SPECIAL
PROCEEDINGS (based on the lectures of Atty Geraldine Tiu) 3-Manresa 2018-2019
Special Proceedings; INTRODUCTION
Nov. 20, 2018 (ICFC)
What is special proceedings?
an application or proceeding to establish the status or right of a
party, or a particular fact.
What are the subject matter of special proceedings under
the Rules of Court?
Rule 72. Section 1. Subject matter of special proceedings. —
Rules of special proceedings are provided for in the following
cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor
natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation of correction of entries in the civil
registry.
Other Special proceedings
1. Petition for liquidation of an insolvent corporation
2. AM no. 00-8-10-SC—A Petition for rehabilitation, the
procedure for which is provided in the Interim Rules of
Procedure on Corporate Recovery, should be
considered a special proceeding. It is one of that
seeks to establish the status of a party or a particular
fact. The status or fact sought to be established is the
inability of the corporate debtor to pay its debts when
they fall due so that a rehabilitation plan, containing
the formula for the successful recovery of the
corporation, may be approved in the end.
3. Sec 22, RA 876 also known as the Arbitration Law.
4. Sec 47, RA 9285 also known as the ADR
5. Writ of Amparo
Section 1. Petition. - The petition for a writ of amparo
is a remedy available to any person whose right to
life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
6. Writ of Habeas Data
Section 1. Habeas Data. - The writ of habeas data is a
remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by
an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged
in the gathering, collecting or storing of data or
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
information regarding the person, family, home and
correspondence of the aggrieved party.
7. Declaration of Status as abandoned, dependent or
neglected children.
8. Voluntary/involuntary commitment of children
9. Suspension, termination or restoration of parental
authority
Application of ordinary Rules of Civil Procedure to special
proceedings
Rule 72, Section 2. Applicability of rules of civil actions. —
In the absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable, applicable in
special proceedings.
What rule in ordinary civil action that will not apply in
special proceedings? (the exception of section 2)
Rule 2, Section 5. Joinder of causes of action—A party may
in one pleading assert, in the alternative or otherwise, as many
causes of action as he may have against an opposing party
subject to the following conditions:
XXX (b) The joinder shall not include special civil actions or
actions governed by special rules. XXX
Why is this not applicable?
There is no cause of action in a special proceeding
What is the exception to that rule? (What ordinary civil
actions are joined with a special proceeding)
1. Original petition for letters of administration and an ordinary
action to compel
Guy vs CA
While the original action filed by private respondents was a
petition for letters of administration, the trial court is not
precluded from receiving evidence on private respondents'
filiation. Its jurisdiction extends to matters incidental and
collateral to the exercise of its recognized powers in handling
the settlement of the estate, including the determination of the
status of each heir. That the two causes of action, one to
compel recognition and the other to claim inheritance, may be
joined in one complaint is not new in our jurisprudence
The question whether a person in the position of the present
plaintiff can in any event maintain a complex action to compel
recognition as a natural child and at the same time to obtain
ulterior relief in the character of heir, is one which in the opinion
of this court must be answered in the affirmative, provided
always that the conditions justifying the joinder of the two
distinct causes of action are present in the particular case. In
other words, there is no absolute necessity requiring that the
action to compel acknowledgment should have been instituted
and prosecuted to a successful conclusion prior to the action in
which that same plaintiff seeks additional relief in the character
of heir. Certainly, there is nothing so peculiar to the action to
compel acknowledgment as to require that a rule should be
here applied different from that generally applicable in other
cases.
What cases are joined here?
The original action is a petition for letters of administration
which is a special proceeding while the ordinary action to
compel recognition as a natural child
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SPECIAL PROCEEDINGS (based on the lectures of Atty Geraldine Tiu) 3-Manresa 2018-2019
So the actions that were joined here are both ordinary
actions? No. Which one is the special proceeding? the
settlement of the estate.
What is the reason why an action to compel recognition of
an illegitimate child may be entertained by the settlement
court? Would the settlement court require a prior
declaration of the illegitimate child before he/she can
participate in the settlement proceeding?
In Hernaez v IAC, the court held that implicit in both Articles
283 and 285 of the Civil Code is the general rule that an action
for compulsory recognition should the brought against the
putative father, the exceptions being the instances when either
the putative parent died during the minority of the child, or
when after the death of the parent a document should appear
of which nothing had been heard and in which either or both of
the parents recognize the child, in which cases the action is
brought against the putative parent's heirs.
2. Declaration of nullity of marriage and a petition for the
settlement of the estate of the deceased
Enrico v Heirs of Sps Medinacelli.
The cases that were joined here are the action for the
declaration of nullity of marriage (ordinary action) and the other
is a petition for the settlement of the estate (SpecPro)
Why is it allowed? Isn’t it in that The Rule on Declaration
of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages as contained in A.M. No. 02-11-10-SC
specified that the person who can question the validity of
the marriage must be either of the parties?
From the case: Only an aggrieved or injured spouse may file a
petition for annulment of voidable marriages or declaration of
absolute nullity of void marriages. Such petition cannot be filed
by compulsory or intestate heirs of the spouses or by the State.
The Committee is of the belief that they do not have a legal
right to file the petition. Compulsory or intestate heirs have only
inchoate rights prior to the death of their predecessor, and
hence can only question the validity of the marriage of the
spouses upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in the
regular courts. Hence, the heirs have no cause of action while
their parent is still alive.
They can still protect their successional right, for, as stated in
the Rationale of the Rules on Annulment of Voidable Marriages
and Declaration of Absolute Nullity of Void Marriages, Legal
Separation and Provisional Orders, compulsory or intestate
heirs can still question the validity of the marriage of the
spouses, not in a proceeding for declaration of nullity, but upon
the death of a spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular courts.
Maam: When you compel acknowledgement of an illegitimate
child, it should be done during the lifetime of the putative
parent, that is the general rule. When you question the validity
of the marriage, it should be done by either of the parties of the
marriage. Those are general rules.
What if the parties died, like in the case of the putative parent,
is the illegitimate child without recourse to seek his share in the
estate of the deceased putative parent? So the exception here
is when there is a settlement proceedings. In which case an
illegitimate child can still compel acknowledgement not by the
deceased person but by the living relatives. How can he do
that? So long as there are evidence to show that there is
filiation with the deceased and the child. You have conclusive
presumptions under the Family Code when there is a public
instrument signed by the parent.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Although those are considered to be voluntary recognition
under the Family Code and that is why because of the
provisions of the Family Code, that whenever there is a written
instrument or there is a signature at the back of the birth
certificate, that constitutes voluntary recognition. That does
away with the proceeding for judicial approval of voluntary
recognition of illegitimate children. So that is one proceeding
that has been rendered obsolete by the Family Code.
So when the putative parent dies, when there is no conclusive
evidence to show voluntary recognition, but still there are other
proof like letters not in a public instrument, that can still be
used to compel recognition of the child and that can be done
during the settlement proceedings.
Same with declaration of nullity of marriage. No one else can
question the validity of the marriage except the parties. When
one of them dies, then the heirs in a settlement proceeding can
question the validity of the marriage in order to determine their
successional rights and their respective shares in the estate of
the deceased person.
So these are the exceptions to the exception that makes
inapplicable in the settlement proceeding, the joinder of causes
of action. Generally, ordinary rules can apply suppletorily
except joinder of causes of action. But under that exception
you have another exception to the exception and that is
compulsory recognition in a settlement proceeding and nullity
of marriage in a settlement proceeding. So the common
denominator here is that one of the parties dies and there is an
estate to settle and the determination of the filiation or the
validity of the marriage is CRUCIAL in the determination of who
are the heirs and the respective shares in the estate. That is
why it is allowed.
Settlement of Estate of Deceased Persons
When can you have a settlement of the estate of the
deceased person?
1. Deceased Person
2. Estate in the Philippines
3. Heirs
Decedent
When a person dies, does he have to be a Filipino citizen
for the settlement proceeding to be instituted in the
Philippines? No.
Rule 73, Section 1. Where estate of deceased persons
settled. — If the decedents is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and his
estate settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of
any province in which he had estate. xxx
So if he is non-resident, he cannot file?
He can still file, if he is an inhabitant of a foreign country, the
Court of First Instance of any province in which he had estate.
If the decedent is a non-resident, where will you file the
case?
In the RTC where he has an estate
If he is a resident?
In the RTC in the province in which he resides at the time of his
death.
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SPECIAL PROCEEDINGS (based on the lectures of Atty Geraldine Tiu) 3-Manresa 2018-2019
If an American citizen dies in the Philippines, while
vacationing here, he drowned while swimming, can you
file a settlement proceeding here? (He is a tourist, can he
own a property here?) No(?)
A balikbayan, an ofw, vacationing here in the Philippines,
also died while diving, can you file settlement proceeding
here?
Yes(?)
Maam: whether for that OFW you can file a settlement for his
estate depends on where his estate lies. Kung wala siyang
estate dito, why would you file here.
What does that tell you? It does not matter, your residency,
your citizenship. What is important here is you have estate
found in the Philippines.
If you are an American citizen and you acquired a
condominium and you died in US, can you file a settlement
here? YES. because there is an estate in the Philippines. It
does not matter if you are a foreigner. The rules does not limit
our settlement proceeding to Filipino citizens or residents in the
Philippines. The crucial point here is an ESTATE is found in
the Philippines.
When you say decedent or a deceased person, what does
it mean?
1. Actual death or
2. Physical death
For purposes of opening succession, how many years you
will have to wait?
In order for law on succession to operate the whereabouts of
the person must be unknown for about 10 years.
Exceptions?
1. If the person missing is already above the age of 75,
so it would be enough that the 5-year period would
prescribe in order to consider him dead.
2. Individuals who are missing prior who is subjected to
danger upon their person, if that would be the case, 4
years is enough for them missing in order to be
presumed dead.
a. A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of 4 years since the loss of
the vessel or aeroplane.
b. A person in the armed forces who has taken part
in war, and has been missing for 4 years.
c. A person who has been in danger of death under
circumstances and his existence has not been
known for 4 years.
Estate in the Philippines
What is an estate?
An estate is defined as the mass of property, rights and assets
left by the decedent.
What properties are included here?
1. Real property
2. Personal property
So an estate is merely limited to properties?
No. it includes rights
Limjoco v Intestate Estate of Fragrante
Under the present legal system, such rights and obligations as
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
survive after death have to be exercised and fulfilled only by
the estate of the deceased. And if the same legal fiction were
not indulged, there would be no juridical basis for the estate,
represented by the executor or administrator, to exercise those
rights and to fulfill those obligations of the deceased.
What is the nature of an estate?
Billings vs. State, supra, when the Supreme Court of said State
said: “It seems reasonable that the estate of a decedent should
be regarded as an artificial person. It is the creation of law for
the purpose of enabling a disposition of the assets to be
properly made
Does it have a citizenship? Yes. How do you determine the
citizenship?
Limjoco v Intestate Estate of Fragrante
Pedro Fragrante was a Filipino citizen, and as such, if he had
lived, in view of the evidence of record, he would have
obtained from the commission the certificate for which he was
applying. The situation has suffered but one change, and that
is, his death. His estate was that of a Filipino citizen. And its
economic ability to appropriately and adequately operate and
maintain the service of an ice plant was the same that it
received from the decedent himself. In the absence of a
contrary showing, which does not exist here, his heirs may be
assumed to be also Filipino citizens; and if they are not, there
is the simple expedient of revoking the certificate from
inheriting it.
What is the basis for determining the citizenship of the
estate?
Maam: the citizenship of the estate will follow the citizenship of
the deceased person. You have to disabuse your mind of the
notion that the estate merely consists of properties, that it is
limited to material things left by the deceased; that is not what
an estate is all about. You have properties, real and personal.
There are also rights left by the deceased.
You also have to broaden the concept of the estate. It includes
the acquisition of JURIDICAL PERSONALITY. It is not an
inanimate object that you see in the properties of the estate. An
estate will become a JURIDICAL ENTITY such that it can even
have a citizenship patterned after the citizenship of the
deceased. So the question here is:
Why does an estate have a separate juridical personalty?
And up to when shall the personality last?
Limjoco v Intestate Estate of Fragrante: If by legal fiction his
personality is considered extended so that any debts or
obligations left by, and surviving, him may be paid, and any
surviving rights may be exercised for the benefit of his creditors
and heirs. The fiction is made necessary to avoid the injustice
of subjecting his estate, creditors and heirs, solely by reason of
his death
Maam: Before, the rights, properties and the obligation of the
deceased are transferred to the heirs. Under the New Civil
Code and Rules of Procedure, that is now disallowed. The
heirs do not inherit the obligation of the deceased. The heirs
will only inherit properties, assets, rights but not obligation; that
will result in an absurd situation where your predecessor can
render you pauper by amassing so many debts during his
lifetime and leaving them to his heirs. This is unfair. There is a
shift now to the legal concept where the heirs are no longer
responsible to settle the debts and obligation of the deceased.
When a person dies, his civil personality ceases to exist. It
happens that aside from properties, rights and assets, he also
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leaves behind obligations and debts. So under the new system
now, only the rights, assets, and properties are to be inherited
by the heirs. What happens now to the debt and obligations?
Would it be unfair to the creditors because they are now left
holding an empty bag because they can no longer collect that
debts? That is why the estate now is considered an entity
separate from the heirs and the deceased person precisely for
the purpose of settling those debts. It is the estate that will
settle these debts. Its purpose is to take care of the debts.
Once the debts are settled and any residue of the estate is
distributed to the heirs, then the estate will cease to exist. If
you look at our Rules of Procedure here, Rule 73 to Rule 91,
the bulk of that is the settlement of the debts. You will know
later why these Rules here would cater towards the satisfaction
of the debts of the deceased. The law has to fill in something
because it took away from the heirs the responsibility of settling
the debts. There has to be a legal system of how you will settle
the debts left by the deceased. This is precisely the procedural
Rules on how to do that.
When you speak of ESTATE, you speak of the properties,
rights and assets and not the debts. The debts are to be taken
care of by the estate. So i-se-separate mo ang estate at ang
debts. You have now the estate to settle that. Hindi mo
pwedeng i-halo ang utang because the estate does not include
the obligations. Nasaan ang heirs dyan? WALA. The heirs are
outside of it all. They can only participate when it comes to
managing or administering the estate itself. As to how to settle
the debts, you have the settlement court. Every step of the way
on how to pay the debts will be under the supervision of the
settlement court because the heirs do not inherit the debts. So,
ang heirs maghihintay. Kung merong ma receive, good. Kung
wala, wala. Hindi sila mag aabono. Ang mga unpaid creditors
they have to apportion among themselves ano yung available
na assets. They will be partially satisfied only. They can no
longer go after the heirs.
The one that will exercise the rights of the estate will be the
administrator or executor. Diyan na ngayon papasok ang heirs.
They can be appointed as administrator or named as executor.
Can corporations or properties of a corporation be
included as among the assets of the deceased? No
Lim v CA (Jan 24, 2000)
Inasmuch as the real properties included in the inventory of the
estate of the Late Pastor Y. Lim are in the possession of and
are registered in the name of private respondent corporations,
which under the law possess a personality separate and
distinct from their stockholders, and in the absence of any
cogency to shred the veil of corporate fiction, the presumption
of conclusiveness of said titles in favor of private respondents
should stand undisturbed.
It is settled that a corporation is clothed with personality
separate and distinct from that of the persons composing it. It
may not generally be held liable for that of the persons
composing it. It may not be held liable for the personal
indebtedness of its stockholders or those of the entities
connected with it. In the same vein, a corporation by legal
fiction and convenience is an entity shielded by a protective
mantle and imbued by law with a character alien to the persons
comprising it.
Why is the Corporation sought to be included in the
inventory?
The wife alleged that the subject corporations’ capital, assets
and equity were personally owned by the late Pastor Y Lim.
Hence the alleged stockholders and officers appearing in the
respective articles of incorporation of the above business
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
entities were mere dummies of Pastor Y. Lim, and they were
listed therein only for purposes of registration with the
Securities and Exchange Commission.
Who owns majority of the shares? Why were the
Corporations included?
From the case: The wife argued that not only the properties of
private respondent corporations are properly part of the
decedents estate but also the private respondent corporations
themselves. The late Pastor Y. Lim during his lifetime,
organized and wholly-owned the five corporations, which are
the private respondents in the instant case. Petitioner thus
attached as Annexes affidavits executed by Teresa Lim and
Lani Wenceslao which among others, contained averments
that the incorporators of Uniwide Distributing, Inc. included on
the list had no actual participation in the organization and
incorporation of the said corporation. The affiants added that
the persons whose names appeared on the articles of
incorporation of Uniwide Distributing, Inc., as incorporators
thereof, are mere dummies since they have not actually
contributed any amount to the capital stock of the corporation
and have been merely asked by the late Pastor Y. Lim to affix
their respective signatures thereon.
Maam: The reason was because she wants the properties of
the corporation to be included in the inventory of the estate. A
juridical entity cannot be part of the inventory of the estate, like
a corporation or a partnership. They have a separate legal
personalities. They can own properties in their own right, sue
and be sued. It is like an individual person. You cannot list an
individual person as an asset of an estate. That is the main
reason.
Now is there an exception to the rule that the properties of
the corporation cannot be included as part of the
inventory of the estate? Yes
When the fiction is urged as a means of perpetrating a fraud or
an illegal act or as a vehicle for the evasion of an existing
obligation, the circumvention of statutes, the achievement or
perfection of a monopoly or generally the perpetration of
knavery or crime, the veil with which the law covers and
isolates the corporation from the members or stockholders who
compose it will be lifted to allow for its consideration merely as
an aggregation of individuals.
Piercing the veil of corporate entity requires the court to see
through the protective shroud which exempts its stockholders
from liabilities that ordinarily, they could be subject to, or
distinguishes one corporation from a seemingly separate one,
were it not for the existing corporate fiction.
The corporate mask may be lifted and the corporate veil may
be pierced when a corporation is just but the alter ego of a
person or of another corporation. Where badges of fraud exist,
where public convenience is defeated; where a wrong is
sought to be justified thereby, the corporate fiction or the notion
of legal entity should come to naught.
Mere ownership by a single stockholder or by another
corporation of all or nearly all of the capital stock of a
corporation is not of itself a sufficient reason for disregarding
the fiction of separate corporate personalities.
So when you say that a corporation is a mere dummy, is
that enough (to pierce the veil)? Yes. Can the heirs pierce
the veil in order to include the properties of the
corporation as among the properties to be distributed to
the heirs? Yes.
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CMH v CA
Facts: Private respondent, Cristobal M. Hojilla, filed a
complaint for Disregarding and Piercing the Veil of Corporate
Fiction, Formal Declaration or Recognition of Successional
Rights and Recovery of Title with Damages against his siblings
Cristobal alleged in his complaint that CMH was a dummy
corporation created to be the alter-ego of their mother, the late
Concepcion Montelibano-Hojilla, who purposely organized the
same in 1975 to shield her paraphernal properties from taxes
by fictitiously assigning them to CMH, with her children acting
as dummy stockholders.
Cristobal prayed that the veil of corporate fiction be pierced as
CMH was being used to deprive and defraud him of his
successional rights
Ruling: A reading of the complaint filed by private respondent
shows that its primary objective is to protect his successional
rights as an heir of his late mother, Concepcion M. Hojilla,
whose paraphernal properties he claimed were fictitiously
assigned to CMH to evade payment of taxes. Private
respondents position as a stockholder of CMH and his
relationship to the other stockholders, became incidental only
to the issue of ownership over the subject properties and did
not convert the action into an intra-corporate controversy within
the exclusive jurisdiction of the SEC but remained a civil action
cognizable by the regular courts.
Neither does the allegation about CMHs formation as an
alleged dummy corporation designed to be the alter-ego of the
late Concepcion M. Hojilla and the prayer for piercing the
corporate veil convert the action into an intra-corporate
controversy as the former is merely cited as the ground relied
upon by private respondent to prove his claim of ownership
over the said house and lots whereas through the said prayer,
he in effect exhorts the court to confirm his allegations and
thus, protect his successional rights.
Cease v. CA: The Court treated the case as an action for
partition and, applying the doctrine of piercing the corporate
veil, disregarded the separate personality of the corporation
from that of its stockholders reasoning that if the legal fiction of
separate corporate personality were sustained, then it would
be used to delay and ultimately deprive and defraud
respondents of their successional rights over the estate of their
deceased father.
Maam: so that is an exception to the general rule that when a
corporation owns properties, the properties can be included in
the estate. Take note that the properties can be included as
assets of the estate, not the corporation. Lim v CA will tell you
that the corporation have their own separate personality. It is
actually the assets in the name of the corporation that can be
included if there are grounds to pierce the corporate veil. One
ground is that there is FRAUD to deprive the heirs of their
successional rights like in the CMH case.
In CMH, there is another case where it has something to do
with corporations holding the properties on behalf of the
deceased and the corporate veil was pierced to allow the heirs
to distribute the properties among themselves. There was a
disregard of the legal fiction of separate personality in order to
prevent injustice and uphold successional rights of the heirs.
Settlement of Estate
What are the kinds of settlement of estate under the Rules
of Court?
1. Extra-judicial settlement
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
2. Judicial settlement
What are the kinds of Extra-judicial settlement?
1. Affidavit of Self-adjudication – if there is only one heir
2. Agreement among the heirs – if there are several
heirs
What are the requisites for extra-judicial settlement?
1. There is no will
2. There are no debts at the time of his death or such
debts must have been paid
3. The heirs are of age, or if minors, are represented by
a legal guardian
4. Execution of public instrument -
5. The affidavit must be filed in the office of the register
of deeds
6. A bond must also be filed simultaneously with the
public instrument, stipulation in a pending action or
the affidavit of adjudication, in an amount equivalent
to the value of the personal property involved as
certified to under oath by the parties concerned and
conditioned upon the payment of any just claim that
may be filed under section 4, Rule 74
7. The fact of the extrajudicial settlement or
administration shall be published in a newspaper of
general circulation in the manner provided in the next
succeeding section
Rule 74, Sec 1. Extrajudicial settlement by agreement
between heirs. — If the decedent left no will and no debts and
the heirs are all of age, or the minors are represented by their
judicial or legal representatives duly authorized for the
purpose, the parties may without securing letters of
administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of the
register of deeds, and should they disagree, they may do so in
an ordinary action of partition.
If there is ONLY ONE HEIR, he may adjudicate to himself the
entire estate by means of an affidavit filed in the office of the
register of deeds.
The parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for partition, or
the sole heir who adjudicates the entire estate to himself by
means of an affidavit shall file, simultaneously with and as a
condition precedent to the filing of the public instrument, or
stipulation in the action for partition, or of the affidavit in the
office of the register of deeds, a bond with the said register of
deeds, in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties
concerned and conditioned upon the payment of any just claim
that may be filed under section 4 of this rule.
It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two (2)
years after the death of the decedent.
The fact of the extrajudicial settlement or administration shall
be published in a newspaper of general circulation in the
manner provided in the next succeeding section; but no
extrajudicial settlement shall be binding upon any person who
has not participated therein or had no notice thereof.
So the heirs, is it required that all of them must be of age?
No. Although it was provide that the heirs must be of age, the
provision was qualified that with respect to minors, they must
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be represented by their judicial or legal representatives duly
authorized for the purpose.
Who may be the minor’s guardian? (maam: note, what we
have here is an EXTRAJUDICAL SETTLEMENT, no court
intervention)
1. Parents
2. If no parents, the legal guardian(?)
How about the debts? Should there be or should there
should be none?
Even if there are debts there can still be extrajudicial
settlement if the heirs pay off the debt.
Definition of debt (of the decedent)
Debts are the liabilities, payables and loans which the
decedent fails to pay before his demise. It may also include the
expenses of administration or expenses which the estate will
need to spend for the settlement of the estate.
In the case of Gerilla v De Figuracion, what are the debts
contemplated here?
