of Guam, in a court of any State or United States territo ry, and cannot be produced for probate in Guam, a pho tographic copy of the will duly

a resident of Guam is detained beyond the jurisdiction of Guam, in a court of any State or United States territo ry, and cannot be produced for probate in Guam, a pho tographic copy of the will duly authenticated may be admit - ted to probate in Guam in lieu of, and have the same force and effect as, COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 8the original will. The same proof shall be required as would be required if the original will wer e produced. SOURCE: Probate Code of Guam (1970), § 330. COMMENT : See Comment to § 1509, supra, concerning the deletion from § 330 of the Probate Code of Guam (1970) references to wills made in foreign countries. § 1523. Proof of Holographic Will. A holographic will may be prove d in the same manner as other private writings. SOURCE: Probate Code of Guam (1970), § 331. OFFICIAL FORM :See Official Form No. 5, Appendix AA@. § 1525. Proof of Lost or Destroyed Wills; Restraining Acts of Previously Appointed Admin istrator Pending He aring on Petition. (a) No will shall be proved as a lost or destroyed will unless: (1) Such will is proved to have been in physical existence at the time of the testator's death; or (2) Such will is

aring on Petition. (a) No will shall be proved as a lost or destroyed will unless: (1) Such will is proved to have been in physical existence at the time of the testator's death; or (2) Such will is proved to have been destroyed by public calamity or destr oyed fraudulently during the testator's life, with out the testator's knowledge. (b) Notwithstanding the provisions of Section 1519 of this Title, no will shall be proved as a lost or destroyed will unless its provisions areclearly and distinctly prove d by the sworn testimony of at least two (2) credible witnesses in open court. (c) If, before the filing or pending the hearing of a petition to prove a lost or destroyed will, letters of adminis tration are granted on the estate of the purported testator , or letters testamentary or letters of administra - tion with the will annexed upon any previous will of the purported testator are granted, the Superior Court of Guam may upon the motion of the petitioner restrain the personal represen tatives so appointe d from any acts or proceedings which would be injurious to the devisees or legatees claiming under the lost or destroyed will.

ion of the petitioner restrain the personal represen tatives so appointe d from any acts or proceedings which would be injurious to the devisees or legatees claiming under the lost or destroyed will. SOURCE: Subsections (a) and (b): Califor nia Probate Code § 350 (as amended); Guam Law Revision Commission. Subsection (c): Prob ate Code of Guam (1970), § 352. COMMENT : Following California's lead, the second sentence of § 350 of the Probate Code of Guam (1970) has been deleted. That sentence read: AKnowledge of the destruc tion of his will by public calamity shall not be imputed to an insane COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 9person who has been commit ted to a hospital for the insane and never restored to competency .@The Com mission is of the opinion that this sentence is not in keeping with current knowledge about people who were once uniformly called Ainsane.@ The Commission has also added, in subsection (b), the requirement that lost or destroyed wills be proved by live testimony in open court, believing that the judge should be able to see the witnesses in such cases in order better to be able to determine t heir credibility .

t or destroyed wills be proved by live testimony in open court, believing that the judge should be able to see the witnesses in such cases in order better to be able to determine t heir credibility . Finally , a revised version of § 352 of the Probate Code of Guam (1970) has been incorporated as subsection (c) in order to cause Chapter 15 to flow coherently . Sub stantively , however, subsection (c) is un changed from prior § 352. § 1527 . Record of Entry of Admission of Will to Probate; T ranslatio n of Wills. (a) When the Superior Court of Guam admits a will to probate the will shall be recorded in the permanent records of the Superior Court of Guam by the Clerk of the Superior Court of Gu am, with the notation: AAdmitted to probate (giving date); @provid ed, that the provisions of Section 1529 of this Title shall apply to lost or destroyed wills in lieu of the foregoing provisions of this subsection. (b) If the will is in English, the Su perior Court of Guam may in its discr etion certify to a correct translation thereof into Chamorro, or vice-versa, and both the original will and the translation thereof shall b e recorded as provided in subsection (a) of this Section.

r etion certify to a correct translation thereof into Chamorro, or vice-versa, and both the original will and the translation thereof shall b e recorded as provided in subsection (a) of this Section. (c) If the will is in a foreign language, the Superior Court of Guam shall certify to a correct translation thereof into either English or Chamorro, or both, in the discretion of the Superior Court of Guam, and such certified transla tion or translations shall be recorded in lieu of the original. SOURCE: Subsection (a): Probate Code of Guam (1970), § 332; Guam Law Revision Commission. Subsections (b) and (c): Guam Law Revision Commission. COMMENT : Under § 332 of the Probate Code of Guam (1970), the will was to be recorded A...in the minutes.... @The Commis sion has changed this, in subsection (a), to A...in the perma nent records of the Superior Court of Guam, @as it is not clear that the Superior Court of Guam keeps a central record known as Athe minutes. @The onlyother su bstantive difference between § 1527 and § 332 of the Probate Code of Guam (1970) is the inclusion of the Chamorro language.

urt of Guam keeps a central record known as Athe minutes. @The onlyother su bstantive difference between § 1527 and § 332 of the Probate Code of Guam (1970) is the inclusion of the Chamorro language. The Commission believes that this inclusion is necessary , in that both English and Chamorro are the official languages of Guam. This being the case, Chamorro is not a Aforeign language @such as is referred to in subsection (c) of § 1527 and thus subsection (b) is also necessary . § 1529. Provisions of Order Admitting Lost or De stroyed Will: Perpetuation of Witnesses' T estimony.COL12010615GCA ESTATES AND PROBA TE CH.15PROBATE OF WILLS 10If a lost or destroyed will is estab lished, the provisions thereof shall be set forth in the order admitting the will to probate, and the order shall be enter ed at length in the permanent records of the Superior Court of Guam. The testimony of each witness sha ll be reduced to writing, signed by such witness, and filed in the permanent records of the Superior Court of Guam, and shall be admissible in evi dence in any contest of such will if the witness has died or has perma nently removed from Guam.

ness, and filed in the permanent records of the Superior Court of Guam, and shall be admissible in evi dence in any contest of such will if the witness has died or has perma nently removed from Guam. SOURCE: Probate Code of Guam (1970), § 351; Guam Law Revision Commission. COMMENT : See Comment to § 1527, supra, concerning the change from Athe minutes@to Athe permanent records of the Superior Court of Guam. @ § 1531. No Contest Permitted as to Foreign Will if Adm itted Elsewhere . Notwithstanding any other provi sion of law , if it appears from the order or decree referred to in Section 1511 of this Title, or if it be otherwise proved in cases in which there is no such order or decree, that a will has been admitted t o probate in a State or another United States territory , or established or proved in accor dance with the laws thereof, in a proceeding in which all inter ested parties were given notice and an opportu nity for contest and in which the determination has be come final, is not subject to revocation, and is based upon a finding that the decedent was domiciled at death in that State or United States territory , and that it was valid according to the law of Guam, no

l, is not subject to revocation, and is based upon a finding that the decedent was domiciled at death in that State or United States territory , and that it was valid according to the law of Guam, no contest shall be permit ted either before or aft eradmission to probate and such will shall be admitted to probate and have the same force and effect as a will first admitted to probate in Guam, and letters testa mentary or of administration with the will an nexed shall be granted thereon to the petitio ner. SOURCE: California Probate Code, § 362 (as amended;) Guam Law Revision Commission. COMMENT : References to foreign countries have been deleted from § 362 of the California Probate Code. No such refer ences are re quired in Guam in light of the provisi ons of § 113, supra. Also see Com ment to § 1509, supra. ----------