GERILLA v DE FIGURACION
EXPENSES CLAIMED: Maintenance of the deceased Leandro
Figuracion and his wife in their final years, accounting of the
income of Lots 2299 and 705, the payment of expenses,
liabilities and taxes, plus compliance with other legal
requirements, etc
So if the decedent left unpaid hospital bills, funeral
expenses, estate taxes, should you go for extrajudicial
settlement? No
While petitioner points out that the estate is allegedly without
any debt and she and respondents are Leandro Figuracion’s
only legal heirs, she does not dispute the finding of the CA that
"certain expenses" including those related to her father’s final
illness and burial have not been properly settled. Thus, the
heirs (petitioner and respondents) have to submit their
father’s estate to settlement because the determination of
these expenses cannot be done in an action for partition.
Maam: when you have unpaid debts such as hospital bills,
taxes, extrajudicial settlement or partition is not allowed. These
are the example of the debts that we are talking about that
must be settled to a judicial settlement proceeding. Remember
a person cannot pay in advance his estate tax, inheritance tax.
Pwede pa ang burial expenses. Does that mean then that ALL
must go to judicial settlement because of that unpaid tax?
Who paid for the expenses of the deceased spouses in
their last few years?
Some of the heirs of the deceased. The respondents in this
case.
Maam: So if there are no debts, but the parties disagree as to
the division of the property, then they should go for partition but
not judicial settlement proceeding. What happened here is that
they couldn’t agree how to divide the properties so they had to
file a case for partition. In the course of the proceeding it turned
out that the debts left by the deceased were paid by one of the
heirs.
What happens now, is partition proper?
No. maam. In a situation where there remains an issue as to
the expenses chargeable to the estate, partition is
inappropriate.
So when you say debts, it covers those obtained by the
deceased during his lifetime. So if estate tax are part of the
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
debts to be settled of the estate, ibig sabihin wala nang
extrajudicial settlement? Under Rule 74 will that me rendered
useless, no. Halos lahat nag e-extra judicial settlement. So
how do we get away from the estate tax as part of the debts?
Yun ung sinasabi na ina-advance ng mga heirs. Like in the
case of Gerilla v De Figuracion, one heir advanced but the only
problem is hindi sila nagkasundo how to divide. So in
extrajudicial settlement, the crucial element here is the
AGREEMENT OF THE PARTIES ON HOW TO DIVIDE THE
ESTATE. In addition to the presence of the requisites for
extrajudicial settlement.
Pag hindi sila mag agree, tapos partition, the court will dismiss
the petition like the case of Gerilla, and ask you to file a judicial
settlement on the ground that there are debts that remain
unpaid. Binayaran man yung creditors but still there is money
owing to the heirs, naging creditor na ngayon ang mga heirs
kasi sila yung nagbayad. In that sense may utang ang estate.
But if all heirs agree, Rule 74 sec 1 will apply. Pwede kayong
mag extrajudicial settlement.
Another crucial element here is that there is NO WILL LEFT BY
THE DECEDENT. If there is a will, the will must be probated,
so judicial settlement.
What are the public instruments contemplated in the
requirement?
1. Affidavit of self adjudication – if one heir
2. Partition agreement – if 2 or more heirs
Maam: Only when there is disagreement, but all the other
requisites are present, then you go to partition under Rule 69.
Supposing the parties will file judicial settlement, and it
turns out, there is no debts, bayad na lahat, what will
happen?
Avelino v CA
Nor can we sustain petitioner's argument that the order of the
trial court converting an action for letters of administration to
one for judicial partition has no basis in the Rules of Court,
hence procedurally infirm. The basis for the trial court's order is
Section 1, Rule 74 of the Rules of Court. It provides that in
cases where the heirs disagree as to the partition of the estate
and no extrajudicial settlement is possible, then an ordinary
action for partition may be resorted to, as in this case. We have
held that where the more expeditious remedy of partition is
available to the heirs, then the heirs or the majority of them
may not be compelled to submit to administration proceedings.
The trial court appropriately converted petitioner's action for
letters of administration into a suit for judicial partition, upon
motion of the private respondents. No reversible error may be
attributed to the Court of Appeals when it found the trial court's
action procedurally in order.
Maam: if in the course of the judicial settlement proceeding it
turns out that there are no debts, no will and the requisites for
extrajudicial settlement or partition is present, then the court
can simply convert it into an action for partition under Rule 69.
But it cannot be the other way around. You cannot convert an
action for partition into judicial settlement proceeding
What is the reason why you cannot convert? (partition to
judicial settlement)
Gerilla v De Figuracion
the heirs (petitioner and respondents) have to submit their
father’s estate to settlement because the determination of
these expenses cannot be done in an action for partition. In
estate settlement proceedings, there is a proper procedure for
the accounting of all expenses for which the estate must
answer. If it is any consolation at all to petitioner, the heirs or
distributees of the properties may take possession thereof
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SPECIAL PROCEEDINGS (based on the lectures of Atty Geraldine Tiu) 3-Manresa 2018-2019
even before the settlement of accounts, as long as they first file
a bond conditioned on the payment of the estate’s obligations
From 2015-2016 TSN: So it is a one way process: settlement
to partition, not partition to settlement. Take note of that.
It is very crucial that the moment it becomes apparent that the
deceased left outstanding debts, the partition case must be
dismissed. Goodbye filing fees talaga.
When you file another case for the settlement of the estate,
you have to pay again the filing fees. Kaya nga mag-EXJ
nalang kayo. Kung pasok kayo sa EXJ settlement, go for it.
You should try to avoid litigation. The moment you go for
litigation, bawat kilos niyo, may bayad. Hindi kayo i-entertain
ng court kung walang bayad. Take note of this, it is very
important that you know the rules. The rule of thumb here is
that among the requisites, the very crucial there to avoid resort
to judicial settlement is the existence or presence of debt. Pag-
walang utang, no need for judicial settlement.
(EBL, Nov 27,2018)
What is the PRESUMPTION OF NO DEBT.
It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two (2)
years after the death of the decedent. (Rule 74, Sec 1)
Under the NIRC, the heirs have 6 months to settle the estate of
the decedent. But under the TRAIN LAW, it is 1 year.
So by the time you comply the requirements of paying the
estate tax, within in 1 year, wala pang presumption of no debt.
Technically, any person can come forward and file a petition for
letters of administration.
When you pay the estate tax within 1 year from the time of
death, necessarily you have to present a document to the BIR
settling the estate of the deceased. It will contain an inventory
of all the assets left by the decedent. Normally, you will present
an execution settlement, then pay the estate tax and pray that
within the remaining period of 2 years no one will file a claim.
Because if you have paid the estate tax, may 1 year pa na
natira before the presumption of no debt will arise.
So if there is no claim after 2 years from the time of death, the
extrajudicial settlement of the estate is proper. But when there
is a creditor who files a claim, that will render questionable the
extrajudicial settlement executed.
Can the parties (partition) despite the absence of debt?
Yes. If there is a good reason. As cited in the case of
PERIERA v. CA: “Section 1, Rule 74 of the Revised Rules
of Court, however, does not preclude the heirs from
instituting administration proceedings, even if the estate
has no debts or obligations, if they do not desire to resort
for good reasons to an ordinary action for partition. While
Section 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an
ordinary action for partition, the said provision does not
compel them to do so if they have good reasons to
take a different course of action. It should be noted that
recourse to an administration proceeding even if the estate has
no debts is sanctioned only if the heirs have good reasons for
not resorting to an action for partition. Where partition is
possible, either in or out of court, the estate should not be
burdened with an administration proceeding without good and
compelling reasons”.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
What constitutes "good reason" to warrant a judicial
administration of the estate of a deceased when the heirs are
all of legal age and there are no creditors will depend on
the circumstances of each case.
PERIERA v. CA
Andres de Guzman Pereira, an employee of the PAL,
passed away on January 3, 1983 without a will. He was
survived by his legitimate spouse Victoria Bringas Pereira,
and his sister Rita Pereira Nagac.
Nagac instituted a specpro for the issuance of letters of
administration in her favor pertaining to the estate of the
deceased Andres. However, it was opposed by Victoria,
claiming that there exists no estate of the deceased for
purposes of administration and praying in the alternative,
that if an estate does exist, the letters of administration
relating to the said estate be issued in her favor as the
surviving spouse.
The RTC appointed Nagac as the administrator of the intestate
estate of Andres and ordered her to to take custody of all
the real and personal properties of the deceased and to
file an inventory thereof within three months after receipt
of the order.
ISSUE: Whether or not a judicial administration proceeding
is necessary where there are no debts left by the
decedent. NO.
RULING: The administration proceedings instituted is found to
be unnecessary by the SC.
General Rule: When a person dies leaving property, the
same should be judicially administered and the competent
court should appoint a qualified administrator, in the order
established in Section 6, Rule 78, in case the deceased
left no will, or in case he had left one, should he fail to
name an executor therein.
Exception: Section 1 of Rule 74, when all the heirs are of
lawful age and there are no debts due from the estate, they
may agree in writing to partition the property without
instituting the judicial administration or applying for the
appointment of an administrator.
When a person dies without leaving pending obligations to
be paid, his heirs, whether of age or not, are not bound
to submit the property to a judicial administration, which is
always long and costly, or to apply for the appointment of
an administrator by the Court. It has been uniformly held
that in such case the judicial administration and the
appointment of an administrator are superfluous and
unnecessary proceedings.
In the case at bar, the estate of Andres de Guzman Pereira
does not appear to be substantial especially since the
only real property left has been extrajudicially settled, and
so to subject it to an administration proceeding for no useful
purpose would only unnecessarily expose it to the risk of
being wasted or squandered.
The court held that the court below before which the
administration proceedings are pending was not justified in
issuing letters of administration, there being no good
reason for burdening the estate of the deceased Andres
de Guzman Pereira with the costs and expenses of an
administration proceeding.
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SPECIAL PROCEEDINGS (based on the lectures of Atty Geraldine Tiu) 3-Manresa 2018-2019
In the case of Avelino v. CA, where there debts present?
None. There is no debt.
AVELINO v. CA
Ma. Socorro Avelino filed before the RTC of Quezon City, a
petition for the issuance of letters of administration of the
estate of Antonio Avelino, Sr., who died intestate on April
10, 1989.
Angelina Avelino, and the siblings filed their opposition by
filing a motion to convert the said judicial proceedings to
an action for judicial partition which Ma. Socorro duly
opposed.
The RTC granted the motion to convert the petition for the
issuance of letters of administration into judicial partition.
ISSUE: Whether the conversion of a petition for the
issuance of letters of administration to an action for
judicial partition is proper. YES
RULING: Section 1, Rule 74 of the Rules of Court, allows
heirs to divide the estate among themselves without need
of delay and risks of being dissipated. When a person
dies without leaving pending obligations, his heirs, are not
required to submit the property for judicial administration,
nor apply for the appointment of an administrator by the
court.
In the case at bar, the decedent left no debts and the heirs
and legatees are all of age.
Hence, the trial court appropriately converted petitioner's
action for letters of administration into a suit for judicial
partition, upon motion of the private respondents. No
reversible error may be attributed to the Court of Appeals
when it found the trial court's action procedurally in order.
What case was cited by the petitioner in trying to justify
administration proceedings instead of action for partition?
Petitioner submits that: No partition of the estate is
possible in the instant case as no determination has yet
been made of the character and extent of the decedent's
estate. She points to the Court's ruling in Arcilles v.
Montejo, 26 SCRA 197 (1969), where the court held that
when the existence of other properties of the decedent is
a matter still to be reckoned with, administration
proceedings are the proper mode of resolving the same.
The court in the case of Avelino v. CA, to justify the need
for an administrator, petitioner insists that there is nothing
to partition yet, as the nature and character of the estate
have yet to be determined. However, the court held that that
a complete inventory of the estate may be done during the
partition proceedings, especially since the estate has no
debts.
So if the issue is the character or the nature of the estate,
Avelino v. CA will tell you that the case may still be covered by
partition proceedings because the determinationk of the
character or the nature of the estate may be included in the
inventory of the estate. In this case, as there was no debt, the
administration proceeding was converted into a simple action
for partition.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
When there are several heirs, what will be the instrument
to be executed in an extrajudicial settlement?
Section 1, Rule 74 of the Rules of Court provides that the
parties may, without securing letters of administration, divide
the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in an
ordinary action of partition.
If there is only one heir?
If there is only one heir, he may adjudicate to himself the entire
estate by means of an affidavit (of self- adjudication) filed in
the office of the register of deeds (Sec. 1, Rule 74)
How will the heirs divide the estate among themselves?
The parties may, without securing letters of administration,
divide the estate among themselves as they see fit
The parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for partition, xxx
shall file, simultaneously xxx a bond with the said register of
deeds, in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties
concerned and conditioned upon the payment of any just claim
that may be filed under section 4 of this rule. It shall be
presumed that the decedent left no debts if no creditor files a
petition for letters of administration within two (2) years after
the death of the decedent.
Can the parties impugn the agreement later on? When the
agreement between the heirs is notarized, can the
agreement be questioned later on?
If the agreement is notarized, there is presumption of regularity
in its due execution
Quantum of proof needed to assail the validity of a public
instrument is clear and convincing evidence. You must
establish the grounds by clear and convincing evidence. Not
merely by establishing that your evidence id weightier than the
evidence of the adverse party. If you can establish it by proof
beyond reasonable doubt, go ahead. Bahala nang sobra kesa
kulang, when you try to question the validity of the public
instrument.
What is the effect if the instrument is not notarized?
The proof required to prove its genuineness and due execution
is preponderance of evidence.
If it is not notarized, the parties are still bound by its
stipulations. Even if the agreement is made verbally, it will still
bind the parties.
In the case of Hernandez v. Andal, it was contended that
under the rules a verbal partition is entirely void and
cannot be validated by any acts of the parties short of
the execution of a public document and its registration.
However, the court held that Section 1 of Rule 74 contains
no such express or clear declaration that the required
public instruments is to be constitutive of a contract of
partition or an inherent element of its effectiveness as
between the parties. Verbal contracts may be effective
between the parties.
If the agreement is verbal, how can it comply with the
requisites of an extrajudicial settlement under Section 1
of Rule 74? Will it not violate the rule on statute of fraud?
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No, Partition is excluded from the operation of the statute of
frauds because partition is not a conveyance but simply a
separation and designation of that part of the land which
belongs to each tenant in common.
The requirement that a partition be put in a public
document and registered has for its purpose the protection
of creditors and at the same time the protection of the
heirs themselves against tardy claims. The object of
registration is to serve as constructive notice, and this
means notice to others. It must follow that the intrinsic
validity of partition not executed with the prescribed
formalities does not come into play when, as in this case, there
are no creditors or the rights of creditors are not affected.
No rights of creditors being involved, it is competent for
the heirs of an estate to enter into an agreement for
distribution in a manner and upon a plan different from
those provided by law.
What happens when the parties enter into an extrajudicial
settlement agreement to settle the estate of the deceased
person? What is the nature of that particular transaction?
Partition is not a conveyance but simply a separation and
designation of that part of the land which belongs to each
tenant in common.
When a decedent dies, there is transfer of his property and
rights to the heirs. However, not until his estate is settled, the
heirs cannot automatically appropriate to themselves the
estate, they need to have that extrajudicial settlemet
agreement. More so if there are debts left by the decedent. No
automatic physical transfer of ownership of properties to heirs if
there are debts. The creditor has to be paid. But if there are no
debts, then the transfer is automatic upon death. When the
heirs execute an extrajudicial settlement, it is merely an act of
segregating their respective shares. When they segregate, that
does not tantamount to transfer of ownership. In that sense,
the statute of fraud does not apply. It only applies when there is
conveyance of property, which does not happen when you
extrajudicially settle the estate of the decedent.
Take note, under Section 1 of Rule 74, the segregation,
separation or distribution of the estate will be in accordance to
the wishes of the parties or the heirs. They do not need to
follow the rules on succession provided by the NCC, as long as
they all agree. If one person will renounce his share, then that
will be reflected in the extrajudicial settlement agreement as a
waiver of share. If one party is willing to settle one small portion
of the property, that could also be stated. For as long as
everyone agrees to settle. If there is one thing that you will
have difficulty in settling, that would be the BIR. Because if
there is a waiver, it will be considered as donation. So aside
from paying estate tax, you will also pay donor’s tax.
Publication
What is the purpose of the publication requirement?
The fact of the extrajudicial settlement or administration shall
be published in a newspaper of general circulation in the
manner provided in the next succeeding section (Section 1 of
Rule 74)
It shall be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the province
(Section 2 of Rule 74)
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
The purpose is notfity the parties and the world of the fact of
the extrajudicial settlement.
Will it bind the heirs who did not participate in the
extrajudicial settlement?
No, no extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice
thereof. (Section 1 of Rule 74)
The publication will only contain the fact of extrajudicial
settlement. It is purely legal notice. You don’t need to
put there the titles, the names of the heirs or how they
partition the estate. Again, legal notice lang. No need for
you to state verbatim the contents of your EXJ settlement.
That is precisely why when you publish, it cannot serve
as notice to the excluded heirs because only the fact of
extrajudicial settlement is reflected there. Therefore it cannot
bar the excluded heirs from questioning the validity or
legality of the extrajudicial settlement. Pwede pa rin
maghabol ang excluded heirs and even the defrauded
creditors. (2015 TSN)
Maam: When you will look at the newspaper, the notice will say
“Legal notice is hereby given of the fact of extrajucial
settlement of the estate of the deceased Juan Dela Cruz, who
died intestate on December 25, 2017, among his heirs in a
public instrument dated March 1, 2018, entered as page
number, book number, series of xxx”. You don’t need to
disclose the entire agreement of the parties. And because of
that the excluded heirs are bound by the agreement.
The publication comes after the fact of the extrajudicial
settlement of the estate. No amount of publication will bind the
excluded heirs. Kasi tapos na yung settlement. The notice that
will bind the heirs is one that will give them a warning before
the execution the extrajuducial settlement.
The nature of an extrajudicial settlement is Ex-parte. Sila-sila
lang ang gumawa niyan, without the participation of the
excluded heirs and the creditors. Kaya wala silang
kinalaman dun. That is the essence of the extra-judicial
settlement being ex-parte because you cannot claim that it
is binding to those who did not participate. It is only binding
on the heirs that signed it. (2015 TSN)
Only the participating heirs will be bound by the
agreement.
Neither can the creditors be bound by the terms and conditions
of the extrajudicial settlement. Like the excluded heirs they
cannot be bound
If there are defrauded creditors, as it was declared that there
are no debts in the ej settlement, but it turns out na meron
pala, the heirs cannot say that there was publication and the
creditors are bound by it. In fact the computation is to defraud
the creditors. Such that when the creditors will read the notice,
contrary to what has been declared in the ej settlement that
there were no debts. Or let’s say the heirs are not aware that
there are debts left by the decedent. That’s a fact that they can
question the ej settlement. And there is a timeframe for which
they can do that, which is found in Sec. 4, Rule 74.
Registration
Why is there a need to register the instrument?
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The non-recording or registration of instrument will not
invalidate the ej settlement.
Hernandez v Andal
Facts:
The plaintiff (Cresencia Hernandez), the intervenors, Maria and
Aquilina Hernandez, and Pedro and Basilia Hernandez who
are not parties here, are brother and sisters. They acquired in
common by descent from their father a parcel of land
On January 23, 1944, the intervenors sold 1800 square meters
of this parcel to Zacarias Andal, the defendant, and Andal's
wife. This portion purports to be the combined shares of the
intervenors in the larger parcel, allotted to them in a verbal
partition alleged to have been made (time not stated) among
the five brother and sisters. After the sale, the plaintiff
attempted to repurchase the land sold to Andal. But Andal
refused. Later Andal resold the land to the intervenors.
On April 4, 1944, Maria and Aquilina Hernandez's answer in
intervention was filed. The intervenors alleged that there had
been a partition among them and their brother and sisters
Zacarias Andal, the defendant, also testified. He said that he
was in possession of the land in question until he returned it to
the intervenors. He stated that after he came from Candelaria,
Tayabas, with the document of sale, he showed it to the
plaintiff. He said that Cresencia Hernandez upon being shown
the document merely exclaimed, "Oh, so you already have a
document." When asked whether the land "described in the
complaint of the herein plaintiff has been the object of partition
among the co-owners Pedro, Basilia, Cresencia, Maria and
Aquilina surnamed Hernandez," counsel for the plaintiff
objected on the ground that the best evidence was the
document of partition, and the objection was sustained.
Thereafter the court handed down its decision declaring that
the resale of the land by Zacarias Andal in favor of Maria and
Aquilina Hernandez was illegal and in bad faith.
Ruling:
There is a conflict of authority as to whether an agreement of
partition is such a contract as is required to be in writing under
the statute of frauds.
It must be noted that where the law intends a writing or other
formality to be the essential requisite to the validity of the
transactions it says so in clear and unequivocal terms. with
respect to the formalities of last wills and testaments, section
618 of Act No. 190 makes this emphatic statement: "No will
shall be valid to pass upon any estate real or personal nor
change or affect the same, unless it be written etc. Section 1 of
Rule 74 contains no such express or clear declaration that the
required public instruments is to be constitutive of a contract of
partition or an inherent element of its effectiveness as between
the parties. And this Court had no apparent reason, in adopting
this rule, to make the efficacy of a partition as between the
parties dependent on the execution of a public instrument and
its registration.
The requirement that a partition be put in a public document
and registered has, in our opinion, for its purpose the
protection of creditors and at the same time the protection of
the heirs themselves against tardy claims. Note that the last
sentence of the section speaks of debts and creditors. The
object of registration is to serve as constructive notice, and this
means notice to others. It must follow that the intrinsic validity
of partition not executed with the prescribed formalities does
not come into play when, as in this case, there are no creditors
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
or the rights of creditors are not affected. No rights of creditors
being involved, it is competent for the heirs of an estate to
enter into an agreement for distribution in a manner and upon a
plan different from those provided by law.
In the case of HERNANDEZ V. ANDAL, the purpose of
registration is to protect the creditors and the heirs. It serves as
constructive notice.
Who will be bound by the extrajudicial settlement if it is
not registered?
Only the parties to the instrument will be bound by the ej
settlement.
Maam: So registration is a constructive notice as the fact of
extra-judicial settlement. It is not an element of the validity of
the ej settlement. The requisites for ej settlement are:
• the decedent,
• heirs,
• no debt,
• no will.
This pertains to the intrinsic validity of the ej settlement. The
registration and publication, the public instrument (notarization)
will not affect the intrinsic validity of the ej settlement, they are
merely formalities. Nonetheless these are formalities that are
required by the law to be complied with to bind the whole
world.
The parties will still be bound by what they have agreed upon
subject to compliance with the formalities prescribed by law
because these formalities cannot negate the agreement of the
parties in the extra-judicial settlement. The absence of these
formalities however will make the extra-judicial settlement
subject to attack like authenticity, due execution. Compliance
with the formalities will make it enforceable against the whole
world with the exception of course of the excluded heirs and
defrauded creditors.
The formalities are there to protect the heirs and the creditors.
The public instrument requirement will give assurance that the
execution and genuineness of the agreement was complied
with. The publication requirement is protection for the creditors
and the heirs also as well ad the registration requirement. But
again, the absence of these formalities will not violate or affect
the intrinsic validity of the agreement among the heirs, they will
be bound. You should distinguish among the requirements
which is crucial and which is formality lang. so if formality, the
heirs will still be bound by their agreement subject to the
compliance of the formalities required.
How about the bond requirement, who will be required to
pay it and where will you pay the bond?
Rule 74, Section 3. Bond to be filed by distributees. — The
court, before allowing a partition in accordance with the
provisions of the preceding section, my require the distributees,
if property other than real is to be distributed, to file a bond in
an amount to be fixed by court, conditioned for the payment of
any just claim which may be filed under the next succeeding
section.
Why do you say “amount fixed by the court” when the
court is not involved in extrajudicial settlement?
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Rule 74, Section 1. Extrajudicial settlement by agreement
between heirs. — If the decedent left no will and no debts and
the heirs are all of age, or the minors are represented by their
judicial or legal representatives duly authorized for the
purpose, the parties may without securing letters of
administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of the
register of deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one heir, he may
adjudicate to himself the entire estate by means of an affidavit
filled in the office of the register of deeds. The parties to an
extrajudicial settlement, whether by public instrument or
by stipulation in a pending action for partition, or the sole
heir who adjudicates the entire estate to himself by means
of an affidavit shall file, simultaneously with and as a
condition precedent to the filing of the public instrument,
or stipulation in the action for partition, or of the affidavit
in the office of the register of deeds, a bond with the said
register of deeds, in an amount equivalent to the value of
the personal property involved as certified to under oath
by the parties concerned and conditioned upon the
payment of any just claim that may be filed under section
4 of this rule. It shall be presumed that the decedent left no
debts if no creditor files a petition for letters of administration
within two (2) years after the death of the decedent.
The fact of the extrajudicial settlement or administration shall
be published in a newspaper of general circulation in the
manner provided in the nest succeeding section; but no
extrajudicial settlement shall be binding upon any person who
has not participated therein or had no notice thereof.
What type of bond will be filed?
Maam: Cash bond equivalent to the value of the personal
property involved. It is the value of the personal properties that
will be the basis of the bond and you file it with the Registry of
Deeds because the court has nothing to do with these
precisely because it is extrajudicial. The value of the personal
property is based on its appraisal as it will not be fixed by the
court kasi ex-parte nga diba
The purpose of the extrajudicial settlement is for you to have a
documentary basis to effect the transfer of ownership from the
decedent to the heirs.
What is the conditional requirement?
payment of any just claim that may be filed under section 4 of
this rule.
Maam: the bond will be liable for any claim (by the creditors
and excluded heirs) within a period of 2 years from the
distribution
Itong 2-year period within which the bond will be held liable is
from the distribution. After you make your extrajudicial
settlement, the bond will be held liable 2 years thereafter for
any claim by the unpaid creditors or heirs.
How do you relate it with the new TRAIN law?
Maam: in so far as bank deposits are concerned, the latest
amendment made by train law is that there is no need to
submit an extrajudicial settlement because the bank can just
deduct a final withholding tax in the amount of 6%(so bumaba
na rin yung estate tax natin similar na siya sa capital gains tax)
+ doc stamp pa siguro, that will be deducted as a final tax from
the bank deposit of the decedent. The rule before, the bank will
never release it, the bank will hold on to the deposit of the
deceased until you can present an extrajudicial settlement, and
he (administrator/executor) must include the bank deposit in
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
the extra-judicial settlement. Kung wala yan hindi rin yan re-
release ng banko
Who are are the heirs that can claim here?
Excluded heirs
Since the bond is a form of security that may be resorted
to by the unpaid creditors and excluded heirs within 2
years from distribution and the basis for the bond are
personal properties, what about for real properties? What
will be the protection of the excluded heirs and unpaid
creditors for their claims against the real property?
The real property
Section 4. Liability of distributees and estate. — If it shall
appear at any time within two (2) years after the settlement and
distribution of an estate in accordance with the provisions of
either of the first two sections of this rule, that an heir or other
person has been unduly deprived of his lawful participation in
the estate, such heir or such other person may compel the
settlement of the estate in the courts in the manner hereinafter
provided for the purpose of satisfying such lawful participation.
And if within the same time of two (2) years, it shall appear that
there are debts outstanding against the estate which have not
been paid, or that an heir or other person has been unduly
deprived of his lawful participation payable in money, the court
having jurisdiction of the estate may, by order for that purpose,
after hearing, settle the amount of such debts or lawful
participation and order how much and in what manner each
distributee shall contribute in the payment thereof, and may
issue execution, if circumstances require, against the bond
provided in the preceding section or against the real estate
belonging to the deceased, or both. Such bond and such real
estate shall remain charged with a liability to creditors,
heirs, or other persons for the full period of two (2) years
after such distribution, notwithstanding any transfers of
real estate that may have been made.
As far as the real estate is concerned once the distribution
is made, will the distributee now have full ownership of the
real estate?
Yes maam. But subject to any claims filed within the 2 year
period. This claims include claims of excluded heirs and unpaid
creditors
So if the heirs had received the real estate, and sells the
same to a third person, will the liability still attach despite
the sale?
Yes. maam as long as the extra-judicial settlement. Moreover,
section 4 provides that Such bond and such real estate shall
remain charged with a liability to creditors, heirs, or other
persons for the full period of two (2) years after such
distribution, notwithstanding any transfers of real estate
that may have been made.
Is the buyer an innocent purchaser for value? or can he
argue that he is a buyer in good faith?
it depends whether or not there is an annotation on the title of
the property.
Arenas v Roces
Facts:
The spouses Cesar and Lilia Roces were the owners of two
contiguous parcels of land located on Arayat Street,
Mandaluyong, covered by Transfer Certificates of Title Nos.
57217 and 57218. On November 13, 1962, the Government
Service Insurance System (GSIS) caused the annotation of an
affidavit of adverse claim on the titles alleging that the spouses
have mortgaged the same to it. Based on an order from the
RTC, the titles of the property were issued in the name of
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GSIS.
Cesar Roces died intestate on January 26, 1980. He was
survived by herein respondents (his widow and children) but on
July 22, 1992, Reynaldo L. Montinola, a nephew of Lilia Roces,
executed an affidavit of self-adjudication over the Arayat
properties. He alleged that the properties were owned by the
spouses Cesar and Lilia Roces, both of whom died intestate,
on September 13, 1987 and June 27, 1989, respectively; that
the properties were acquired during the existence of their
marriage; that the spouses left no heirs except the brother of
Lilia Roces, who was his father; that neither of the spouses left
any will nor any debts; and that he was the sole heir of the
Roces spouses.
In an action filed by Montinola against the GSIS, he obtained a
favorable judgment which the court ordered for the cancellation
of the TCTs in the name of GSIS and issue it in his favor.
Sometime in July 1993, Montinola executed a deed of absolute
sale of the property n favor of petitioner spouses Eduardo and
Josefina Domingo. In the new TCT in the name of the spouses
it contained the following annotation: “Subject to the provision
of Section 4, Rule 74 of the Rules of Court with respect to the
inheritance left by the deceased SPS. CESAR ROCES & LILIA
MONTINOLA.”
Respondents learned of the sale to petitioners so they filed an
action against the petitioners where the petitioners argued that
they were buyers in good faith.
Ruling:
In David v Malay, it was held that the buyer of real property the
title of which contain an annotation pursuant to Rule 74,
Section 4 of the Rules of Court cannot be considered innocent
purchasers for value. In the same vein, the annotation at the
back of TCT No. 7299 in this case referring to Rule 74, Section
4 of the Rules of Court was sufficient notice to petitioners of the
limitation on Montinolas right to dispose of the property. The
presence of an irregularity which excites or arouses suspicion
should prompt the vendee to look beyond the certificate and
investigate the title of the vendor appearing on the face thereof.
Purchasers of registered land are bound by the annotations
found at the back of the certificate of title.
Hence, petitioners cannot be considered buyers in good faith
and cannot now avoid the consequences brought about by the
application of Rule 74, Section 4 of the Rules of Court.
Maam: that is the consequence of annotation of liability under
Rule 74, section 4. It renders the buyer of the property in bad
faith who will be made liable for the claim of the unpaid
creditors or defrauded excluded heirs. That is why it is a lien or
encumbrance for a period of 2 years. So double check when
you buy a property.
Now it could be that after the lapse of 2 years that the
annotation is still there. Because that is a lien or encumbrance,
if you are an heir, you must file a petition with the ROD to have
it removed otherwise when you sell the property and you are
claiming that the property is free from liens and encumbrances,
and the annotation is still there, you will be guilty of
misrepresentation.
How will the annotation appear?
The annotation shall make reference to the provisions of Rule
74, sec 4 of the Rules of Court.
What is the nature of the annotation under Rule 74, sec
4??
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
It is a legal encumbrance. It is more than a notice.
When will there be an annotation? What is the nature of
the annotation under Section 4, Rule 4?
Tan v Benolirao
Facts:
Spouses Lamberto and Erlinda Benolirao and the Spouses
Reynaldo and Norma Taningco were the co- owners of a
property located in Tagaytay City. On October 6, 1992, the co-
owners executed a Deed of Conditional Sale over the property
in favor of Tan for the price of P1,378,000.00.
On November 6, 1992, Lamberto Benolirao died intestate.
Erlinda Benolirao (his widow and one of the vendors of the
property) and her children, as heirs of the deceased, executed
an extrajudicial settlement of Lamberto’s estate on January 20,
1993. On the basis of the extrajudicial settlement, a new
certificate of title over the property, TCT No. 27335, was issued
on March 26, 1993 in the names of the Spouses Reynaldo and
Norma Taningco and Erlinda Benolirao and her children.
Pursuant to Section 4, Rule 74 of the Rules, the following
annotation was made on TCT No. 27335
Tan eventually failed to pay the balance. He refused to comply
with vendors’ demands and instead wrote them a letter (dated
May 28, 1993) claiming that the annotation on the title, made
pursuant to Section 4, Rule 74 of the Rules, constituted an
encumbrance on the property that would prevent the vendors
from delivering a clean title to him. Thus, he alleged that he
could no longer be required to pay the balance of the purchase
price and demanded the return of his down payment.
Ruling:
An annotation is placed on new certificates of title issued
pursuant to the distribution and partition of a decedent’s real
properties to warn third persons on the possible interests of
excluded heirs or unpaid creditors in these properties. The
annotation, therefore, creates a legal encumbrance or lien on
the real property in favor of the excluded heirs or creditors.
Where a buyer purchases the real property despite the
annotation, he must be ready for the possibility that the title
could be subject to the rights of excluded parties.
In the case at bar, by the time Tan’s obligation to pay the
balance of the purchase price arose on May 21, 1993 (on
account of the extensions granted by the respondents), a new
certificate of title covering the property had already been
issued on March 26, 1993, which contained the encumbrance
on the property; the encumbrance would remain so attached
until the expiration of the two-year period. Clearly, at this time,
the vendors could no longer compel Tan to pay the balance of
the purchase since considering they themselves could not fulfill
their obligation to transfer a clean title over the property to Tan.
Maam: so the representation there was that the property will
be free from lien or encumbrance which is not the case here
because of the annotation under section 4, Rule 74. The
annotation here is not a mere notice. It is a lien or an
encumbrance and it will be binding upon the transferee or
buyer of the property.
Why is it that only real properties will have this
annotation?
Because with respect to personal properties, there is already a
bond.
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Maam: the 2 year period will still stand in so far as the
distributed assets is concerned but recourse for the liability will
defer if it is personal or real property. If it is personal you will go
after the bond if it is real property, the annotation will protect
the heirs and unpaid creditors.
The bond as well as the annotation is geared to protect the
creditors and excluded heirs but it is only limited for 2 years. If
within the 2-year period nobody comes out and makes a claim,
that will be barred. The only exception will be the excluded
heirs as they are not bound by the 2-year period.
Why are the heirs not bound by the 2-year period?
Villaluz v Neme
The deed of extrajudicial partition was fraudulent and vicious,
the same having been executed among the 3 sisters, without
including their co-heirs, who had no knowledge of and consent
to the same. The partition, therefore, did not and could not
prejudice the interest and participation of the herein plaintiffs-
appellants, and the sale of the land to the defendants did not
and could not also prejudice and effect plaintiffs-appellants'
interest and participation thereon.
Sec 4, Rule 74 refers only to the settlement and distribution of
the estate of the deceased by the heirs who make such
partition among themselves in good faith, believing that they
are the only heirs with the right succeed.
In the case at bar, however, the surviving sisters could not
have ignored that they had co-heirs, the children of the 3
brothers who predeceased their mother. Considering that
Maria Rocabo died during the regime of the Spanish Civil
Code, the distribution of her properties should be governed by
said Code, wherein it is provided that between co-heirs, the act
to demand the partition of the inheritance does not prescribe.
Verily the 3 living sisters were possessing the property as
administratrices or trustees for and in behalf of the other co-
heirs, plaintiffs-appellants herein, who have the right to
vindicate their inheritance, regardless of the lapse of time
After all the requisites for judicial settlement have been
complied with, the essential and the formal, what is the
effect of extra-judicial settlement?
Alcala v Pabalan
After the actual division of the estate among themselves they
became the absolute owners of their respective allotments and
were tenants in common of that portion of the property which
remained pro indiviso. After the mutual agreement among
themselves for the division of the estate, either actually
distributing their respective shares or leaving the same
undivided, the property in question was no longer the property
of the estate of Juan Banatin (decedent), but the undivided
property of the heirs.
Maam: we have the basic elements:
1. heirs
2. estate
3. decedent – died intestate
4. no debts
Pag walang heirs there can be no extra-judicial settlement. So
if there are several heirs, they can do an agreement in the form
of a partition or if there is only one heir, a self-adjudication.
The formalities that we mentioned all pertained to the
agreement or self-adjudication such that they must be in
1. Public instrument,
2. There must be publication and
3. Registration
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
When you register, that is where you are required to post the
bond and there will be annotation. The annotation will pertain
to real properties, the bond to the personal properties.
Now supposing that you already complied with all of the
requirements, the 2-year period had lapsed and walang nag
reklamo or ang claim, everything is in order, what is now the
effect of that? The heirs will become absolute owners.
Prior to the settlement, while ownership is ESSENTIALLY
transferred to the heirs, they cannot yet claim to be absolute
owners because there is yet no segregation as to what is due
to them according to their shares. In other words, they become
co-owners on the estate. That is why pag merong conflict
between them, partition is resorted. In partition, in the first
stage, we have to establish co-ownership. It is settled that all
heirs are co-owners of the estate kaya most of the cases is
partition.
So when they become absolute owners of the specific part
of the estate by virtue of the agreement, what is the effect?
Maam: there will be no more estate. Pag na distribute nay an,
wala na siya. Dissolved na estate. And that is why a
subsequent petition for administration proceeding will no longer
prosper as there is no more estate. That is the effect of an
extra-judicial settlement.
What happens if may na discover na property of the
deceased not covered the extra-judicial settlement of the
estate, does that mean that they can still revive or petition
for the judicial settlement? No maam. What will be the
remedy?
Maam: There will be another extra-judicial settlement. Not
judicial because walang debt and then tapos na ang 2-year
presumption of no debt. You already have in your favor the
presumption of no debt, so therefore with more reason to go for
extra-judicial settlement because there is an estate.
As a general rule, pag na settle na, no more estate. The estate
ceases to exist. That is the rationale behind that. The estate
comprises of assets, properties, and rights. Pag na distribute
na, then no more estate. Now there are exceptions to the rule
which we will take next week ☺
(MCPR/Dec 4, 2018)
Excluded Heirs
Who are the excluded heirs?
Rule 74, Section 4. An heir or other person who has been
unduly deprived of his lawful participation in the estate. Those
that did not participate. They deprived of the lawful
participation of the estate.
Only those that did not participate?
Those who were unlawfully deprived of the estate?
Why do you say that?
There are those heirs that they participated but they were not
given their lawful share. The amount of successional rights or
the amount of shares that they are entitled, the heirs did not
receive.
So they are participating heirs?
Yes, maam. But they were not able to get their lawful shares.
Which is which, what are excluded heirs, participating or
non-participating heirs? Non-participating heirs.
Obviously if they did not participate , they did not get their
shares.
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Is that all? Those who were deprived of their shares.
So if heirs participated, but they did not get their share,
what would be the remedy?
They can file for judicial settlement of the estate as provided for
in the case of Sampilo vs CA. In addition to that, they can file
an action to recover the property, they also have the right to
demand partition o be able to get their lawful shares. They can
also ask for the reconveyance of the property in the hands of
rd
3 persons.
In what period of time they can do that?
Because they are excluded, they can go beyond the two-year
period provided.
We are talking about the participating heir who did not
receive the share?
Two years as provided for by section 4 of rule 74. Two years
from the distribution or settlement of the estate
Why are they limited to the two year period?
By express provision of section 4 rule 74. They have to file
their claim within two years. Because if they don’t, it would be
as if waived or abandoned their rights.
For the excluded heirs or nonparticipating heirs, how long,
what are their remedies?
For the non participating heirs they can go beyond the two year
period. They can ask for judicial settlement of the estate.
That is the only remedy?
They have different remedies. For example, they can file to
recover the property.
What kind of action? And what is the basis of the action?
They can file for an action of reconveyance. Since the property
rd
is already in the hands of 3 persons.
Why would you ask for reconveyance? what would be the
legal basis?
rd
For example, the 3 person was not buyer in good faith, so the
heir can ask the property to be reconveyed.
So not a buyer in good faith of the 2yr annotation of the
lein? What if the 2yr period has elapsed? What if there is
no more annotation? What if the buyer bought the
property after the lapse of the 2yr period?
The heir cannot anymore go after the property.
that is it, no more remedy for the excluded heir? Because
of the lapse of the 2yr period?
Aside from that, the excluded can institute a proceeding for the
administration of the estate or file for judicial settlement as
provided for in the case of sampilo vs ca.
What happened in Sampilo?
SAMPILO VS CA
Sinopera filed for a judicial settlement case and petitioned the
court that she would be appointed as administrator.
The case prospered. As to them the law is clear that if they
claim to have been in any manner deprived of their lawful
right or share in the estate by the extrajudicial settlement,
they may demand their rights or interest within the period
of two years, and both the distributes and estate would be
liable to them for such rights or interest. Evidently, they are
the persons in accordance with the provision, may seek to
remedy, the prejudice to their rights within the two-year period.
But as to those who did not take part in the settlement or
had no notice of the death of the decedent or of the
settlement, there is no direct or express provision is
unreasonable and unjust that they also be required to
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
assert their claims within the period of two years. To
extend the effects of the settlement to them, to those who did
not take part or had no knowledge thereof, without any express
legal provision to that effect, would be violative of the
fundamental right to due process of law.
WILL YOU BE BARRED BY PRESCRIPTION? NO
But even if Section 4 of Rule 74 is a statute of limitations,
it is still unavailing to the defendants. The action is one
based on fraud, as the widow of the deceased owner of the
lands had declared in her affidavit of partition that the
deceased left no nephews or niece, or other heirs except
herself. Plaintiff's right which is based on fraud and which
has a period of four years (Section 43, par. 3, Act no. 190;
Article 1146, Civil Code), does not appear to have lapsed the
action was instituted. Judicial proceedings where instituted in
March, 1950 and these proceedings must have been instituted
soon after the discovery of fraud. In any case, the defendants
have the burden of proof as to their claim of the statute of
limitations, which is their defense, and they have not proved
that when the action was instituted, four years had already
elapsed from the date that the interested parties had
actual knowledge of the fraud.
In this case, the decedent is Teodoro lorerete. He left 4
parcels of land. His heirs are hi widow, Leoncia and several
nephews and nieces. Leonicia executed an affidavit stating
that the deceased left no other heir but only her as the widow.
S the affidavit was registered at rod when the nephews and
nieces discovered this, they instituted the proceedings for the
administration of the estate of Teodoro Lorete. This was the
remedy they availed because excluded. The main issue in the
case, because Leoncia executed the settlement as the only
heir. The nephews and nieces were able to avail of the proper
remed or file a judicial settlement. The sc held that execution
settlement instituted by the widow id not bind them. Moreover,
they are excluded heirs they are not bound by the----. They did
not have knowledge or they were not warned of the institution
of the settlement proceeding by Leoncia.
Aside from judicial settlement, what other remedies are
available for the excluded heirs?
Aside from judicial settlement, the other remedy is a direct
action for the recovery of the share of the excluded heirs
against the participating heirs.
When can you institute?
Under the civil code, an action based on fraud prescribe in 4
yrs after the discovery. Applying that the excluded heirs can
file an action for recovery within 4 years from the discovery of
the fraud or of the act that constitutes fraud.
Aside from the action to recover or reconveyance, what
else? The excluded heir has the right to partition.
On what ground?
The remedy of partition is available to the exclude heir on the
ground that as an heir of the decedent, they are considered as
co-owners of the estate or the subject property.
What is the authority of that?
VILLALUZ VS NEME
The surviving sisters could not have ignored that they had co-
heirs, the children of the 3 brothers who predeceased their
mother. Considering that Maria Rocabo died during the regime
of the Spanish Civil Code, the distribution of her properties
should be governed by said Code, wherein it is provided that
between co-heirs, the act to demand the partition of the
inheritance does not prescribe. (Art 1965 [Old Civ. Code];
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Baysa, et al. v. Baysa, 53 Off. Gaz., 7282). Verily the 3 living
sisters were possessing the property as administratrices or
trustees for and in behalf of the other co-heirs, plaintiffs-
appellants herein, who have the right to vindicate their
inheritance, regardless of the lapse of time
The case of Villaluz------- in this case, the decedent Martero
died intestate she left 3 daughters and grand children.
However, only the parties , Carlos , Maria Patricia and
Senfirisa. Excluded sister is the other sister of maria , other
daughters and grandchildren of Maria. They executed a deed
of extrajudicial partition only among themselves to the
exclusion and without the knowledge and consent of the
nephews and nieces, the other sister. The SC held that it was
impossible for the surviving sisters not well to comply.
What was the ground to set aside the extra judicial
partition?
The SC said that the deed of extra judicial partition was
fraudulent and viscous, the same having executed among the
sisters without including their co-heirs who had no knowledge
of the transaction sale. The partition did not prejudice the
interest and participation of the excluded heirs.
In that case, the SC said the excluded heirs is one who has no
knowledge nor given their consent to the partition, to the extra
judicial settlement. If you participated, then obviously you are
not excluded heir. If you did not participate, but you have
knowledge, then you are still not an excluded heir. Because
the definition of an excluded heir, in the case of Vllaluz, is that
the heirs must have been excluded, meaning no participation,
no knowledge of the extra judicial partition. The ground to
recover or set aside the extra judicial partition because of
viscous fraud. There was viscous fraud because they know
very well the existence of the other heirs but they deliberately
excluded these other heirs. In other words, intentional and
deliberate. The term used here by the SC is viscous. That is a
ground to set aside the extra judicial settlement or partition for
the excluded heirs to ask for partition of the property or the
estate in order to recover their rightful share.
What happened in the case of Ancog?
ANCOG VS CA
ISSUE: WON the action of Gregorio Yap has already
prescribed? NO
Court of Appeals erred in ruling that the claim of petitioner
Gregorio Yap, Jr. was barred by laches. In accordance with
Rule 74, §1 9 of the Rules of Court, as he did not take part in
the partition, he is not bound by the settlement. 10 It is
uncontroverted that, at the time the extrajudicial settlement was
executed, Gregorio Yap, Jr. was a minor. For this reason, he
was not included or even informed of the partition.
XXX
In this case, the records disclose that the intention of the
parties to the extrajudicial settlement was to establish a trust in
favor of petitioner Yap, Jr. to the extent of his share. Rosario
Diez testified that she did not claim the entire property, 13
while Atty. de la Serna added that the partition only involved
the shares of the three participants
The siblings of Gregorio-----extra judicial among themselves
however excluding Gregorio Yap. At the time of the extra
judicial partition was executed, Gregorio was still a minor.
Gregorio is questioning such extra judicial partition and he is
entitled to proper partition wherein his share is excluded.
Was he represented by his legal guardian at that time?
Considering it that he is still a minor. He was represented.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
What was the reason they made the extra judicial
settlement?
In order their mother, Rosario---- inaudible. Thereafter, Atty
dela Serna prepared the extra judicial settlement ….. reads
from the text…. 15 years old to sign. As a result thereof the
titled was cancelled and another title was issued in their favor.
What happened to the extra judicial settlement?
Actually Gregorio yap has no knowledge of this, upon learning
as such, they filed an action for partition alleging that the extra
judicial partition instrument was simulated or void. They
claimed that in signing the instrument, they did not really intend
to convey their interest in the property with their mother but
only to enable her to obtain a loan on the security of the land to
cover the expenses ---reads from text--- what happened here
was that property was passed on others.
Was it nullified? Was Gregorio yap an excluded heir?
Yes, he was an excluded heir at the time the extra judicial
settlement was executed and no knowledge thereof and was
not a party to the settlement.
What was the effect?
The SC eld that the claim of Gregorio was not barred by laches
in accordance with rule 74 section 1 of roc as he did became
party to the partition and he is bound by the proceeding.
Who were bound? What happens to the extrajudicial
settlement? is it valid with respect to certain heirs and
invalid with respect to the excluded heirs? Was the entire
extrajudicial settlement nullified? was it nullified or not?
Were his siblings and his mother.
It was actually a bading decision. Bading ang decision na SC
dito. It was not entirely nullified. It was partly upheld with
respect to the shares of the participating heirs. Consistent with
the principles that if you participated, you are bound by it and
you are limited to the questioning regarding your share. Then
those who signed are bound it. But those who did not sign like
Gregorio Yap Jr cannot be bound by it. So with respect to his
share, it is nullified. Ano mangyayri ngayon? He will be able to
get his certain portion, a certain percentage of the property will
be given to him. You will be considered a co-owner to the
extent of his share in the property. Bading ang decision na ito.
Inauphold ang settlement with respect to those participated
and nullified in so far as excluded heir is concerned. So if they
rd rd
have sold the property to a 3 person the, then that 3 person
will have to respect the share of Gregorio Yap Jr. so if the
share of Gregorio Yap is ¼, 1/8 whatever, then the owner-
buyer will have to recognize that. Magiging co-owners sila sa
property. Because in so far as the other participating heirs is
rd
concerned, wala na, benenta na nila sa 3 person.
How much is the share of Gregorio Yap here?
He is entitled to ¼.
So, ¼ of the property is given to him, yun ang share nya. The
excluded heir can do that.
So why is it that in the case of Villaluz, the entire partition
was nullified? Yet in the case of Ancog, there was a
bading decision, only a portion was nullified. Can he not
consider viscous fraud to be be present here?considering
that gregorio yap was really an heir and yet he was not
included in the extrajudicial settlement?
I think it cannot be considered as a fraud because the act of
siblings of Gregorio was not for the purpose of unduly depriving
of his share but by reason of his minority at the time the extra
judicial settlement was executed.
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I don’t know, if you look at it and compare it with Villaluz and
Ancog. The heirs know the existence of their co-heirs. And yet
they did not include. In Villaluz, the SC said there is viscous
fraud, so the entire agreement is nullified. Instead of only
partially nullifying and upholding the share of the excluded
heirs, the entire agreement was nullified.
But here only a partial nullification was done. In so far as the
share of Gregorio Yap is concerned. Was there viscous fraud
proclaimed by the SC in the case of Ancog? There is no
mention of viscous fraud. So that is something to ponder on.
Probably it is because of they reason that they cited for
executing the extra judicial settlement. Simply facilitating for
taking out of a loan from the bank. Maybe that would have
made more acceptable compared to what happened to the
case of Villaluz.
At any rate,you see it in the cases of Villaluz and Ancog the
effect when there is exclusion of heirs. It could either result in
the outright nullification of the entire agreement or merely a
partial nullification depending in the factual circumstances. But
if there is viscous fraud under the case of Villaluz, the entire
agreement can be declared void. If there is no viscous fraud,
then, maybe a partial nullification to give the excluded heir his
rightful share can be granted.
Aside from partition, what other action can be resorted to
by the excluded heir?
ARENAS VS ROCES
No, they are not purchasers for value. In such case, it was held
that the buyer of real property the title of which contain an
annotation pursuant to Rule 74, Section 4 of the Rules of Court
cannot be considered innocent purchasers for value. The
annotation at the back of the TCT referring to Rule 74, Sec 4 of
the ROC was sufficient notice to petitioners of the limitation on
the seller’s right to dispose of the property. The presence of an
irregularity which excites or arouses suspicion should prompt
the vendee to look beyond the certificate and investigate the
title of the vendor appearing on the face thereof. Purchasers of
registered land are bound by the annotations found at the back
of certificate of title.
In the case of Arcenas vs Roces, an action for reconveyance is
a remedy.
On what ground? On the ground of fraud.
In the case of Arenas vs Roces, who were made liable for
the reconveyance of the property?
ARENAS VS ROCES
Not only the distributees can be made liable but also the
transferees in interest. If the property was sold to them by the
heirs, then the title under their name has that annotation, that it
is open for claims within 2 years
The nephew of the spouse of the testator is made liable for the
reconveyance of the property.
But he has already sold the property, it was the nephew
who perpetruated the fraud
It is Delima --- the buyer from the seller—Montenola
What happened to the extra judicial settlement made by
the nephew, was it entirely invalidated or merely partially
invalidated? It was entirely invalidated.
Why was it entirely invalidated?
Because Montenola execute here an affidavit of self-
adjudication but in truth and in fact that he is not the only heir
while there are others. The wife is still alive.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Who are the heirs?
The wife of the decedent Cesar and children of the spouses
Roces.
Was the nephew even an heir? No.
He was not an heir. Kung sa Villaluz case ---- viscous fraud
inexcluded yun mga other co-heirs mo. Eto na hindi
heir,nagpapagap lang na heir, I don not know what you call
that kind of fraud. It is the “viscousest” kind. In other words,
swindling na ang ginawa noon. He pretended to be an heir
when in fact he was not an heir. The deceased here was still
alive, pinatay na nya at may mga anak pa. so may mga
compulsory heirs. Obviously, you are the nephew, you are
already excluded. Collateral heirs can ever inherit when there
are compulsory heirs in the direct descending or ascending
line. Hindi sya heir, nagpangap na heir so anong tawag mo
dyan? Obviously, --- boring talaga ginawa nya there is no way
to justify it. It is obviously null and void. Mas masahol pa
viscous fraud sa case nil Villaluz. The entire agreement is
void. It was entirely false. It was entirely fraudulent. So the
heirs here can recover.
What action was filed by the heirs? Filed a complaint against
Petitioners. They filed the complaint against Montinola and the
lawyers and they alleged that the affidavit of the self-
adjudicaton was fraudulent because Montinola was not an heir
of the Roces spouses and it was not proven that Roces was
dead. Therefore, the affidavit of self-adjudication, the deed of
absolute sale as well as the transfer certificate of titles covering
the subject properties were null and void.
The action here is to declare void the extra judicial settlement
and the subsequent sale. And the effect to that is the -----
settled of the buyers. Because they are not buyers in good
faith.
With respect to the unpaid or defrauded creditor, what are
the remedies?
As to the unpaid creditors they can go after the bond. If the
bond is not sufficient they can go for settlement proceedings.
When do they file the settlement proceedings? Within 2 yrs
after the settlement ----
There are 2 periods when mentioned in the rules where the
defrauded creditors can file settlement proceeding. One is
within two years from death and if there is yet no settlement of
the estate that would prevent the presumption of no death from
setting in. and the other would be 2 years from distribution.
when there is already settlement or distribution of the estate,
then the unpaid or defrauded creditors can file the judicial
settlement within 2 years from settlement or distribution.
Another remedy would be extra judicial settlement and that is
to go after the bond.
How long can they go after the bond? Within the 2years
after the distribution.
So 2 years from distribution the bond can still be held liable for
the claim of any unpaid creditor. And even the claim of the hers
who were not given rightful share.
How about the participating heir, can he file judicial
settlement proceedings? Is that remedy available to
participating heirs?
The remedy is provided under section 4 covers those sales of
persons duly deprived of participation. It
Who is the heir being referred to in section 4 of rule 74? Is
it the excluded heir or the participating heir? The
participating heir.
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So the participating heir can file judicial settlement? To
recover his lawful share under section 4 rule 74. For how
long, within what period of time? Within 2 years after the
distribution.
If the participating heir was not given what is due him under the
extra judicial settlement, then he actually utilize the provision of
section 4 rule 74 to file judicial proceeding in order to recover
his share. But really, as we know judicial settlement will only
be feasible if there are debts. If there is none, probably what is
meant here is a partition proceeding, not necessarily a judicial
settlement proceeding. But the provision has to be in
accordance with the agreement of the participating heir had
with the other co-owners.
As to the excluded heir, section 4 rule 74 does not apply. As
you know that section 4 rule 74 provides for the 2 year period
not applicable to the excluded heir. Even beyond the period
can enforce his claim by judicial settlement , partition,
reconveyance or declaration of nullity of the extra judicial
settlement.
There are several actions or proceedings that can be instituted
by the excluded heirs. It is not just limited to judicial
settlement.Judicial settlement is appropriate if there are debts
that are yet to be paid. Pag walang debts, then partition or
simply declaration of nullity or reconveyance of the share of the
excluded heir.
Those are the remedies in cases that were assigned to you,
take note or pay attention to the nature of the action that were
filed. And they were all given due course by the sc. Meaning to
say, those kinds of action would prosper if you are excluded
heir and you want to question the validity and enforceability of
the extra judicial settlement, which think is not valid because of
the exclusion of certain heirs.
All those cases assigned to you look at the procedure what
were the kind of action that were filed in court and how these
actions were given due course and even granted by the sc.
The remedy is not limited to judicial settlement . because
judicial settlement will only apply if there are debts to be paid
from the estate.
So, if is a defrauded creditor, obviously may utang, therefore
judicial settlement. The defrauded creditor can never file for
partition, hindi naman siya co-heir, paano nyo establish ang
right niya, if any to the property of the estate. Judicial
settlement for the defrauded creditor.
Can the defrauded creditor file an action for the
declaration of nullity of the extra judicial settlement? Can
a defrauded creditor file an action for reconveyance? Are
those actions available for the defrauded creditor?
No, since creditors are not heirs of the decedent and the
creditors wanted to satisfy -----
The remedy of the defrauded creditor would be:
1. Judicial settlement as provide for.
2. Partition and reconveyance are actions which
presuppose that the plaintiff there, a co-heir or someone has
interest of the property.
A creditor has no in the properties of the estate. It’s only
interest is to be paid. He cannot claim part owner of the
property.. His only interest is with respect to the debt.
An action for the declaration of nullity, if that is the main action,
it will not prosper but, if you file a judicial settlement then the
validity of the extra judicial settlement can actually be resolved
by the settlement court. The settlement court can determine
whether or not -----
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
The main action that the defrauded creditor can file is judicial
settlement and the settlement court can be asked to declare
the extra judicial settlement null and void. That is within the
limited jurisdiction of the settlement court.
Pay attention in all cases that are assigned to your to the
nature of the action, nature of the proceeding and the kind of
procedure taken by the court as well as the procedural steps
and remedies taken by the parties. Only then will you be
further enlighted on how the rules on special proceedings will
apply in certain case.
(MEC/Dec 11,2018)
JUDICIAL SETTLEMENT OF THE ESTATE
Which court has court jurisdiction over the settlement of
the estate?
It depends upon the value of the estate of the decedent - all the
properties and interest left by the deceased person
• MTC - gross value of the estate does not exceed P300,
000, or P400, 000 in Metro Manila
• RTC - gross value of the estate exceeds the above
amounts
What kind of jurisdiction is exercised by the settlement
court?
It has limited jurisdiction. Meaning it cannot go beyond the
issues of settlement proceedings
Examples of Court’s Limited Jurisdiction:
• Extrinsic validity of a will and the testamentary capacity of
the testator, if there is a will
• If there is no will and there is a petition for letters of
administration, the court can determine if the petitioner is
viable to be an administrator
• determination of the inventory and decide whether or not
the properties are conjugal
• issue of ownership however the ruling of the settlement
court is merely provisional and may be brought up in a
separate proceeding
• As a general rule, questions of ownership cannot be
passed upon. They are limited to the inventory of the
estate - what are to be included and what are to be
excluded
• Thus, court cannot also determine whether properties are
conjugal or separate property but as an exception to the
general rule, it may pass upon and decide provisionally
Can the Settlement Court determine properties as conjugal
or separate property?
BERNARDO VS CA
YES.
FACTS: Heirs claim that the deceased could not validly
dispose of the subject property in the will because it is conjugal
property
HELD:
General rule: questions of title to property cannot be passed
upon in testate or intestate proceedings
Exception: where one of the parties prays merely for the
inclusion or exclusion from the inventory of the property, in
which case the probate court may pass provisionally upon the
question without prejudice to its final determination in a
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separate action, however, when the parties are all heirs of the
deceased, it is optional on them to submit to the probate court
a question as to title to property, and when so submitted, said
probate court may definitely pass judgment thereon.
The matter in controversy is the question of ownership of
certain of the properties involved — whether they belong to the
conjugal partnership or to the husband exclusively.
Did the settlement court exercise jurisdiction in the
determination of whether the properties subject is
conjugal or separate?
LEDESMA V INTESTATE ESTATE OF CIPRIANO PEDROSA
FACTS: Petitioner’s marriage to respondent was declared null
& void. Disagreement ensued in the partition. What was
litigated is the dissolution of the partnership but respondent
died.
ISSUE: Effects of death of the spouse after separation but
before partition
HELD: On the finality of the judgment decreeing the spouses'
legal separation as of January 4, 1973, the remaining issue for
Our resolution is the final disposition of their conjugal
partnership of gains which partnership, by reason of the final
decree, had been automatically dissolved. The law (Article 106,
107 of the Civil Code) clearly spells out the effects of a final
decree of legal separation on the conjugal property. The death
on November 30, 1979 of herein petitioner who was declared
the guilty spouse by the trial court, before the liquidation of the
conjugal property is effected, poses a new problem which can
be resolved simply by the application of the rules on intestate
succession with respect to the properties of the deceased
petitioner. Thus, the rules on dissolution and liquidation of the
conjugal partnership of gains under the aforecited provisions of
the Civil Code would be applied effective January 4,
1973 when the decree of legal separation became final.
Upon the liquidation and distribution conformably with the law
governing the effects of the final decree of legal separation, the
law on intestate succession should take over in the disposition
of whatever remaining properties have been allocated to
petitioner. This procedure involves details which properly
pertain to the lower court. The properties that may be allocated
to the deceased petitioner by virtue of the liquidation of the
conjugal assets, shall be distributed in accordance with the
laws of intestate succession in Special Proceedings No. 134.
Does the settlement court have jurisdiction to determine
the character of property?
No. Because there is a final decree on the legal separation.
The law in Article 106 and 107 Civil Code is clear on the matter
the effects of the final decree on legal separation on the
conjugal property.
Which of the 2 proceedings will have a determination of
whether or not a property is conjugal or separate? Is it in
the settlement of the probate court or in the nullity court?
Nullity court.
Why? Considering that the same properties are also
subject to the probate court.
The nullity court has already acquired jurisdiction over the
case.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
In the case of Pereira vs CA, did the settlement court had
jurisdiction to resolve the issues raised before it?
No. It would be better left to the probate court before which the
administration proceedings were pending. Inclusion or
exclusion of properties fall within the jurisdiction of the probate
court.
What is the nature of the ruling when the settlement court
decides on the inclusion or exclusion of properties?
It is only provisional and not conclusive and is subject to the
final decision in a separate action which may institute by the
parties.
Would there be res judicata in so far such issue is
concerned?
No. In the case of Jimenez, Res judicata will not apply since
any pronouncement of the said court is only conclusive but
may be attacked in a separate proceeding and the court has
only limited jurisdiction.
If during the pendency of the settlement proceeding, a
separate case is filed involving issue of ownership will
that not constitute forum shopping?
No. Since the question of ownership is an extraneous matter
which the probate court cannot resolve with finality.
This is an exception to the forum shopping rule because
the determination of the settlement court is provisional. It
cannot be considered final, res judicata and conclusive on
the issue of ownership.
So, whenever there is a determination of inclusion or
exclusion of properties of the estate, that necessary
involves determination provisionally of the ownership of
the property. Any objection that any party may have
regarding the ruling of the settlement court on the
exclusion or inclusion of properties, then that issue can be
ventilated on a separate case. That will not be barred by
res judicata, the prohibition on forum shopping because
the finding of the court is merely provisional. Therefore,
the issues on ownership involving the inclusion or
exclusion of properties can be raised in a separate case
and the parties there can be bound by the judgment. The
court that resolved that issue with finality and conclusivity
would be a court of general jurisdiction.
What is the extent of the power of the settlement court
with respect to the contracts entered into by the decedent
during his lifetime?
PIO BARRETO REALTY DEVELOPMENT INC VS CA
FACTS: There was an existing contract (contract to sell)
between the decedent and a 3rd person. Then, the 3rd person
entered into another contract with the administrator.
The realty corporation is asking the court to exclude the
properties sold by Drepin (the deceased) and such decision be
final.
ISSUES:
(1) Can the Court of Appeals act upon the issue of exclusion of
properties in the estate when it is not passed upon by the
court a quo? NO
(2) Can the probate court order the execution of the deed of
sale with Pio Barreto?
HELD:
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As to the first issue:
No. The question of whether the properties sold by Drepin to
Petitioner should be excluded from the probate proceedings
below, cannot be determined with finality by the Supreme
Court in this case, because in this petition We are merely
reviewing the acts of the respondent CFI as a probate court.
Any ruling by the probate court to include those properties "is
only provisional in character and is without prejudice to a
judgment in a separate action on the issue of title or
ownership"
Consequently, in reviewing the exercise of such limited probate
jurisdiction, We cannot order an unqualified and final exclusion
of the properties involved, as prayed for; to do so would
expand the probate court's jurisdiction beyond the perimeters
set by law and jurisprudence. It is fitting and proper that this
issue be ventilated and finally resolved in the already instituted
Civil Case No. 41287, even as We hold that respondent court's
act of not excluding the lots involved did not constitute grave
abuse of discretion. In view of this limitation, We need not
resolve the issue of whether there was novation of the Deed of
Sale with Mortgage, or not.
As to the Second Issue:
Yes. Actions of the probate court, in the case at bar, do not
refer to the adjudication of rights under the contract entered
into by the deceased during his lifetime. It is to be noted that
the dealings of the respondent with the court arose out of the
latter's bid to sell property under its authority to sell, mortgage
or otherwise encumber property of the estate to pay or settle
against the estate.
Thus, by estoppel, respondent bound himself under an
agreement with the court separate and distinct from that which
he had with the decedent. In rescinding such contract, the
court merely seeks to enforce its right to put an end to an
agreement which had ceased to be a working proposition.
Surely, this is well within the power of the probate court. We
cannot allow an absurd situation to arise where the Drepin
estate will never be settled and liquidated because even if
Moslares cannot pay the agreed purchase price of the Drepin
lands, still the probate court can no longer sell the lands to
other prospective buyers. It is also to be emphasized that it
was not respondent's contract of sale with decedent that had
been invalidated but rather the administrator's authority to sell
to respondent. Moreover, the respondent is not without remedy
if truly his claim of ownership is proper and meritorious. Since
the probate court has no jurisdiction over the question of title
and ownership of the properties, the respondents may bring a
separate action if they wish to question the petitioner's titles
and ownership.
Ma’am: So, the power exercised by the settlement court is
the rescission of the contract that was previously
approved by it. Necessarily, when it approves a contract, it
can also rescind a contract that falls within its limited
jurisdiction.
When may the settlement court not entertain even
provisionally any issue of ownership?
In Baybayan, how come the settlement court did not
entertain the issue of ownership here (even though it can
provisionally)?
BAYBAYAN VS AQUINO
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
FACTS: Controversy arose when after Special Proceedings
and execution was ordered for heirs to deliver subject property,
the other heirs opposed. Petitioners then filed a complaint for
quieting of title plus damages.
This involves a summary settlement of estate where the gross
estate was valued – did not exceed 6,000. It was filed in 1960.
The decision was made in 1987. It took 27 years to resolve the
case but the ruling was simple.
ISSUE: WON the determination of ownership of property by
probate court final in nature? NO
The findings of the respondent Judge as to the ownership of
Lot E after the hearing conducted in Spec. Proc. No. 24-R do
not justify the order to amend the complaint since the
determination of the ownership of the said lot by the
respondent Judge presiding over a court exercising probate
jurisdiction is not final or ultimate in nature and is without
prejudice to the right of an interested party to raise the question
of ownership in a proper action.
It is a well-settled rule in this jurisdiction, sanctioned and
reiterated in a long line of decisions, that "when questions arise
as to ownership of property alleged to be a part of the estate of
a deceased person, but claimed by some other person to be
his property, not by virtue of any right of inheritance from the
deceased, but by title adverse to that of the deceased and his
estate, such questions cannot be determined in the courts of
administrative proceedings. The Court of First Instance, acting,
as a probate court, has no jurisdiction to adjudicate such
contentions, which must be submitted to the Court of First
Instance in the exercise of its general jurisdiction as a court of
first instance."
Can the court rule on the issue if the claim of ownership is
by title adverse to the decedent other than by inheritance?
Where should the issue of ownership be resolved?
Court of First Instance in the exercise of its general jurisdiction
as a CFI.
What proceeding was filed on this case regarding the
issue of ownership? Was there any?
The adverse claimants filed a quieting of title.
Ma’am: So there was already a separate case filed by the
persons claiming ownership over the property.
The issue now would be, which court has jurisdiction to
resolve the issue of ownership? Is it the settlement court
or the quieting of title court?
Obviously, the quieting of title court. The settlement
cannot resolve the issue of ownership because the
persons claiming the ownership are not heirs. They are
not parties to the settlement proceedings. Their claim is
not based on any right ot inherit but on some other
grounds.
What confused the issues here is that there is only one
court that heard the settlement case and quieting of title
case. Only one court was assigned to hear these two
cases. In one proceeding, the court made an order
directing the parties to amend the complaint in another
proceeding. Pati ang court nalito.
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So in the settlement proceeding, the settlement court
issued an order directing the plaintiffs in the quieting of
title case to amend the complaint. So the court became
confused, there is now an encroachment of jurisdiction
from a court of general jurisdiction to that of court of
limited jurisdiction. Nagkalabo2 na ang kanyang order.
That’s what it made the case complicated.
Was there grave abuse of discretion on the part of the
court here?
YES. xxx
Ma’am: So it can be the two proceedings involving the
same properties but different parties can be assigned in
one court and the court can get confused also and issue
orders and rulings with respect to another rulings. That
should not have happened if the judge only stopped
making rulings with respect to one case. Especially when
the court was exercising different kinds of jurisdiction,
one limited jurisdiction and another of general jurisdiction.
Thus, the settlement court cannot entertain the issue of
ownership even provisionally when the parties are not
brought under its jurisdiction.
In Lachenal, can the court entertain the issue on
ownership even provisionally?
LACHENAL VS SALAS
rd
No. Because it involves 3 person who are the lessees of the
property, spouses Legronio.
The question of title to a property should be determined in a
separate action before the Court of First Instance , where it
affects the lessee who is the decedent's son-in-law, and who
although married to his daughter or compulsory heir, is
nevertheless a third person with respect to the estate. The
administrator may not push him against his will, by motion, into
the administrative proceedings. The general rule is that
question as to title to property cannot be passed upon in
testate or intestate proceeding but should be ventilated in a
separate action.
Ma’am:
GR: A settlement court may entertain issues of ownership
provisionally provided that the parties are within its
jurisdiction ergo, if the resolution of the issue would
rd
require the presence of 3 parties not within the
jurisdiction of the court then the court cannot entertain the
issue of ownership and cannot make a ruling thereon even
provisionally.
What is the (is there an) exception to the rule that the court
cannot entertain issues of ownership when strangers or
rd
3 persons (non-heirs) are involved?
xxx
In Bernardo vs CA, the court made a pronouncement that
justified the settlement court in ruling of the issue of
ownership despite the fact that some of the parties are not
rd
heirs; despite the fact that there are 3 parties involved.
BERNARDO VS CA
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
FACTS: Heirs claim that the deceased could not validly
dispose of the subject property in the will because it is conjugal
property.
ISSUE: Can the Settlement Court Determine properties as
conjugal or separate property?
HELD: While as a general rule, questions of title to property
cannot be passed upon in testate or intestate proceedings,
except where one of the parties prays merely for the inclusion
or exclusion from the inventory of the property, in which case
the probate court may pass provisionally upon the question
without prejudice to its final determination in a separate action,
however, when the parties are all heirs of the deceased, it is
optional on them to submit to the probate court a question as to
title to property, and when so submitted, said probate court
may definitely pass judgment thereon.
In the case now before us, the matter in controversy is the
question of ownership of certain of the properties involved —
whether they belong to the conjugal partnership or to the
husband exclusively.
This is a matter properly within the jurisdiction of the probate
court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the decedent
which is to be distributed among his heirs who are all parties to
the proceedings, including, of course, the widow, now
represented, because of her death, by her heirs who have
been substituted upon petition of the executor himself and who
have appeared voluntarily.
There are no third parties whose rights may be affected. It
is true that the heirs of the deceased widow are not heirs
of the testator-husband, but the widow is, in addition to
her own right to the conjugal property. And it is this right
that is being sought to be enforced by her substitutes.
Therefore, the claim that is being asserted is one
belonging to an heir to the testator and, consequently, it
complies with the requirement of the exception that the
parties interested (the petitioners and the widow,
represented by respondents) are all heirs claiming title
under the testator.
Ma’am: In Bernardo vs CA, it involves a claim that is
related to the right to inherit. So the court can still
entertain it despite the fact that the ones asserting the
issue are technically not the heirs of the testator but are
considered to be representatives of the heirs of the
testator. In that sense, the issue of ownership is allowed
and the settlement court can actually exercise jurisdiction
over the issue of ownership.
rd
In Baybayan vs Aquino, it will give an instance where 3
persons can actually submit the issue of ownership to the
settlement court and it can rule thereon. That will require
rd
the 3 persons to submitting themselves in the
jurisdiction of the settlement court.
rd
How did the 3 parties submit to the jurisdiction of the
settlement court?
BAYBAYAN VS AQUINO
FACTS: Controversy arose when after Special Proceedings
and execution was ordered for heirs to deliver subject property,
the other heirs opposed. Petitioners then filed a complaint for
quieting of title plus damages.
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HELD: The findings of the respondent Judge as to the
ownership of Lot E after the hearing conducted in Spec. Proc.
No. 24-R do not justify the order to amend the complaint since
the determination of the ownership of the said lot by the
respondent Judge presiding over a court exercising probate
jurisdiction is not final or ultimate in nature and is without
prejudice to the right of an interested party to raise the question
of ownership in a proper action.
It is a well-settled rule in this jurisdiction, sanctioned and
reiterated in a long line of decisions, that "when questions arise
as to ownership of property alleged to be a part of the estate of
a deceased person, but claimed by some other person to be
his property, not by virtue of any right of inheritance from the
deceased, but by title adverse to that of the deceased and his
estate, such questions cannot be determined in the courts of
administrative proceedings. The CFI, acting, as a probate
court, has no jurisdiction to adjudicate such contentions, which
must be submitted to the Court of First Instance in the exercise
of its general jurisdiction as a CFI."
Can the settlement court rule on the issue of paternity and
filiation?
GUY VS. CA
YES. IF THERE IS A CLAIM MADE BY AN
ACKNOWLEDGED NATURAL CHILD, as decided in one case,
the SC said that the court may validly consider the one alleging
his illegitimacy an interested party in the estate proceeding.
While the original action filed by private respondents was a
petition for letters of administration, the trial court is not
precluded from receiving evidence on private respondents'
filiation. Its jurisdiction extends to matters incidental and
collateral to the exercise of its recognized powers in handling
the settlement of the estate, including the determination of the
status of each heir.
Can the settlement court rule on the validity of the
marriage of the deceased? Is that within the limited
jurisdiction of the settlement court?
YES.
ENRICO VS HEIRS SPS; GARCIA VS BELEN
Ma’am: These cases will tell you that the limited
jurisdiction of the settlement court extends to making a
ruling on the validity of the marriage of the deceased
whose estate is subject is the settlement proceeding. And
that it is necessary because there is a need to determine
the successional rights of the heirs.
The exception is due to the fact that the determination of
the successional rights of the heirs would depend on the
declaration of nullity or validity of the marriage of the
deceased. Had it not been for that, then obviously the
settlement court exercising limited jurisdiction SHOULD
NOT rule on such issue but because of the successional
rights of the compulsory heirs would depend on that then
it would have to make a determination.
The determination will be CONCLUSIVE not provisional
because there is no other way that you can file a separate
case in the regular courts to have it ventilated because
under the Special Rules, you need either parties to file the
case but if one of the parties of marriage is dead, what’s
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
the point of having it declared null and void??? The
marriage is already extinguished by the death of the other
party. So, it’s impractical aside from the fact that it is
impossible. How you can sue a dead person? It is legal
impossibility.
If you are not a party the marriage, neither can you
rd
institute a petition to declare it null and void. 3 persons
cannot file such actions under the special rules.
So that basically ties the hand of the compulsory heirs to
question the validity of marriage during the lifetime of the
parties. They cannot. Aside from the fact that their right to
inherit is still inchoate.
So all of these issue on the validity of marriage of the
deceased will have to come out during the settlement after
he has died and the issue on how to settle the estate
arises.
The logical conclusion is there is no other court that can
entertain the issue except the settlement court. It falls
within its LIMITED JURISDICTION. Since instituting a
separate action becomes legally impossible, if follows
whatever determination weighed by the settlement court in
the validity or nullity of the marriage would have to bind
the parties. There can be no separate case to file in order
to have a separate ruling on that issue.
So include that among the issues that can be resolved in
the settlement court in the exercise of its limited
jurisdiction just as the court can rule on the issue of
paternity or filiation to determine the successional rights
of the legitimate and/or illegitimate children.
There is actually a decided case written by Sereno (2012)
that made the ruling of the settlement court completely
with respect to the issue of ownership and that a separate
case filed on the same issue was considered barred by
forum shopping. So it could go either way. Issue of
ownership instead of the settlement court taking a ruling
thereon provisionally, the ruling there was made
conclusive because all the parties are already within the
jurisdiction of the settlement court. So they could no
longer file a separate case because that would violate the
rule on forum shopping.
NOTE: The limited jurisdiction of the settlement court is
quite complicated so you must be able to look at the
nuances of the rulings of the SC on that matter and be
able to understand when the general rule and exceptions
applies.
rd
Lachenal and Baybayan will tell you, insofar as 3 persons
are involved, the settlement court should NOT assume
jurisdiction over the issue of ownership. BUT if all the
parties are within the jurisdiction of the court and all heirs
agree to the ruling of the court then the settlement court
can rule on the issue of ownership. That ruling can be
conclusive not merely provisional (as written by Sereno).
POWERS OF THE SETTLEMENT COURT
RULE 73, SECTION 3. PROCESS. — In the exercise of
probate jurisdiction, Courts of First Instance may issue
warrants and process necessary to compel the attendance of
witnesses or to carry into effect theirs orders and judgments,
and all other powers granted them by law. If a person does not
perform an order or judgment rendered by a court in the
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exercise of its probate jurisdiction, it may issue a warrant for
the apprehension and imprisonment of such person until he
performs such order or judgment, or is released.
Ma’am: The settlement court, just like any other ordinary
court has powers of compulsion or coercive power that
require compliance with this court. But take note, it can
readily issue arrest orders for failure to comply with that
order. No need for a separate petition for contempt. This is
worse than the contempt power. They cannot indirect
compel whenever it is a way of order, there has to be an
order or written charge, etc. before you can cite a person
in indirect contempt. But here whenever there is an order
of the settlement court that has not been complied, that
court issue an order of arrest to compel performance or
obedience of the order.
Venue
WHERE DO YOU FILE SETTLEMENT PROCEEDINGS?
RULE 73, SECTION 1. WHERE ESTATE OF DECEASED
PERSONS SETTLED. —
If the decedents is an INHABITANT OF THE PHILIPPINES at
the time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and his
estate settled, in the Court of First Instance in the province
in which he resides at the time of his death,
and if he is an INHABITANT OF A FOREIGN COUNTRY, the
Court of First Instance of any province in which he had
estate. The court first taking cognizance of the settlement of
the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested
in a suit or proceeding, except in an appeal from that court, in
the original case, or when the want of jurisdiction appears on
the record.
• INHABITANT OF THE PHILIPPINES AT THE TIME OF
HIS DEATH, WHETHER A CITIZEN OR AN ALIEN - RTC
in the province in which he resides at the time of his death
• INHABITANT OF A FOREIGN COUNTRY - Court of First
Instance of any province in which he had estate
When do you consider a decedent to be a RESIDENT
DECEDENT?
When an inhabitant, at the time of his death, died within the
Philippines, whether a citizen or an alien.
When do you consider a decedent to be a NON-RESIDENT
DECEDENT?
When a person dies outside the Philippines, whether a citizen
or an alien
Ma’am: What qualifies a decedent as resident or non-
resident would depend on the place where he died. If he
died in the Philippines, he is a resident decedent (whether
he is a Filipino or a foreigner), but if he died abroad he is a
non-resident decedent (whether he is a Filipino or a
foreigner). Take note of the place at the time of his death.
Look where he is when he died. Rule 73, Section 1 speaks
of an inhabitant (someone who stays in the place), it does
not mention of citizenship.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
For a non-resident decedent, what is only required for
settlement proceedings to be instituted here in the
Philippines, is when he have properties in the Philippines.
And the venue for the settlement proceeding would be in
the place where any of his properties are located.
So, if he has properties, scattered around the country,
then the first court that takes cognizance of that petition
will exclude the rest of the other courts in different
locations where his properties are. This is for a non-
resident citizen. So, it is up to the petitioner who will
choose where.
What is the rule if the decedent is a non-resident? Where
do you file the case?
If he is an inhabitant of a foreign country, the Court of First
Instance of any province in which he had estate. The court first
taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other
courts.
Why is the rule such that the court that takes cognizance
of the petition will exclude the other courts of places
where the other properties are located?
The purpose of the exclusionary rule is for the orderly
administration of the properties. So, regardless of the number
of properties, there is only one estate and there is only one
settlement proceeding.
Suppose that you don’t agree with the venue, you are
questioning the venue, but the settlement court does not
agree with you, Can you file an action for certiorari
questioning the validity of the order on the ground of
grave abuse of discretion on the part of the settlement
court?
No. It can only be made by on appeal.
Ma’am: So you have to wait until a final order is issued by
the settlement court, in which case, you can raise it on
appeal together with the issues you are raising regarding
the final order of the decision of the said court. So, no
certiorari can be filed with issues regarding with venue.
You have to raise that issue on appeal.
For a resident decedent, where will you file the settlement
case?
It is filed on the place where he is a resident.
What do you mean residence for purposes of determining
venue of settlement cases involving resident decedent?
For purposes of fixing venue under the Rules of Court, the
―residence of a person is his personal, actual or physical
habitation, or actual residence or place of abode, which may
not necessarily be his legal residence or domicile provided he
resides therein with continuity and consistency. San Luis vs San Luis
What is the best proof of residence?
Death Certificate.
What if there is none, what is the proof?
Resident Certificate, Marriage Contract
In Eusebio vs Eusebio, the decedent physically died in
Manila. Can the Settlement proceeding be made in Manila?
EUSEBIO VS EUSEBIO
No. The decedent therein, Andres Eusebio, passed away while
in the process of transferring his personal belongings to a
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house in Quezon City. He was then suffering from a heart
ailment and was advised by his doctor/son to purchase a
Quezon City residence, which was nearer to his doctor. While
he was able to acquire a house in Quezon City, Eusebio died
even before he could move therein. In said case, Eusebio
retained his domicile --- and hence, residence --- in San
Fernando, Pampanga.
The domicile of origin of the decedent was San Fernando,
Pampanga, where he resided for over seventy (70) years, the
presumption is that he retained such domicile, and, hence,
residence, in the absence of satisfactory proof to the contrary,
for it is well-settled that "a domicile once acquired is retained
until a new domicile is gained”.
It is well settled that "domicile is not commonly changed by
presence in a place merely for one's own health," even if
coupled with knowledge that one will never again be able, on
account of illness to return home."
Under the circumstances surrounding the case at bar, if Andres
Eusebio established another domicile, it must have been one
of choice, for which the following conditions are essential,
namely:
(1) capacity to choose and freedom of choice;
(2) physical presence at the place chosen; and
(3) intention to stay therein permanently.
Admittedly, the decedent was juridically capable of choosing a
domicile and had been in Quezon City several days prior to his
demise.
Ma’am: The death certificate was not presented here, such
would only be a factual evidence on the place of his death.
For the purpose of establishing his residence at the time
of his death, the death certificate would only show the
place of his death but not necessarily his residence.
For the purposes of establishing the residence of a
deceased, do you have to consider residence in the
concept of domicile?
SAN LUIS VS SAN LUIS
NO. The term ―resides connotes actual residence as
distinguished from ―legal residence or domicile. This term
―resides, like the terms ―residing and ―residence, is elastic
and should be interpreted in the light of the object or purpose
of the statute or rule in which it is employed.
In the application of venue statutes and rules – Section 1, Rule
73 of the Revised Rules of Court is of such nature – residence
rather than domicile is the significant factor.
In other words, ―resides should be viewed or understood in its
popular sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of abode. It
signifies physical presence in a place and actual stay thereat.
In this popular sense, the term means merely residence, that
is, personal residence, not legal residence or domicile
It is incorrect for petitioners to argue that ―residence, for
purposes of fixing the venue of the settlement of the estate of
Felicisimo, is synonymous with ―domicile. Needless to say,
there is a distinction between ―residence for purposes of
election laws and ―residence for purposes of fixing the venue
of actions.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
In election cases, ―residence and ―domicile are treated as
synonymous terms, that is, the fixed permanent residence to
which when absent, one has the intention of returning.
However, for purposes of fixing venue under the Rules of
Court, the ―residence of a person is his personal, actual or
physical habitation, or actual residence or place of abode,
which may not necessarily be his legal residence or domicile
provided he resides therein with continuity and consistency.
Hence, it is possible that a person may have his residence in
one place and domicile in another.
Maam: Domicile is a different concept with Residence in
so far a settlement proceeding is concerned.
In the case of Fule, residence is merely personal, physical,
actual habitation of a person BUT in the case of Jao it was
qualified.
What happened in this case?
JAO vs CA
In the case at bar, there is substantial proof that the decedents
have transferred to petitioner’s Quezon City residence.
Petitioner failed to sufficiently refute respondent’s assertion
that their elderly parents stayed in his house for some three to
four years before they died in the late 1980s.
Furthermore, the decedents’ respective death certificates state
that they were both residents of Quezon City at the time of their
demise. Significantly, it was petitioner himself who filled up his
late mother’s death certificate. To our mind, this unqualifiedly
shows that at that time, at least, petitioner recognized his
deceased mother’s residence to be Quezon City. Moreover,
petitioner failed to contest the entry in Ignacio’s death
certificate, accomplished a year earlier by respondent. The
recitals in the death certificates, which are admissible in
evidence, were thus properly considered and presumed to be
correct by the court a quo. We agree with the appellate court’s
observation that since the death certificates were
accomplished even before petitioner and respondent quarreled
over their inheritance, they may be relied upon to reflect the
true situation at the time of their parents’ death.
Is residence will be construed as permanent residence?
Ma’am: NO. It is not permanent residence that you are
looking at when you talk of residence at the time of death
for the purpose of filing the settlement proceeding. It is
not even domicile as contemplated in election laws. It is
actual, physical presence in the place. However, it is
qualified by continuity and consistency. So that rules out
instances where you are just a transient in a place. Thus,
there should be continuity and consistency in your stay in
addition to your actual, physical presence of the place.
Why was the death certificate considered a reliable
evidence in establishing the residence of the deceased?
Yes. Because there was a valid transfer of residence and it
was corroborated, substantiated by competent evidence that
would establish the residence of the deceased.
Ma’am: If you look at residence in actual, physical
habitation you should also consider how long they
actually, physically stayed in the place.
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The proof required here to establish residence will not
simply be physical presence of the place. Look at the
nature of the stay at the place where you have physical,
actual presence.
What makes Jao different from Eusebio?
In Eusebio, the decedent therein, Andres Eusebio, passed
away while in the process of transferring his personal
belongings to a house in Quezon City. He was then suffering
from a heart ailment and was advised by his doctor/son to
purchase a Quezon City residence, which was nearer to his
doctor. While he was able to acquire a house in Quezon City,
Eusebio died even before he could move therein. In said case,
we ruled that Eusebio retained his domicile --- and hence,
residence --- in San
Fernando, Pampanga. It cannot be said that Eusebio changed
his residence because, strictly speaking, his physical presence
in Quezon City was just temporary.
In the case at bar, there is substantial proof that the decedents
have transferred to petitioner’s Quezon City residence.
Petitioner failed to sufficiently refute respondent’s assertion
that their elderly parents stayed in his house for some three to
four years before they died in the late 1980s.
What if you are an American citizen, vacationing in the
Philippines but due to an accident, you died, where is the
venue of the settlement proceeding?
Ma’am: It depends.
If he has properties in the Philippines, THE COURT FIRST
TAKING COGNIZANCE OF THE SETTLEMENT OF THE
ESTATE OF A DECEDENT, SHALL EXERCISE
JURISDICTION TO THE EXCLUSION OF ALL OTHER
COURTS
But if there is none, you cannot file a settlement case here
in the Philippines. It should be done on the place of his
domicile. So, in the case there, he will be considered as a
nonresident decedent because he died outside of his
country.
NOTE that you can only file a settlement case when the 2
main elements concur.
1. There is a deceased and
2. There is an estate.
(AD, Jan 15, 2019)
PARTIES-IN-INTEREST
Rule 76, Section 1. Who may petition for the allowance 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
death of the testator, petition the court having jurisdiction to
have the will allowed, whether the same be in his possession
or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the court
for the allowance of his will.
Q: What kind of interest must a person have to be able to
participate in a settlement proceeding?
A: Material and direct, and not merely indirect or contingent.
An "interested person" has been defined as one who
would be benefited by the estate, such as an heir, or
one who has a claim against the estate, such as a
creditor. The interest must be material and direct, and
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
not merely indirect or contingent. (San Luis v. San
Luis)
Q: If a person is not an heir and is not a claimant, there is
no chance that he can participate in a settlement
proceeding?
Student: There is a chance, for as long as his interest is
material and direct, and not merely indirect or contingent.
Q: Can a common law spouse of a deceased participate in
a settlement proceeding involving the estate of the
deceased?
A: A common law spouse can still participate, because even if
he/she is a common law spouse, the law provides for the
protection of his/her interest in the property.
When the common law spouses acquired properties during
their cohabitation, it is presumed that those properties were
acquired through their joint efforts.
Q: So the common law spouse can participate as an heir?
A: No, ma’am. Not as an heir.
Q: As a claimant? In what capacity?
A: As a claimant, in his capacity as a co-owner of the
properties acquired during their cohabitation.
In the instant case, respondent would qualify as an
interested person who has a direct interest in the
estate of Felicisimo by virtue of their cohabitation, the
existence of which was not denied by petitioners.
If she proves the validity of the divorce and
Felicisimo’s capacity to remarry, but fails to prove that
her marriage with him was validly performed under
the laws of the U.S.A., then she may be considered
as a co-owner under Article 144 of the Civil Code.
This provision governs the property relations between
parties who live together as husband and wife without
the benefit of marriage, or their marriage is void from
the beginning. It provides that the property acquired
by either or both of them through their work or
industry or their wages and salaries shall be governed
by the rules on co-ownership.
In a co-ownership, it is not necessary that the property
be acquired through their joint labor, efforts and
industry. Any property acquired during the union is
prima facie presumed to have been obtained through
their joint efforts. Hence, the portions belonging to the
co-owners shall be presumed equal, unless the
contrary is proven. (San Luis v. San Luis)
Q: What about a “contingent claimant”? Can he participate
in a settlement proceeding? (There was no sure answer in
the Q&A.)
A (based on old tsn): In the case of Hilado, Hilado
tries to assert himself as a creditor (not based on a
contract). He claims he is a creditor based on a tort,
which is pending in a separate case.
If in that case, it be proven that the estate is liable,
then his claim as a creditor would have been proper.
However, in this case, the torts case was still pending
and his claim is still contingent on the outcome of that
separate case. He still has to await the outcome of
that case before he can claim that he is a creditor. His
claim was based on a judgment award yet to be
rendered.
Since there is no judgment yet, he is still a contingent
claimant who may not intervene or participate in the
settlement proceeding.
However, the contingent claimant may later on be
allowed to seek certain prayers or reliefs from the
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intestate court not explicitly provided for under the
Rules, if the prayer or relief sought is necessary to
protect their interest in the estate, and there is no
other modality under the Rules by which such interest
can be protected.
The case would be different if he were a creditor
based on a contract. In that case, his interest is
material and direct and thus he may be allowed to
participate.
ATTY: The Hilado case is a complicated one.
The question is: Can a contingent claimant be a party in
interest that can participate in a settlement proceeding? The
ruling there is that they cannot be real parties in interest.
How do you reconcile that with the rule that contingent
claimants may file claims against the estate? Because there is
such a provision in the Rules of Court that allows such
contingent claimant to file a claim. When we reach Rule 86 you
will know the answer. You will understand fully the Hilado case
when we reach that.
Q: What about an illegitimate child? Can an illegitimate
child participate in a settlement proceeding by merely
alleging the fact of illegitimacy without showing prior
acknowledgement of paternity and filiation by the
deceased?
A: An illegitimate child may become a party in the settlement
proceeding even without proof. Mere allegation would already
suffice for them to establish his interest in the proceeding.
(Tayag case)
Q: In the case of San Juan vs. Cruz, can the heirs of a
devisee be proceeded as interested parties in the estate of
the deceased testator? Yes.
Q: Would there still be a need for the appointment of the
heirs as executor or administrator of the deceased devisee
to be able to participate? No.
Rule 3, Section 16 of the Rules of Court. Death of
party; duty of counsel.--- The second paragraph of the
rule is plain and explicit: the heirs may be allowed to
be substituted for the deceased without requiring the
appointment of an administrator or executor.
However, if within the specified period a legal
representative fails to appear, the court may order the
opposing counsel, within a specified period, to
process the appointment of an administrator or
executor who shall immediately appear for the estate
of the deceased. xxx
The heirs of the estate of Oscar Casa(devisee) do not
need to first secure the appointment of an
administrator of his estate, because from the very
moment of his death, they stepped into his shoes and
acquired his rights as devisee/legatee of the
deceased Loreto San Juan(testator).
Thus, a prior appointment of an administrator or
executor of the estate of Oscar Casa is not necessary
for his heirs to acquire legal capacity to be substituted
as representatives of the estate. Said heirs may
designate one or some of them as their representative
before the trial court. (San Juan v. Cruz)
SUMMARY SETTLEMENT
Rule 74, Section 2. Summary settlement of estate of small
value. — Whenever the gross value of the estate of a
deceased person, whether he died testate or intestate, does
not exceed ten thousand pesos, and that fact is made to
appear to the Court of First Instance having jurisdiction of the
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
estate by the petition of an interested person and upon
hearing, which shall be held not less than one (1) month nor
more than three (3) months from the date of the last publication
of a notice which shall be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the
province, and after such other notice to interest persons as the
court may direct, the court may proceed summarily, without the
appointment of an executor or administrator, and without delay,
to grant, if proper, allowance of the will, if any there be, to
determine who are the persons legally entitled to participate in
the estate, and to apportion and divide it among them after the
payment of such debts of the estate as the court shall then find
to be due; and such persons, in their own right, if they are of
lawful age and legal capacity, or by their guardians or trustees
legally appointed and qualified, if otherwise, shall thereupon be
entitled to receive and enter into the possession of the portions
of the estate so awarded to them respectively. The court shall
make such order as may be just respecting the costs of the
proceedings, and all orders and judgments made or rendered
in the course thereof shall be recorded in the office of the clerk,
and the order of partition or award, if it involves real estate,
shall be recorded in the proper register's office.
Q: When will the summary settlement of the estate be
applied?
A: The requisites are:
1. Gross value of the estate of the deceased person,
whether he died testate or intestate, does not exceed
ten thousand pesos;
2. That fact is made to appear to the Court of First
Instance having jurisdiction of the estate by the
petition of an interested person; and
3. Upon hearing, which shall be held not less than one
(1) month nor more than three (3) months from the
date of the last publication of a notice which shall be
published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the
province.
Q: Can there be judicial summary settlement of the estate
if there are debts? Yes.
Q: If there are debts and there is a last will and testament,
how will the court proceed in settling the estate? What will
be the procedure?
A: If there is a will, it must first be probated by filing a petition.
Then, there must be filing of the bond before distributing the
residue of the estate.
Rule 74, Section 3. Bond to be filed by distributees. — The
court, before allowing a partition in accordance with the
provisions of the preceding section, my require the
distributees, if property other than real is to be distributed, to
file a bond in an amount to be fixed by court, conditioned for
the payment of any just claim which may be filed under the
next succeeding section.
Q: After filing the petition, what happens next?
A: There must be notice of summary settlement of the estate
which shall be published once a week for 3 consecutive weeks
in a newspaper of general circulation in the province
Q: When will the hearing be scheduled?
A: The hearing shall be held not less than 1 month nor more
than 3 months from the date of last publication of notice.
Q: What will happen during the summary hearing?
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A: The parties will give evidence for/against the petition filed.
Evidences of their claims.
Q: After the hearing, what happens next?
A: The court will grant, if proper, allowance of the will, if any
there be, to determine who are the persons legally entitled to
participate in the estate, and to apportion and divide it among
them after the payment of such debts of the estate as the court
shall then find to be due; and such persons, in their own right, if
they are of lawful age and legal capacity, or by their guardians
or trustees legally appointed and qualified, if otherwise, shall
thereupon be entitled to receive and enter into the possession
of the portions of the estate so awarded to them respectively.
Q: What happens next?
A: The court shall make such order as may be just respecting
the costs of the proceedings, and all orders and judgments
made or rendered in the course thereof shall be recorded in the
office of the clerk, and the order of partition or award, if it
involves real estate, shall be recorded in the proper register's
office.
REGULAR SETTLEMENT PROCEEDINGS
Q: What are the regular settlement proceedings?
A: Testate and Intestate.
Q: What is the venue for Testate Proceedings?
Rule 73, Section 1. Where estate of deceased persons
settled. — If the decedents is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his will shall
be proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in which
he resides at the time of his death, and if he is an inhabitant of
a foreign country, the Court of First Instance of any province in
which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall
not be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of
jurisdiction appears on the record.
A: If the decedent is an inhabitant of the PH at the time of his
death, whether a citizen or an alien, his will shall be proved in
the Court of First Instance in the province in which he resides
at the time of his death.
If he is an inhabitant of a foreign country, then the Court of First
Instance of any province which he had estate.
Q: What happened in the case of Uriarte vs CFI of Negros?
Facts: Uriarte filed with the CFI of Negros a petition for the
settlement of the estate of the late Don Juan Uriarte y Goite
alleging that as the natural son of the decedent, he is the sole
heir. (Intestate)
However, this was opposed on the ground that there was an
existing last will and testament of the decedent which was
executed in Spain. The one who was in possession of the last
will and testament also commenced a special proceeding in the
Manila Court for the probate of said last will and testament.
(Note: The intestate proceeding was filed first.)
The CFI of Negros dismissed the petition.
Q: Which proceeding should prevail?
Ruling:
In accordance with settled jurisprudence in this jurisdiction,
testate proceedings, for the settlement of the estate of a
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
deceased person take precedence over intestate proceedings.
Thus it has been held repeatedly that, if in the course of
intestate proceedings pending before a court of first instance it
is found that the decedent had left a last will, proceedings for
the probate of the latter should replace the intestate
proceedings even if at that stage an administrator had already
been appointed, the latter being required to render final
account and turn over the estate in his possession to the
executor subsequently appointed.
This, however, is understood to be without prejudice that
should the alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy. As already adverted
to, this is a clear indication that proceedings for the probate of
a will enjoy priority over intestate proceedings.
Q: But, was the CFI Negros correct in dismissing the Intestate
Proceeding?
A: No. It is not in accord with public policy and the orderly and
inexpensive administration of justice to unnecessarily multiply
litigation, especially if several courts would be involved. This, in
effect, was the result of the submission of the will aforesaid to
the Manila Court.
In the second place, when respondent filed an opposition to
Uriarte’s petition for letters of administration, he had already
informed the Negros Court that the deceased had left a will in
Spain. Therefore, he knew before filing the petition for probate
in Manila that there was already a special proceeding pending
in the Negros Court.
Q: Which is the proper venue here? Why?
A: It is the CFI of Negros. It is because Rule 73, Section 1
provides that the FIRST COURT that took cognizance of the
settlement of the estate of the decedent shall exercise
jurisdiction to the exclusion of all other courts.
Q: Nevertheless, is the proceeding filed in Manila allowed?
Is it a jurisdictional defect?
A: It is well settled in this jurisdiction that wrong venue is
merely a waiveable procedural defect, and, in the light of the
circumstances obtaining in the instant case, we are of the
opinion, and so hold, that petitioner has waived the right to
raise such objection or is precluded from doing so by laches.
It must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was
not the proper venue therefor, if the net result would be to have
the same proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the
objection against said proceedings is raised too late.
Summary:
ATTY: Here, in this case of Uriarte, as between a testate and
intestate proceeding, when the decedent died testate, the
testate proceeding prevails because the last will and testament
has to be probated.
However, considering that the intestate proceeding has been
first commenced, the probate of the will of the decedent should
have been submitted in that SAME PROCEEDING in Negros,
so that the intestate proceeding can simply be converted into a
testate proceeding upon presentation of the last will and
testament. That should have been the correct procedure.
The filing a separate case in Manila is defective considering
there is already a pending case. The venue was improperly
laid, there should have been an objection of the venue laid (by
Uriarte). However, here, there was no objection, so the
improper venue was deemed waived.
But in cases of intestate proceedings having been commenced
first and a will later on surfaces, the proper procedure there is
to submit the will in the same intestate court, and that intestate
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proceeding will just be converted into a testate proceeding in
order to avoid multiplicity of suits.
PROBATE OF WILL
Q: What is the nature of the probate of the will? Can an
heir opt not to have the will probated? Can they just hide
it?
A: No, ma’am. It is mandatory.
Rule 75, Section 1. Allowance necessary. Conclusive as to
execution. — No will shall pass either real or personal estate
unless it is proved and allowed in the proper court. Subject to
the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
Q: Who may question/complain if the heirs will ignore the
will?
A: It may be questioned by the legatees/devisees named in the
will.
ATTY: if the will is a notarial will, the chances are the existence
of the will cannot be hidden. But if it is a holographic will,
there’s a bigger likelihood that it can be forgotten especially if
there is no person given custody of that holographic will. Or, if
a person is unscrupulous enough, he might simply ignore it.
If you want to give effect to the will, the will has to undergo
probate. There is no other way to follow the terms and
conditions of the will but to undergo probate. The probate of
the will is mandatory.
Q: What is the scope of inquiry in probate of a will?
A: It is limited to the extrinsic validity of the will, that is, the due
execution, the testatrix’s testamentary capacity and the
compliance with the requisites or solemnities by law.
Q: Can the probate court also look into the intrinsic
validity of the will?
A: Generally, the court cannot look into the intrinsic validity of
the will. However, there are exceptions.
In the case of Nuguid vs. Nuguid, there was an issue on
preterition. The court here allowed the determination of the
intrinsic validity of the will.
“If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears
in the record, in the event of probate or if the court
rejects the will, probability exists that the case will
come up once again before us on the same issue of
the intrinsic validity or nullity of the will. Result: waste
of time, effort, expense, plus added anxiety. These
are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of
the validity of the provisions of the will in
question. After all, there exists a justiciable
controversy crying for solution.” (Nuguid v. Nuguid)
If on the face of the will, it is intrinsically void.
Q: In the case of Balanay vs Martinez, was there also
preterition?
A: Initially, there was the issue of preterition of the husband,
although a husband cannot be preterited.
Here, the intrinsic validity of the will was considered by the
Supreme Court. It held that the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal
validity had been established. The probate of a will might
become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Q: In the case of Nepomuceno vs CA?
A: The court also considered the intrinsic validity of the will. In
this case, the testator left a will wherein he made testamentary
dispositions in favour of his mistress.
The probate court rendered a Decision making the
testamentary dispositions in favour of the mistress VOID.
The SC upheld the decision of the probate court. It ruled that
although, as a general court, the probate court is only limited to
the determination of the extrinsic validity of the will, this rule is
not inflexible and absolute. Given exceptional circumstances,
the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the Will.
Q: Was the will here voided in its entirety?
A: No, it was not voided in its entirety. Only the provision in
favour of the mistress was VOID. A mistress cannot inherit; a
common law spouse may not inherit.
Q: WHAT THEN WOULD BE THE MAIN CONDITION FOR
THE PROBATE COURT TO DETERMINE THE INTRINSIC
VALIDITY OF THE WILL IN A PROBATE PROCEEDING?
What is common in all these 3 cases?
A: The court may look beyond if on the face of the will, the
testamentary dispositions are void, and if practical
considerations demand that the intrinsic validity of the will
should be passed upon, the court should meet the issue.
ATTY: So, you have to look at the will if on its face it is already
void, like in the case of preterition. Or, there are dispositions
there that are apparently questionable, like a disposition in
favour of a mistress. Then the court can proceed to rule on the
intrinsic validity of the will or provisions thereof in order to
expedite proceedings and not waste time and effort.
Like in the case of preterition, the entire will is voided. So it will
be useless to go through the entire process of probating a will if
at the end it will not be given effect due to the nullity of the will
because of preterition.
BUT, generally, a probate of the Will will only involve the
examination of the extrinsic validity of the will: the formalities,
the authenticity of the will, the validity of the signatures and the
determination of the soundness of the mind of the testator.
Once those are established, the will can pass probate and can
be given effect.
What good can it do if you go through the whole
process/motion of authenticating the will if on its face it is void?
So to save time and effort, might as well go direct to the
intrinsic validity of the will and make a declaration whether or
not it is valid, and if it is not valid, convert the proceeding into
an intestate proceeding.
SUBJECT OF PROBATE
Q: What are the subjects of a probate proceeding?
A: To determine the extrinsic validity of the will, such as
whether the testator has testamentary capacity, whether there
was compliance of the solemnities of the will.
Q: What can be probated?
A: A will, codicil and disinheritance.
Q: What happened in the case of Seangio vs. Reyes?
Facts: Private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio.
Petitioners opposed the petition on the ground that Seangio left
a holographic will (KASULATAN SA PAG-AALIS NG MANA),
dated September 20, 1995, disinheriting one of the private
respondents Alfredo Seangio for maltreatment.
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Issue: Whether said document may be considered as a
holographic will and thus should be subject to probate. YES.
Ruling:
Segundo’s document, although it may initially come across as
a mere disinheritance instrument, conforms to the formalities of
a holographic will prescribed by law. It is written, dated and
signed by the hand of Segundo himself. An intent to
dispose mortis causa can be clearly deduced from the terms of
the instrument, and while it does not make an affirmative
disposition of the latter’s property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the
testator Segundo in favor of those who would succeed in the
absence of Alfredo.
Considering that the questioned document is Segundo’s
holographic will, and that the law favors testacy over intestacy,
the probate of the will cannot be dispensed with.
ATTY: A disinheritance likewise undergoes probate. It is
treated like a will.
Q: Can a will executed abroad, a foreign will, by a person
residing abroad be probated for the first time here in the
Philippines?
A: Yes.
Q: Is it required that it be probated abroad before it can be
probated here in the Philippines?
A: No. It can be probated in the PH for the first time as long as
the testator have properties located here in the Philippines.
ATTY: So, the procedure for reprobate of wills under Rule 77 is
not the only means/procedure to probate a foreign will
executed by a foreigner abroad. It can still be probated for the
first time under Rule 76 even if it has not yet undergone
probate abroad. That is the ruling in the case of Palaganas vs.
Palaganas.
But our laws do not prohibit the probate of wills
executed by foreigners abroad although the same
have not as yet been probated and allowed in the
countries of their execution. A foreign will can be
given legal effects in our jurisdiction. Article 816 of the
Civil Code states that the will of an alien who is
abroad produces effect in the Philippines if made in
accordance with the formalities prescribed by the law
of the place where he resides, or according to the
formalities observed in his country.
In this connection, Section 1, Rule 73 of the 1997
Rules of Civil Procedure provides that if the decedent
is an inhabitant of a foreign country, the RTC of the
province where he has an estate may take
cognizance of the settlement of such estate. Sections
1 and 2 of Rule 76 further state that the executor,
devisee, or legatee named in the will, or any other
person interested in the estate, may, at any time after
the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same
be in his possession or not, or is lost or destroyed.
(Palaganas v. Palaganas)
EFFECT OF PROBATE
Rule 75, Section 1. Allowance necessary. Conclusive as to
execution. — No will shall pass either real or personal estate
unless it is proved and allowed in the proper court. Subject to
the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
Q: What is the effect of probate of will?
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
A: Simply put, when a will has been probated, it has been
proven to be the will of the testator: that the signature therein is
his own and is not a forgery, that it has complied with the
formalities required by law, that there was no undue influence,
duress or fraud, and that the executor at the time of the
execution of the will was of sound mind.
Q: Can a will that has passed probate be annulled?
A: No. A probated will is conclusive as to its due execution.
There is now a conclusive finding as to the voluntariness of the
execution of the will.
After the finality of the allowance of the will, the issue as to the
voluntariness of its execution cannot be raised anymore.
Q: What is conclusive in a probated will?
A:
The 1939 decree of probate is conclusive as to the
due execution or formal validity of the will.
That means that the testator was of sound trial
disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or
undue influence; that the will was signed by him in the
presence of the required number of witnesses, and
that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned
in a subsequent proceeding, not even in a criminal
action for the forgery of the will.
After the finality of the allowance of a will, the issue as
to the voluntariness of its execution cannot be raised
anymore. (Gallanosa v. Arcangel)
ATTY: It is conclusive as to the extrinsic validity of the will.
When we say extrinsic, that covers the soundness of the mind,
the testamentary capacity of the testator, the genuineness of
the will, the genuineness of the signature of the testator. So,
that forecloses any action for forgery. That forecloses an action
for annulment of the will. Because the testamentary capacity of
the testator was already proven in the probate proceeding. You
can no longer seek the annulment of the will.
Once a will is probated, there can never be an action for
annulment of the will even if the signature is indeed forged, you
cannot file an action for forgery, because the probate of the will
is conclusive as to the extrinsic validity and genuineness of the
will (including the signatures found therein). That is the effect of
the probate of the will.
As to the dispositions and the intrinsic validity of the contents of
the will, that can still be raised as issues later. But insofar as
extrinsic validity, no more.
Q: If the will is not probated, or if it has not passed
probate, what happens to the will?
A: If the will has not passed probate, the dispositions in the will
cannot be given effect. It shall be inoperative. It cannot be
enforced. That is because of Section 1, Rule 75.
Q: Is there an exception?
A: Yes. In the case of Mang-oy vs. CA, it’s an old case
wherein the old Spanish Civil Code still lies.
In this case, an old man Tumpao executed a will in 1937.
23 years later, his heirs executed an extra-judicial partition in
accordance with the will without undergoing probate.
Q: Can they do that?
A: Presently, they cannot. However, in this case, during that
time, Article 1056 of the Civil Code of 1899 allows such: Art.
1056. If the testator should make a partition of his properties by
an act inter vivos, or by win, such partition shall stand in so far
as it does not prejudice the legitime of the forced heirs.
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The will alone, 'Exh. B', would be inoperative for the
simple reason that it was not probated, However,
when the persons who were named therein as heirs
and beneficiaries voluntarily agreed in writing to abide
by its terms probably to save the expenses of probate.
and furthermore, carried out its terms after the death
of the testator until now, then it must be held to be
binding between them.
Said agreement was not a disposal of inheritance by a
prospective heir before the death of the testator, but
an agreement to carry out the will. It was not
contested by the defendants and after the lapse of 25
years their right, if any, to assail it has prescribed
under Art. 1144 of the Civil Code. (Mang-oy v. CA)
Q: Does that law still apply today?
A: No. This law only applies to wills executed during the
duration of the Civil Code of 1899.
ATTY: Thus, with the advent of the New Civil Code, this law
was not carried over. Wills must undergo probate. WHY must
there be probate? Why can’t they just agree or execute an
extrajudicial settlement in accordance with the will of the
testator? WHY?
Because the will is the testator’s last hurrah, that a person can
make, once he passes on. That is what is being protected
here.
PRINCIPAL TESTATE PROCEEDING
Q: WHAT ARE THE TWO TYPES OF PROBATE?
A:
1. Domiciliary- the will is probated for the first time. It is
synonymous to principal. It is done in the jurisdiction
of the decedent’s last domicile. This is usually
governed by Rule 76.
2. Ancillary- the will is probated again in instances where
the will has to be reprobated. It is done in any other
jurisdiction regardless of the domicile of the decedent.
This is usually governed by Rule 77.
(JSL Jan 28, 2019)
Joint Probate of Wills
Can there be joint probate of wills?
Yes, it is allowed.
What is prohibited is joint execution of wills?
When does the jurisdiction of probate court attach?
It attaches when a will is delivered or a petition for its
allowance is filed in the court having jurisdiction (Rule 76,
Section 1)
When you deliver a will in court without any
corresponding petition, does the court acquire
jurisdiction? (Why?)
Yes, because jurisdiction is vested upon the delivery to the
proper court, even if no petition for its allowance is filed until
later. (Rodriguez v Borja)
In the case of Rodriguez v Borja, there was a petition for
an intestate proceeding, which came first: the petition or
the deliver of the will? (Ans: the delivery)
What happens to the intestate proceeding?
The testate proceeding (due to the delivery of the will) will
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
commence, suspending the intestate proceeding.
(Case: Will was delivered March 4, while the intestate
proceeding was initiated 8 days later, or on March 12)
What is the reckoning point here— the filing of the petition
or the delivery of the will? It is the delivery of the will (March
4)
Can you file a probate petition without attaching the will?
Yes
Principal Testate Proceeding
Who may file petition
Who may petition for a probate of a will? (Sec. 1, Rule 76)
Rule 76. Section 1. Who may petition for the allowance 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
death of the testator, petition the court having jurisdiction to
have the will allowed, whether the same be in his possession
or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the court
for the allowance of his will.
. testator himself
. Any executor, devisee, or legatee named in a will
. any other person interested in the estate may”
When the testator petitions for the probate of his own will,
what is the coverage of his will?
Only up to the time the will is allowed
What happens after the certificate of allowance is issued?
The proceeding will be terminated.
If the petition for probate is filed by persons other than the
testator, what is the coverage of the proceeding?
It will continue until the distribution of the estate is satisfied.
Delivery of Will
Who has the duty to deliver the will?
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.
- custodian of the will (Rule 75.3)
- Executor (Section 2)
What is the duty of the executor if receives a copy of the
will?
Rule 75. Section 3. Executor to present will and accept or
refuse trust. — A person named as executor in a will shall,
within twenty (20) days after he knows of the death of the
testate, or within twenty (20) days after he knows that he is
named executor if he obtained such knowledge after the death
of the testator, present such will to the court having jurisdiction,
unless the will has reached the court in any other manner, and
shall, within such period, signify to the court in writing his
acceptance of the trust or his refusal to accept it.
He must present such will to the court within 20 days after he
has knowledge of testator’s death and signify in writing his
acceptance or refusal of the trust (R75.3)
What happens if there is failure to deliver a will in court?
Rule 75. Section 4. Custodian and executor subject to fine for
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neglect. — A person who neglects any of the duties required in
the two last preceding sections without excused satisfactory to
the court shall be fined not exceeding two thousand pesos.
Rule 75. Section 5. Person retaining will may be committed.
— A person having custody of a will after the death of the
testator who neglects without reasonable cause to deliver the
same, when ordered so to do, to the court having jurisdiction,
may be committed to prison and there kept until he delivers the
will.
Negligent person may be fined, if without satisfactory excuse. If
he failed despite when ordered to do so, he may be committed
to prison, if the failure was without reasonable cause (R75.5)
In case of refusal to deliver a will, can mandamus apply?
No, unless there is no other speedy and adequate remedy in
the ordinary course of the law (Rule 65)
Mandamus is not used for the redress of private wrongs, but
only in matters relating to the public.
An adequate remedy is for the production of the will (Rule
75, Sections 2 to 5) (Uy Kiao Eng v Nixon Lee)
Given the specific provisions of the Rule on delivery of the will,
and the sanctions imposed for its non-delivery, mandamus will
not apply. For there is a specific remedy provided by law for
purposes of securing a copy of the will in order to probate the
will. Under Rule 65, mandamus will only lie when there is no
other speedy and adequate remedy in the ordinary course of
the law. Obviously, Rule 75, Sec.4, provides for specific
remedy in case of failure or refusal to delivery a copy of the
will.
Contents of the petition
Rule 76. Section 2. Contents of petition. — A petition for the
allowance of a will must show, so far as known to the
petitioner:
a. The jurisdictional facts;
b. The names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent;
c. The probable value and character of the property of
the estate;
d. The name of the person for whom letters are prayed;
e. If the will has not been delivered to the court, the
name of the person having custody of it.
But no defect in the petition shall render void the allowance of
the will, or the issuance of letters testamentary or of
administration with the will annexed.
Is the attachment of the will to the petition a jurisdictional
requirement?
Fran v Salas
No, the Rules allow the filing of the petition for the probate by
the person named therein regardless of whether or not he is in
possession of the will, or the same is lost or destroyed.
Even if only a translation of a copy of the will is attached, the
petition may lie.
Can you have a will probated without a copy of the will
being presented in court?
No, you cannot have a will probated in court without presenting
it in court, if it is available. What is allowed: the petition need
not attach a copy. Fran v Salas says that a mere translation is
enough. Even if you have no translation, an allegation is
enough, provided in the course of the proceedings you are
able to present a copy of that will in court.
The general rule: you cannot have a will probated, unless a
copy is presented in evidence in the course of proceeding.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
You may not attach it in your petition, but you have to present
in the course of the proceeding as part of your evidence.
Notice of Hearing
After the petition is filed in court, what will the court do?
Rule 76. Section 3. Court to appoint time for proving will.
Notice thereof to be published. — When a will is delivered to,
or a petition for the allowance of a will is filed in, the court
having jurisdiction, such court shall fix a time and place for
proving the will when all concerned may appear to contest the
allowance thereof, and shall cause notice of such time and
place to be published three (3) weeks successively, previous to
the time appointed, in a newspaper of general circulation in the
province.
But no newspaper publication shall be made where the petition
for probate has been filed by the testator himself.
Rule 76. Section 4. Heirs, devisees, legatees, and executors
to be notified by mail or personally. — The court shall also
cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other
known heirs, legatees, and devisees of the testator resident in
the Philippines at their places of residence, and deposited in
the post office with the postage thereon prepaid at least twenty
(20) days before the hearing, if such places of residence be
known. A copy of the notice must in like manner be mailed to
the person named as executor, if he be not the petitioner; also,
to any person named as coexecutor not petitioning, if their
places of residence be known. Personal service of copies of
the notice at lest (10) days before the day of hearing shall be
equivalent to mailing.
If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
Rule 77. Section 2. Notice of hearing for allowance. — When
a copy of such will and of the order or decree of the allowance
thereof, both duly authenticated, are filed with a petition for
allowance in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court shall fix a
time and place for the hearing, and cause notice thereof to be
given as in case of an original will presented for allowance.
Rule 79. Section 3. Court to set time for hearing. Notice
thereof. — When a petition for letters of administration is filed
in the court having jurisdiction, such court shall fix a time and
place for hearing the petition, and shall cause notice thereof to
be given to the known heirs and creditors of the decedent, and
to any other persons believed to have an interest in the estate,
in the manner provided in sections 3 and 4 of Rule 76.
It shall fix a time and place for the proving the will when all
concerned may appear to contest the allowance thereof, and
shall cause notice of such time and place to be published 3
weeks successively, previous to the time appointed, in a
newspaper of general circulation.
But, if it is the testator himself who filed the petition for
probated, publication is not necessary.
Upon receipt of the petition for probate, the court will have to
examine the petition; practically, it will look at if all the
allegations are in order. Then, it can issue an order for the
hearing of the petition.
The order will state what (content)? the time and place of
hearing
It will set the date, time and place of hearing. And the fact of
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notice; the order will be published. Alaban v CA Aranz v Galing

Where will it be published? Petitioners were not made GR: It is clear from the
in a newspaper of general circulation in the province where the parties to the probate aforecited rule (Rule 76, sec
estate is located proceedings because the 4) that notice of the time and
decedent did not institute place of the hearing for the
For how long? 3 successive weeks them as her heirs. Besides, allowance of a will shall be
assuming arguendo that forwarded to the designated
Aside from the publication of notice, what else should be petitioners are heirs of the or other known heirs,
done for the order? decedent, lack of notice to legatees, and devisees
Known heirs, legatees or devisees and executors should be them is not a fatal defect residing in the Philippines at
also notified (R76.4) since personal notice upon their places of residence, if
the heirs is a matter of such places of residence be
The notice of hearing will also be sent to the heirs, legatees procedural convenience and known.
and devisees, if known. not a jurisdictional requisite.
EXC: Only when you do not
How will it be sent? Personally Petitioners in this case are know them in good faith
mistaken in asserting that despite diligent efforts of
Who are the heirs entitled to personal notice? they are not or have not locating the other heirs.
Compulsory heirs become parties to the probate There is no question that the
proceedings. residences of herein
If the testator petitions for the probate of his own will, Publication is notice to the petitioners legatees and
what is the rule on notice required? whole world that the devisees were known to the
Notice will only be required for compulsory heirs. proceeding has for its object probate court. The petition for
to bar indefinitely all who the allowance of the will itself
Will still there be a need for a publication? might be minded to make an indicated the names and
No, so, mas matipid kung ang testator nag-file ng petition; you objection of any sort against addresses of the legatees and
only need to notify compulsory heir the right sought to be devisees of the testator. But
established. It is the despite such knowledge, the
Take note: there is a qualification as to who is entitled to publication of such notice that probate court did not cause
personal notice: brings in the whole world as a copies of the notice to be sent
- it must be to known heirs, legatees, devisees (Alaban v CA) party in the case and vests to petitioners.
the court with jurisdiction to
In this case, who were not notified for the petition for hear and decide it. Thus,
probate? even though petitioners were
the petitioners (Cynthia Alaban, Francisco Collado, et not mentioned in the petition
al)… but according to the Supreme Court, they are not entitled for probate, they eventually
to personal notice as they were not compulsory heirs. (FT: became parties thereto as a
“Petitioners, as nephews and nieces of the decedent, are consequence of the
neither compulsory nor testate heirs who are entitled to be publication of the notice of
notified of the probate proceedings under the Rules. hearing.
Respondent had no legal obligation to mention petitioners in From 2014 TSN: To reconcile, Sec 4 is mandatory for as long
the petition for probate, or to personally notify them of the as the heirs are mentioned in the petition and addresses are
same.”)
also indicated, what happened in alaban is that the heirs are
Who are the legatees or devisees in the will? not entitled to personal notice because they are not mentioned
respondent Francisco Provido in the will they did not come under Section 4. So Section 4 is
jurisdictional, failure to comply is fatal.
Under the case of Alaban, who are entitled to notice?
Compare that with the case of Aranz v Galing. Because in the case of Aranz, there was that mention of a
known heir with the wrong address. Considered unknown pa
rin siya because the rules require that their names will be
known as well as their addresses.

So dapat dalawa ang alam niyo: the identities of the heirs, and
their addresses. Pag di naghatch ang dalawang yan, then they
are unknown heirs, such that you can be excused from giving
them personal notices. But they can still be made parties of the
case by reason of publication. BUT if you really know them and
their addresses, then you have to allege them in the petition,
and give them personal notices. Because it then becomes
mandatory, pursuant to the case of Aranz. Like I said, it all
boils down to your ethics.

“Individual notice upon heirs, legatees and devisees is

necessary only when they are known or when their places of
residence are known. In other instances, such notice is not

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necessary and the court may acquire and exercise jurisdiction
simply upon the publication of the notice in a newspaper of
general circulation”
If the will mentions Maria, Juan, pedro, and the petition alleges
the will, as well as the heirs of the decedent, which include
Jose and Elena. Who are entitled to notice?
Maria, Juan and Pedro, for they are known by mention in the
will.
Jose and Elena, will not require personal notice, being not
known.
If you look at the case of Aranz, you will see there who will
entitled to personal notice.
If the heirs are mentioned in the will, obviously, they should be
notified. Mere publication is not sufficient. There must be
personal notice pursuant to Sec. 4, Rule 76.
If the heirs are mentioned in the petition, even if they are
mentioned in the will, they should still be given personal notice
because the qualification under the law is the heirs must be
known. They must be known heirs, and with residence in the
Philippines; address known.
So the heirs who are known and their address known must be
given personal notice.
How do you know that theirs are known?
Their names are mentioned in the will
their names are mentioned in the petition
and their addresses are known. Then, they are entitled to
personal notice.
It’s not enough to simply limit yourself to those mentioned in
the will. If there are persons, heirs, also mentioned in the
petition, although not mentioned in the will. These are
considered “known” heirs. They should also be given personal
notice.
Kung ikaw yung lawyer, you will have the will probated, para di
na sumakit ang ulo mo, just limit yourself to the heirs
mentioned in the will. Kung dadagdagan mo pa yan ng other
heirs, hahanapin yan ng personal notice by the others
mentioned in the petition.
But if you want to add more, the burden is on you that
personal notices are already sent to the other heirs mentioned
in the petition, but not mentioned in the will. Why? because
they are now known; you volunteered their existence in the
petition. So, you now have the burden to have them also
notified personally. Kahit wala silang pakialam, wala silang
makukuha sa will, but, you may mentioned their existence,
presence in the petition, they should also be notified.
The qualifications there should be the heirs should be "known”
and their “addresses known”. Those are the magic words.
They should be given personal notice.
The collateral heirs, persons not mentioned in the will, not
mentioned in the petition, are they still entitled with personal
notice? No more, unless the testator is the one who petitions
for his own will; his own compulsory heirs must be given notice.
“Notice to known heirs”—what is the nature of that
requirement? Can you dispensed with that requirement?
personal Notice to known heirs is both Mandatory &
Jurisdictional
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Failure to sent personal notice to known heirs (through a will
or petition), renders a jurisdictional defect in the petition. The
court does not acquire jurisdiction.
So both mandatory and jurisdictional, that is the nature of the
personal notice requirement in so far as the known heirs.
If it is the testator, you dispense already the publication.
Can you dispense with the notice to the legatees,
devisees?
Yes, but personal notice is required to be sent to compulsory
heirs
Given that the personal notice is only required to compulsory
heirs, then, the devisees, legatees who are non-compulsory
heirs, need not be notified, if it is the testator who petitions for
probate of his own will.
Who may oppose
Once the petition is set for hearing, and the notices have
been published and served on the heirs, who can oppose
the petition?
Rule 79. Section 1. Opposition to issuance of letters
testamentary. Simultaneous petition for administration. — Any
person interested in a will may state in writing the grounds why
letters testamentary should not issue to the persons named
therein as executors, or any of them, and the court, after
hearing upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the time, be filed for letters of
administration with the will annexed.
Any person interested in a will may state in writing the grounds
why letters testamentary should not be issued to the persons
named (Rule 79)
Who will be benefitted if the will is not probated? legal
heirs
In the case of Acain v IAC, who will be benefited here in
the non-probate of the will?
The adopted child will be the one to benefit and his interest is
in the intestate proceeding.
In case there is preterition, the preterited heir can opposed the
probate of the will. You already know what preterition means:
there is an omission of a compulsory heir in the will. In that
case, the preterited will may oppose the probate the will. And
the interest is based on the benefit he will get if the will is not
probated. A preterited heir is obviously an intestate heir. He
would benefit if the estate is settled intestacy.
In the case of Maloles v Philips, was there preterition here,
and was the person who filed the petition had the
necessary interest?
In Maloles, the oppositor (a nephew of the deceased) had no
interest in the probate for he was not a compulsory heir.
So, he cannot be considered as an interested person in the
capacity of an heir. How about as a creditor, didn’t he claim
to be a creditor of the testator? Can he be considered as
an interested person?
No, his claim as a creditor was made belatedly nor was it
supported with evidence. The claim of being a creditor was a
mere afterthought. Obviously, it was to circumvent the obvious
fact that he was not an heir. He wanted to appear that he was
a creditor; however, it was a mere afterthought.
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The rule here: when you oppose the probate of the will, you
must be able to show your interest in the estate—either
as an heir or as a creditor. Without that interest shown, you
cannot oppose the petition; you have no right.
Pagnakakita kayo ng publication for probate of a will in a
newspaper, you cannot oppose just because you like filing.
Hindi pwede maki-sawsaw. Although the whole world is
considered notified and brought in as parties to the proceeding,
not everyone can oppose.
The one who has the right to oppose must show interest and
the interest, again, must be direct and material, not merely
contingent. You must be able to show what capacity: are you
an heir, an intestate heir or a creditor? Other than those, you
cannot. It must be clear: not everyone can oppose. Although
the entire world is considered part of the proceeding (because
it’s an in rem proceeding), not everyone can oppose. You must
show proper interest.
How do you oppose if you have the proper interest?
Rule 76. Section 10. Contestant to file grounds of contest. —
Anyone appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy thereof
on the petitioner and other parties interested in the estate.
You can make known your opposition in writing and state your
grounds for contesting the will.
Proof Required
A. LOST OR DESTROYED WILL
Can a lost or destroyed will be probated?
Yes,
How do you allege that in the petition?
Rule 76. Section 6. Proof of lost or destroyed will. Certificate
thereupon. — No will shall be proved as a lost or destroyed will
unless the execution and validity of the same be established,
and 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, nor unless its provisions are clearly and
distinctly proved by at least two (2) credible witnesses. When a
lost will is proved, the provisions thereof must be distinctly
stated and certified by the judge, under the seal of the court,
and the certificate must be filed and recorded as other wills are
filed and recorded.
If you want to probate a lost or destroyed will, how do you state
that in the petition? Obviously you cannot attach a copy of the
will because it was lost or destroyed.
Allege the circumstances or fact of loss or destruction without
the testator’s knowledge
How do you prove a lost or destroyed will?
1. Holographic will
Rodelas v Aranza
If the holographic will has been lost or destroyed and no other
copy is available, the will cannot be probated because the best
and only evidence is the handwriting of the testator in said will.
A photostatic copy or xerox copy of the holographic will may be
allowed because comparison can be made with the standard
writings of the testator.
Even a mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the handwriting of
the deceased may be exhibited and tested before the probate
court
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Maam (2014 TSN): The very reason why a copy of a
holographic will should be presented in court is for there to be
some basis that the will was indeed in the handwriting of the
testator. Because a holographic will is one written, dated, and
signed in the testator’s own handwriting. So the only way to
authenticate it is to examine the handwriting. If there is no
photocopy available, then there can be no way of probating
that lost holographic will. But if you can produce a photocopy
or a carbon copy of the holographic will, then that can be
allowed. PROVIDED, that you were able to establish the
circumstances why you are presenting secondary evidence.
2. Notarial wills
If it’s a notarial will? It can be done even without a copy of the
will, provided that its content is established by 2 competent
witnesses. Also, the fact of lost of destruction must also be
alleged in the petition.
The fact of lost or destruction of the will is very important. You
cannot proceed to the proving of the will if you haven’t
established the lost or destruction of the will. Precisely, you
cannot produce the copy of the will. You must justify the non-
production of the will by proving its lost or destruction; and all
of that must be alleged in the petition and how it was lost, how
it was destroyed; the time, the place, the circumstances of the
lost or destruction.
And very important: the lost or destruction must be without the
knowledge of the testator. What happens when it was lost or
destruction was with the knowledge of the testator? The will is
actually revoked.
Very important: what you need to allege and prove, when the
will is lost or destroyed. You don’t just concentrate on the
contents of the will. You must prove the circumstances of the
lost or destruction of the will. Where was the testator at that
time? Was he aware of it? Did he in fact agree to the lost or
destruction?
All of these must be clearly established, because if it is shown
that the will had in fact been destroyed with the knowledge of
the testator, or even upon his instructions, there is no will to
probate in the first place, because there is already a revocation
of the will. There is no need to prove the contents of the will
because it has been revoked by the testator. Prove the
circumstances of the lost or destruction of the will more than
anything. These are all crucial to the probate of the lost will.
If it is a holographic will that is lost, can it be probated without
presenting a copy? No, the original will must be presented.
However, a photostatic copy of the will may be
presented.There must be, at the minimum, a photocopy of the
holographic will.
B. UNCONTESTED WILL
When the will is uncontested, meaning no one opposes it,
how do you prove it?
Rule 76. Section 5. Proof at hearing. What sufficient in
absence of contest. — At the hearing compliance with the
provisions of the last two preceding sections must be shown
before the introduction of testimony in support of the will. All
such testimony shall be taken under oath and reduced to
writing. It no person appears to contest the allowance of the
will, the court may grant allowance thereof on the testimony of
one of the subscribing witnesses only, if such witness testify
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that the will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature of
the testator explicitly declare that the will and the signature are
in the handwriting of the testator. In the absence of any such
competent witness, and if the court deem it necessary, expert
testimony may be resorted to.
One testimony of one of the subscribing witnesses, if such
witness testify that the will was executed as is required by law.
(R76.5)
If the holographic will is being probated upon the petition
of the testator himself, how do you prove it?
Rule 76. Section 12. Proof where testator petitions for
allowance of holographic will. — Where the testator himself
petitions for the probate of his holographic will and no contest
is filed, the fact that the affirms that the holographic will and the
signature are in his own handwriting, shall be sufficient
evidence of the genuineness and due execution thereof. If the
holographic will is contested, the burden of disproving the
genuineness and due execution thereof shall be on the
contestant. The testator to rebut the evidence for the
contestant.
If it is uncontested, the fact that the court affirms the
holographic will and the signature are in his own handwriting is
sufficient evidence of its genuineness and due execution.
(R76.12)
C. CONTESTED WILL
CONTESTED NOTARIAL WILL
Rule 76. Section 11. Subscribing witnesses produced or
accounted for where will contested. — If the will is contested,
all the subscribing witnesses, and the notary in the case of
wills executed under the Civil Code of the Philippines, if
present in the Philippines and not insane, must be produced
and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some of
such witnesses are present in the Philippines but outside the
province where the will has been filed, their deposition must be
taken. If any or all of them testify against the due execution of
the will, or do not remember having attested to it, or are
otherwise of doubtful credibility, the will may nevertheless, be
allowed if the court is satisfied from the testimony of other
witnesses and from all the evidence presented that the will was
executed and attested in the manner required by law.
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 witnesses, and if the court deem it necessary,
expert testimony may be resorted to.
Rule 76. Section 7. Proof when witnesses do not reside in
province. — If it appears at the time fixed for the hearing that
none of the subscribing witnesses resides in the province, but
that the deposition of one or more of them can be taken
elsewhere, the court may, on motion, direct it to be taken, and
may authorize a photographic copy of the will to be made and
to be presented to the witness on his examination, who may be
asked the same questions with respect to it, and to the
handwriting of the testator and others, as would be pertinent
and competent if the original will were present.
Rule 76. Section 8. Proof when witnesses dead or insane or
do not reside in the Philippines. — If the appears at the time
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
fixed for the hearing that the subscribing witnesses are dead or
insane, or that
none of them resides in the Philippines, the court may admit
the testimony of other witnesses to prove the sanity of the
testator, and the due execution of the will; and as evidence of
the execution of the will, it may admit proof of the handwriting
of the testator and of the subscribing witnesses, or of any of
them.
If it is contested, the burden is on the contestant. So, the mere
testimony of the testator will suffice if it is probated during his
lifetime and the will is contested.
When the will is contested, what is required is that 3 witnesses
who know the handwriting of the testator and that they attest
that it is of the testator. In the absence of competent witnesses,
the court may allow expert witnesses.
If it is a notarial will and it is contested, all the subscribing
witnesses and the notary public must be presented if they are
in the province (Philippines). However, if some or all are
outside the province where the will is filed, then, a deposition
may be taken.
Supposing you cannot produce all the witnesses or they
testify against the due execution of the will, what will be
the remedy?
The will may still be allowed by the court if it is satisfied from
the testimony of other witnesses and from all the evidence
presented that the will was executed an attested in the manner
required by law. (R76.11)
That’s the other time they resort to other testimonial evidence.
So, the best way to document, in a petition of a notarial will is
to have it recorded. Photographs, video recording, to attest the
voluntariness and due execution of the will. And that
videographer or photographer may be called to court, to
identify, to attest to the proceedings. Even if all the subscribing
witnesses will testify against the due execution of the will, you
can call the videographer or the photographer who was present
in order to prove its due execution. That is an example of other
witnesses that may be called upon if the subscribing witnesses
will testify against or cannot remember or recall what happen
or they are unreliable, no longer credible. Then, you can resort
to the testimony of other witnesses. Take note: this only occurs
when the notarial will is contested.
If it is not contested, then, no problem. Only one witness may
be called to testify.
Grounds for Disallowance
Section 9. Grounds for disallowing will. — The will shall be
disallowed in any of the following cases:
a. If not executed and attested as required by law;
b. If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
c. If it was executed under duress, or the influence of
fear, or threats;
d. If it was procured by undue and improper pressure
and influence, on the part of the beneficiary, or of
some other person for his benefit;
e. If the signature of the testator was procured by fraud
or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature
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thereto.
So, if the will was executed by the testator, by fraudulent
means, what kind of fraud is a ground to disallow a will?
1. Fraud "is a trick, secret device, false statement, or pretense,
by which the subject of it is cheated. It may be of such
character that the testator is misled or deceived as to the
nature or contents of the document which he executes, or it
may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a certain
will which, but for the fraud, he would not have made." (Ortega
v Valmonte; 2005)
In Ortega v Valmonte, was there fraud here?
No, there was no such fraud that would constitute a ground for
disallowance of the will.
Who oppose the will in this case? some relatives who were
omitted in the will
How do you prove fraud?
There must be supporting evidence not mere allegations. The
party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. The burden to
show otherwise shifts to the proponent of the will only upon a
showing of credible evidence of fraud.
There was no sufficient proof of fraud. In fact, there was no
validation of fraud. The mere fact that the wife was designated
as the sole beneficiary cannot be considered as fraud.
Omission of other relatives in the will cannot be considered
fraud. Even the varying dates cannot be considered as fraud
because these were sufficiently explained by the notary public.
So, when you allege fraud as your ground to oppose the
probate of the will, then, you must be able to show that the
fraud was such that it mislead or deceived the testator into
signing a document which he never intended to be his last will
and testament. That is the definition of fraud. It must be a
“trick” or device where the person who was made to sign was
unaware of the nature of the document that he is signing. That
is the kind of fraud which is a ground to oppose the probate of
the will.
If your fraud is only with respect to some variation in the dates
or omission of certain relatives, that is not the kind of fraud that
may be a ground to oppose a probate of a will.
Another ground to disallow a probate of a will is when the
testator is of unsound mind.
When is a person of sound mind? When is a person of
unsound mind?
The law presumes soundness of mind. (Art.800, Civil Code)
Exception: “…but if the testator, one month, or less, before
making his will was publicly known to be insane, the person
who maintains the validity of the will must prove that the
testator made it during a lucid interval. (Art.800, Civil Code)
Article 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired, or unshattered
by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be disposed
of, the proper objects of his bounty, and the character of the
testamentary act. (Civil Code)
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
So, a person who is of sound mind, can make a will. You know
that in your Succession. If he is of unsound mind, he cannot
make a will or the will that he made is invalid. That is a ground
to oppose the probate of a will. The ground, under the law, is
that he is of unsound mind or that he is insane. He is mentally
unsound.
How do you prove that the person is mentally unsound? If
a person is advance age that he forgets things, can he be
considered of unsound mind?
In Baltazar v Laxa, the Supreme Court held that forgetfulness
does not equate to being of unsound mind. Pacencia, the
testator, was 78 when she made the will, instituting Lorenzo
(her nephew) and the latter’s wife and children.
Here, all properties were bequeathed to the nephew and his
family.
Who opposed?
The oppositor here was another nephew, Antonio and some
other relatives. The ground that they used to oppose was the
supposed unsoundness of mind by Pacencia due to her being
forgetful.
Who were the witnesses who testified in that case (a
contested notarial will)?
Only Dr. Limpin, as other subscribing witnesses were no longer
able to testify for sufficient reasons. (One had a heart attack
and bed-ridden, and the other suffered a stroke and undertook
a surgery, who can no longer talk nor remember names of his
children).
Who were the witnesses that were able to testify?
Dr. Limpin, a subscribing witness. The notary public was not
presented (Judge Limpin), given his situation.
Being a notarial will, all four (witnesses and notary public)
should have been presented. But it turns out only one took the
witness stand. But it was allowed? “Lorenzo was able to
satisfactorily account for the incapacity and failure of the said
subscribing witness and of the notary public to testify in court.
Because of this the probate of Paciencia’s Will may be allowed
on the basis of Dra. Limpin’s testimony proving her sanity and
the due execution of the Will, as well as on the proof of her
handwriting.
It is an established rule that “[a] testament may not be
disallowed just because the attesting witnesses declare against
its due execution; neither does it have to be necessarily
allowed just because all the attesting witnesses declare in
favor of its legalization; what is decisive is that the court is
convinced by evidence before it, not necessarily from the
attesting witnesses, although they must testify, that the will was
or was not duly executed in the manner required by law.
(Baltazar v Laxa, 2012)
Were there other witnesses presented, given that the other
subscribing witnesses were unable to do so?
There were other witnesses other than Dra. Limpin.
Here, the notarial will had only one subscribing witness.
Was it allowed for probate? How do you reconcile the
Rules?
Yes, there was only one subscribing witness, yet, there were
other witnesses. The other witnesses testified on the incapacity
of the other subscribing witnesses to testify.
Now, you have to consider here that the opposition came after
the scheduled hearing. At the time of the hearing, there was no
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opposition that is why they only presented one subscribing
witnesses. A day after, dyan pa pumasok ang oppositor. But
still, they tried to justified the non-appearance of the other
witnesses.
So the moment the petition became opposed, the petitioner
has the burden to present the other witnesses. But they could
not; because they were no longer able, unfit to testify. So this is
one case, were the Supreme Court, still allowed the probate of
the will despite the will being contested and despite all the
witnesses not being presented, because all the subscribing
witnesses were all accounted for. And no matter what you do,
they could not anymore.And there was a sufficient testimony as
far as Dra. Limpin is concerned, as to the genuineness and
due execution of the will.
Now, as to the ground of mental capacity of the testator, the
ground cited was the forgetfulness. Naging ulyanin ang
testator. The Supreme Court still considered the ground to be
insufficient, why? “the state of being forgetful does not
necessarily make a person mentally unsound so as to render
him unfit to execute a Will. Forgetfulness is not equivalent to
being of unsound mind.”
Mere allegation that the testator is forgetful is not enough to
disallow the probate of the will because the law presumes that
the testator is of sound mind.
So the burden of proof is on the oppositor to show that the
testator is of unsound mind. Even if the the person is forgetful,
it doesn’t mean he is of unsound mind.
The definition of a person of sound mind is found in the Civil
Code, Article 799. And even this provision of law recognises
that a person of sound mind, “need not be in full possession of
his reasoning faculties or that his mind be wholly broken or
unimpaired or unshattered by disease, injury or other cause”
It recognises that a person who is suffering from Alzheimer’s
disease, who is forgetful, who cannot remember the details of
his life, doesn’t mean that he is of unsound mind incapable of
making a will.
What the law requires under Article 799 is that the testator is at
the time of making the will knows the nature of the estate to be
disposed of, the proper objects of his bounty, and the character
of the testamentary act.
He is aware of what document he is executing, what is it for,
what is the significance of the act. Number 2, he is aware of
the estate that is to be disposed in that document. And the
manner of the disposition of his estates, and who are his
beneficiaries. As long as he is aware of these, even if he
suffers from some mental diseases like Alzheimer’s disese, he
is still presumed to be of unsound mind. And it is on the
oppositor to hurdle the burden of proof that the person is of
unsound mind.
The testator has in his favor the presumption of being of sound
mind of the making of the will. So, if you are opposing the
probate of the will:
1. you must show your interest (direct and material);
2. you have the burden; because the law presumes.
Especially if your ground is mental incapacity, the
burden is on you that the testator is of unsound mind.
And even if your ground is fraud, like in the case of
Valmonte, the burden is on you to show fraud.
As far as the soundness of the mind, in the case of Baltazar,
the mere existence of the will is prima facie true of the intent of
the testator to make a will and to distribute his properties in the
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
manner provided in the will. Anyone who opposes that must
show proof that that is not so and only then, can the will be
considered void. But absent such sufficient proof, then, there is
no other choice but to give it credit because the policy of the
law is to favor testacy. If you are the oppositor, the burden is
yours, and to show the ground the you cited in order to
invalidate the will. But before that, you must be able to show
your interest; you must be a person of interest, either an
instestate heir or a creditor in the proceeding. Then, you
proceed to prove the ground of the opposition of the probate of
the will.
(ICFC/Jan 29, 2019)
Demurrer
Can an oppositor be deprived of the right to prove the
grounds to oppose the probate of the will? (The grant of
the demurrer) No
Codoy v Calugay
Facts:
Calugay et al (legatees and devisees of the will) filed a petition
for probate of the holographic will of the deceased. Codoy et al
filed an opposition thereto alleging that the holographic will was
a forgery and that the same is even illegible.
Calugay et al presented six (6) witnesses and various
documentary evidence. Codoy et al instead of presenting their
evidence, filed a demurrer to evidence, claiming that
respondents failed to establish sufficient factual and legal basis
for the probate of the holographic will of the deceased Matilde
Seño Vda. deRamonal.
The trial court granted the demurrer to evidence filed thus the
petition for probate was denied.
Ruling:
The records are ordered remanded to the court of origin with
instructions to allow petitioners to adduce evidence in support
of their opposition to the probate of the holographic will of the
deceased Matilde Señovda. De Ramonal.
The rule is that after plaintiff has completed presentation of his
evidence and the defendant files a motion for judgment on
demurrer to evidence on the ground that upon the facts and the
law plaintiff has shown no right to relief, if the motion is granted
and the order to dismissal is reversed on appeal, the movant
loses his right to present evidence in his behalf (Sec. 1 Rule 33
Revised Rules of Court). Judgment may, therefore, be
rendered for appellant in the instant case.
In so far as probate proceeding is concerned, the caveat in
Rule 33 does not apply. Even if we said that the rules on civil
procedure apply suppletorily, there are certain cases that these
will not apply to uphold the public policy of ensuring the intent
of the testator to be followed.
If a will is contested, the oppositor has the burden of proof to
show why it should not be allowed.
A visual examination of the holographic will convince us that
the strokes are different when compared with other documents
written by the testator. The signature of the testator in some of
the disposition is not readable. There were uneven strokes,
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retracing and erasures on the will.
Comparing the signature in the holographic will dated August
30, 1978, and the signatures in several documents such as the
application letter for pasture permit dated December 30, 1980,
and a letter dated June 16, 1978, the strokes are different. In
the letters, there are continuous flows of the strokes,
evidencing that there is no hesitation in writing unlike that of
the holographic will. We, therefore, cannot be certain that the
holographic will was in the handwriting by the deceased.
Considering that the reason of the demurrer is reversed,
under the Rule on demurrer, there should be an automatic
grant of the petition. Was there an automatic grant of the
petition here upon reversal of the demurrer?
No. The caveat in Rule 33 does not apply. If a will is contested,
the oppositor has the burden of proof to show why it should not
be allowed.
Maam: so the paramount consideration here is to determine
the authenticity of the will. So even if the demurrer is reversed
on appeal, it does not automatically grant the probate. Even
the oppositors are given the opportunity to prove the grounds
of his opposition in lieu of the fact that not all of the witnesses
presented were able to attest to the handwriting of the testator
and that there are variances in the signature.
Certificate of Allowance
After the will is probated, what will the court do?
Rule 76, Section 13. Certificate of allowance attached to
prove will. To be recorded in the Office of Register of
Deeds. — If the court is satisfied, upon proof taken and filed,
that the will was duly executed, and that the testator at the time
of its execution was of sound and disposing mind, and not
acting under duress, menace, and undue influence, or fraud, a
certificate of its allowance, signed by the judge, and attested by
the seal of the court shall be attached to the will and the will
and certificate filed and recorded by the clerk. Attested copies
of the will devising real estate and of certificate of allowance
thereof, shall be recorded in the register of deeds of the
province in which the lands lie.
Maam: So when the court grants the probate of the will then
there will be a certificate of allowance. That will be recorded
in the registry of deeds. So if it is a testator who petitions for
the probate of his will, the proceeding will terminate upon the
certificate of allowance. Why? Because he hasn’t died yet. The
next step would presuppose his death, and that is the issuance
of letters testamentary to the executor. That already
presupposes the death of the testator. For as long as the
testator is alive, there will be no other proceeding other than
the certificate of allowance.
So technically he can still revoke the probated will and execute
a new one because that is not yet due for execution. It will only
be implemented upon his death. If the will is being probated by
persons other than the testator and after the death of the
testator, then the certificate of allowance is merely one stage of
the probate proceeding. It will continue to the next level which
is the issuance of letters testamentary to distribution of the net
estate to the heirs.
Ancillary Testate Proceeding
What is an ancillary testate proceeding?
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
type where the will was probated again in instances where the
will has to be reprobated. The probate done in any other
jurisdiction regardless of the domicile of the decedent.
Rule 77. Section 1. Will proved outside Philippines may be
allowed here. — Wills proved and allowed in a foreign country,
according to the laws of such country, may be allowed, filed,
and recorded by the proper Court of First Instance in the
Philippines.
What wills are probated outside the Philippines?
Those wills that are executed outside the Philippines, not
according to Philippine laws.
Elements of a re-probate proceeding
1. A will probated outside of the Philippines
2. Properties located here in the Philippines
3. Evidence of proof of compliance of the will of the laws
where it is executed to wit:
a. Due execution of the will in accordance with the
foreign laws
b. The testator has his domicile in the foreign
country and not in the Philippines
c. The will has been admitted to probate in such
country;
d. The fact that the foreign tribunal is a probate
court, and
e. The laws of a foreign country on procedure and
allowance of wills.
Can a foreign will that has not yet passed probate abroad,
be subject of Rule 77? No.
Palaganas v Palaganas
Ruperta Palaganas, a Filipino who became a naturalized US
citizen, died on Nov 8, 2001. She had designated her brother
Sergio as the executor for her will. Her will was executed in
California.
Ernesto (another brother of Ruperta) filed a petition for the
probate of Ruperta’s will. However, petitioners Manuel and
Benjamin, nephews of Ruperta, opposed the petition on the
ground that Ruperta’s will should not be probated in the
Philippines but in the US where she executed it.
Ruling:
In insisting that Rupertas will should have been first probated
and allowed by the court of California, petitioners Manuel and
Benjamin obviously have in mind the procedure for
the reprobate of will before admitting it here. But, reprobate or
re-authentication of a will already probated and allowed in a
foreign country is different from that probate where the will is
presented for the first time before a competent
court. Reprobate is specifically governed by Rule 77 of the
Rules of Court. Contrary to petitioners stance, since this latter
rule applies only to reprobate of a will, it cannot be made to
apply to the present case. In reprobate, the local court
acknowledges as binding the findings of the foreign probate
court provided its jurisdiction over the matter can be
established.
Maam: When you say reprobate, it has already been probated
abroad. It is only un-probated will that can be probated here for
the first time under Rule 76. As long as it involves a property
located here in the Philippines. If it is an UN-PROBATED
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FOREIGN WILL, you cannot avail of Rule 77. There is nothing
to reprobate.
What do you mean by reprobate?
Allowance of wills proved and allowed in a foreign country,
according to the laws of such country,
What is the reason for the reprobate?
Perez v Tolete
The respective wills of the Cunanan spouses, who were
American citizens, will only be effective in this country upon
compliance with the following provision of the Civil Code of the
Philippines:
Art. 816. The will of an alien who is abroad produces effect in
the Philippines if made with the formalities prescribed by the
law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those
which this Code prescribes.
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is
imperative. The necessity of presenting evidence on the
foreign laws upon which the probate in the foreign country is
based is impelled by the fact that our courts cannot take
judicial notice of them
Maam: when a will is probated, that is a judgment. If it is
probated abroad, you are dealing with a foreign judgment.
Foreign judgment do not have extra-territorial effectivity. They
cannot be given effect outside of the territorial jurisdiction of the
court that issues it. Any judgment abroad, cannot be just
recognized in the Philippines.
A probate of a foreign will abroad, necessarily requires a
foreign judgment and that foreign judgment will have to be
recognized here. How do you do that? As far as probate of the
wills are concerned, Rule 77. If it is a foreign divorce decree,
Rule 48 or Rule 108. So same concept lang. The reprobate of
the will in the Philippines is meant to enforce a judicial decision
rendered by a foreign court that affect properties located in the
Philippines.
When a foreign will is probated abroad or subject to a
probate proceeding abroad, can reprobate still be required
when there is already a compromise agreement entered by
the parties abroad?
Robert v Leonidas
Facts:
Edward Grimm, an American resident of Manila, died in Manila.
He was survived by his second wife, Maxine Tate Grimm and
their two children, named Edward Miller Grimm II (Pete) and
Linda Grimm and by Juanita Grimm Morris and Ethel Grimm
Roberts (McFadden), his two children by a first marriage which
ended in divorce.
Grimm executed on January 23, 1959 2 wills in California. First
will: disposed of his Philippine estate which he described as
conjugal property of himself and his second wife. Second will:
disposed of his estate outside the Philippines.
The 2 wills and a codicil were presented for probate by Maxine
on March 7, 1978 in Utah. But before this, there was already
an intestate petition filed in Manila by Ethel on January 1978.
Maxine admitted that she received notice of the said intestate
petition. Thereafter, the 2 wills and codicil were admitted to
probate.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
2 weeks later, Maxine and her 2 children entered into a
compromise agreement in Utah regarding the estate.
Maxine filed an opposition and motion to dismiss the intestate
proceeding on the ground of the pendency of a proceeding for
the probate of Grimm’s will in Utah. The opposition and motion
to dismiss were; however, withdrawn by Maxine because of the
compromise agreement.
But On June 10, 1980, Maxine filed a petition praying for the
reprobate of Grimm’s 2 wills that were already probated in
Utah, and that the Utah partition be set aside.
Ruling:
A testate proceeding is proper in this case because Grimm
died with two wills and "no will shall pass either real or
personal property unless it is proved and allowed"
The probate of the will is mandatory. It is anomalous that the
estate of a person who died testate should be settled in an
intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing the
two cases.
Maam: What happened in Utah, it approved the compromise
that disregarded the provisions of the will. They now came into
the Philippines because there are properties in the Philippines.
So this is one case where the heirs disregarded the provisions
of the will even though there is already a pending probate
proceeding by entering a compromise agreement abroad. Our
laws do not allow the deviation from the will. Only when it is
declared void that you can resort to intestate proceedings. In
intestate proceedings, the parties can enter into a compromise
and agree how to distribute the estate. According to the SC, it
is anomalous to settle the estate of the testator in an intestate
proceeding when he died estate. That is the policy of our law,
we should not disregard the will.
So here, technically, there is no probate of the will abroad,
because there is a compromise executed there. Still it has to
be probated in the Philippines. A foreign will must be probated
here either in an original petition or in a reprobate proceeding.
Now after a petition for a reprobate proceeding is received
by the court, what will the court do?
Rule 77 Section 2. Notice of hearing for allowance. — When a
copy of such will and of the order or decree of the allowance
thereof, both duly authenticated, are filed with a petition for
allowance in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court shall fix a
time and place for the hearing, and cause notice thereof to be
given as in case of an original will presented for allowance.
Maam: so the same notice requirement as in a petition for
probate under Rule 76, there must be PUBLICATION and
PERSONAL NOTICE to the known heirs.
What do you need to prove in a reprobate proceeding?
Evidence of proof of compliance of the will of the laws where it
is executed to wit:
1. Due execution of the will in accordance with the foreign
laws
2. The testator has his domicile in the foreign country and not
in the Philippines
3. The will has been admitted to probate in such country;
4. The fact that the foreign tribunal is a probate court, and
5. The laws of a foreign country on procedure and allowance
of wills.
What is the reason for proving the foreign law?
Article 816. The will of an alien who is abroad produces effect
in the Philippines if made with the formalities prescribed by the
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law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those
which this Code prescribes.
Maam: Our own civil code provides that if the will is executed
abroad, then you must prove that it was executed in
accordance with the laws abroad. In order to recognize its
validity, it must be made in conformity with the formalities
prescribed by the law of the place. Lex loci celebrationis. If it is
executed in one place, then you follow the formalities
prescribed in that place for the validity of the document.
So obviously if it is a foreign will, you must look into the validity
of th formalities of the will pursuant to the foreign law of the
country where it was executed. That is what article 816 tells
you or if wala yun, kung ano yung national law niya. Let us say
he is Japanese, he went to America, he executed a last will
and testament, you cannot produce the law of California, so
law of Japan ang i-produce mo kasi that is his national law,
kung wala naman, that is where you apply Philippine law.
okay? That is where you can find processual presumption in so
far as execution of the wills is concerned.
Now in the case of Perez v Tolete, was the foreign law of
New York presented in evidence because diba the will was
executed in New York? No. So what did the probate court
do?
On February 21, 1984, Judge de la Llana issued an order,
disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix, requiring
the submission of petitioner of an inventory of the property
received by her as special administratrix and declaring all
pending incidents moot and academic.
Judge de la Llana reasoned out that petitioner failed to prove
the law of New York on procedure and allowance of wills and
the court had no way of telling whether the wills were executed
in accordance with the law of New York.
Just when petitioner was ready to submit further evidence on
the law obtaining in the State of New York" and praying that
she be granted "the opportunity to present evidence on what
the law of the State of New York has on the probate and
allowance of wills, in the end, the Judge denied the reprobate
of the will .The denial is one the ground that the probate of
separate wills of two or more different persons even if they are
husband and wife cannot be undertaken in a single petition.
Maam: so the RTC judge here applied the Philippine law
because the New York Law was not presented. So, in a
notarial will, it needs, 3 witnesses, but here only 2. So in this
case, the will was disallowed because the Philippine law was
applied as there was no proven New York law. So was this
correct? NO.
The SC here gave chance to the petitioner to present proof of
New York law and remanded the case to the probate court to
receive evidence of the New York law.
So in other words, as far as reprobate proceeding is
concerned, the policy of the SC has been to give effect to the
will in accordance with the law of the country where the foreign
will was executed. If there is a problem with technicalities as to
the submission of foreign law, then by all means, give all the
opportunities to the petitioner to present the foreign law
because it will result in an anomalous situation where a person
died testate, who’s will has already been probated abroad, but
in a reprobate proceeding, his estate will be distributed
intestate. Diba anomalous yun. Reprobate na lang dito eh
bumagsak siya.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
This is the same as the case in Roberts, you are aware of the
presence of the will yet you converted the entire proceeding to
intestate. Our law does not allow that. Although Art 816
provided for an alternative law to prove in case you cannot
prove foreign law, but still the policy of the law is to give effect
to will in accordance to the law which it is executed.
How do you prove foreign law?
Rules on Evidence: Rule 132 Section 24. Proof of official
record. — The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose,
may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is in foreign
country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record
is kept, and authenticated by the seal of his office.
Is there an agency in the Philippines that keeps a copy of a
foreign law? no. There is none.
Maam: just as foreign judgments have no extraterritorial effect,
so as foreign law. anong pakialam natin dun. There is no
official copy of foreign laws deposited within the Republic of the
Philippines.
So how do you prove foreign law, punta ka sa lugar na yon, sa
Congress nila, get a copy of the law by the legal custodian,
then go to the embassy of the Philippines, have it
authenticated, yung naka red ribbon. Ganon. Only then you
can say that I have proof of foreign law. Pag hindi yan
“consularized” sorry not admissible in evidence because it
violates section 24 of Rule 132.
You can also present an official publication of the law. how do
you do that? Dala-dala mo yung newspaper.
So there are 2 ways
1. Official publication of the foreign law
2. Certified true copy of the law by the legal custodian
duly attested to and authenticated by the Philippine
Consulate in the country where the law is
promulgated.
The same concept when you speak of foreign divorce or
foreign judgment, the same concept as a foreign judgment of
probate of wills. You prove the foreign law etc just to make
sure that the judgment was based on the foreign law. other
than that, you also have to prove that the probate court has
jurisdiction over the subject matter of probate. So you have to
produce the foreign law on procedure and the substantive law
involved.
So these are crucial in the reprobate proceeding. You cannot
get away of proving the foreign law but take note ha of the 2
ways to prove foreign law.
In the case of Ancheta v Guersey-Dalaygon, was the
foreign law here proven? No. Petitioner (Executor) failed to
present the foreign law but applied the Philippine law for the
“best interest” of the heirs
Maam: the one who adopted the processual presumption was
the counsel himself.
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Ancheta v Guersey-Dalaygon
Facts:
Audrey and Richard are American citizens. They had an
adopted daughter named Kyle. On July 29, 1979, Audrey died,
leaving a will. In it, she bequeathed her entire estate to
Richard. The court also named Atty. Alonzo
Q. Ancheta (petitioner) of the Quasha Asperilla Ancheta Pena
& Nolasco Law Offices as ancillary administrator.
In 1981, Richard married Candelaria Guersey
Dalaygon (respondent).
On October 12, 1982, Audreys will was also admitted to
probate by the then Court of First Instance of Rizal. On July 20,
1984, Richard died, leaving a will, wherein he bequeathed his
entire estate to respondent, save for his rights and interests
over the A/G Interiors, Inc. shares, which he left to Kyle. His
will was admitted to probate in Maryland USA, and designated
Atty. William Quasha or any member of the Quasha Asperilla
Ancheta Pena & Nolasco Law Offices, as ancillary
administrator. Richards will was then submitted for probate
before the Regional Trial Court of Makati.
On October 19, 1987, petitioner filed in Special Proceeding No.
9625, a motion to declare Richard and Kyle as heirs of Audrey.
Petitioner also filed on October 23, 1987, a project of partition
of Audreys estate. Her properties were divided to Richard and
Kyle,
A project for partition with respect to the estate of Richard was
filed but this was contested by respondent. Since Richard left
his entire estate to respondent, except for his rights and
interests over the A/G Interiors, Inc, shares, then his entire
undivided interest in the Makati property should be given to
respondent.
RTC: Disapproved the project of partition insofar as it affects
the Makati property. The trial court also adjudicated Richards
entire undivided interest in the Makati property to respondent
Respondent’s argument before the CA: petitioner willfully
breached his fiduciary duty when he disregarded the laws of
the State of Maryland on the distribution of Audreys estate in
accordance with her will. Respondent argued that since Audrey
devised her entire estate to Richard, then the Makati property
should be wholly adjudicated to him, and not merely thereof,
and since Richard left his entire estate, except for his rights
and interests over the A/G Interiors, Inc., to respondent, then
the entire Makati property should now pertain to respondent.
Petitioner’s argument: he acted in good faith in submitting the
project of partition before the trial court in Special Proceeding
No. 9625, as he had no knowledge of the State of Marylands
laws on testate and intestate succession. Petitioner alleged
that he believed that it is to the best interests of the surviving
children that Philippine law be applied as they would receive
their just shares.
CA: annulled the orders of the RTC insofar as it directed the
ROD of Makati to issue a new title in the names of Richard and
Kyle as undivided owners, the transfer of the A/G shares
Ruling:
General RULE: Courts are not authorized to take judicial notice
of Foreign laws; they must be proved
While foreign laws do not prove themselves in our jurisdiction
and our courts are not authorized to take judicial notice of
them; however, petitioner, as ancillary administrator of
Audrey’s estate, was duty-bound to introduce in evidence the
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
pertinent law of the State of Maryland.
Petitioner admitted that he failed to introduce in evidence the
law of the State of Maryland on Estates and Trusts, and merely
relied on the presumption that such law is the same as the
Philippine law on wills and succession. Thus, the trial court
peremptorily applied Philippine laws and totally disregarded the
terms of Audreys will. The obvious result was that there was no
fair submission of the case before the trial court or a judicious
appreciation of the evidence presented.
How can petitioner honestly presume that Philippine laws apply
when as early as the reprobate of Audreys will before the trial
court in 1982, it was already brought to fore that Audrey was a
U.S. citizen, domiciled in the State of Maryland. As asserted by
respondent, petitioner is a senior partner in a prestigious law
firm, with a big legal staff and a large library He had all the
legal resources to determine the applicable law. It was
incumbent upon him to exercise his functions as ancillary
administrator with reasonable diligence, and to discharge the
trust reposed on him faithfully. Unfortunately, petitioner failed to
perform his fiduciary duties. The RTC failed to consider in its
decision the applicable law in distributing the estate of Audrey.
This eventually prejudiced respondent and deprived her of her
full successional right to the Makati property.
Defendant lost sight of the fact that his primary responsibility as
ancillary administrator was to distribute the subject estate in
accordance with the will of Audrey
ONeill Guersey. Considering the principle established under
Article 16 of the Civil Code of the Philippines, as well as the
citizenship and the avowed domicile of the decedent, it goes
without saying that the defendant was also duty-bound to prove
the pertinent laws of Maryland on the matter. The record
reveals, however, that no clear effort was made to prove the
national law of Audrey ONeill Guersey during the proceedings
before the court a quo.
In this case, given that the pertinent law of the State
of Maryland has been brought to record before the CA, and the
trial court in Special Proceeding No. M-888 appropriately took
note of the same in disapproving the proposed project of
partition of Richards estate, not to mention that petitioner or
any other interested person for that matter, does not dispute
the existence or validity of said law, then Audreys and Richards
estate should be distributed according to their respective wills,
and not according to the project of partition submitted by
petitioner. Consequently, the entire Makati property belongs to
respondent.
Maam: Now take note, what the law that is being applied here
is the law on INTESTACY with respect to the partition of the
estate here in the Philippines. No longer based on the will.
Art 816 of the Civil Code on processual presumption only
speaks of formalities of the will, meaning, extrinsic validity. In
this case it now goes into the apportioning of the shares of the
heirs. So, no longer extrinsic. It now refers to the successional
rights and distribution of the estate, which is substantive in
nature.
Here in the case of Ancheta, we see another reason why
foreign law on both procedural and substantive law should be
presented because the purpose of reprobate is not simply to
re-authenticate the will but to give effect of the will here in the
Philippines. How do you that? It is in accordance with the
provision of the will vis-à-vis the national law of the testator.
That is why here in the implementation of the will, there was a
deviation of the partition of the estate because it violated
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Maryland law. That cannot be allowed. When you follow
Maryland law, in so far as enforcing the will is concerned, then
that will affect the sharing of the heirs. So pati ang substantive
effect niya pati pag implement will have to jive with the foreign
law. so that is why the foreign law must be presented.
In this case, there was no presentation of the Maryland
law, how come the SC still upheld the sharing under
Maryland law?
The court (CA) took judicial notice
Maam: the court here was confronted between processual
presumption and judicial notice. As between the 2, the SC had
taken judicial notice of Maryland law. Simply because it was
included in the records of the case. So sec 24, Rule 132 was
not followed, why? Because that is the only way that you can
give effect to the terms and conditions of the will under the law
in which it was executed.
So that illustrates why our law protect as much as possible the
will. In this case, there was no proof of Maryland law but simply
because it was included in the records of the case, the SC
went ahead and apply the Maryland law, and in that case, it
allowed the partition to be made in accordance with Maryland
law. Now why is that? Because art 816 of the Civil Code gives
you the processual presumption in so far as formalities of the
wills are concerned. You prove the law of the place it was
executed or, national law or Civil Code.
Now in so far as the intrinsic validity of the will is concerned on
how to partition the estate what governs is Art 16 of the Civil
Code.
(Article 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein
said property may be found.)
So the rule is wherever the property is situated that is subject
to the law where the property is located. So if you have a
testator who made a will abroad of his properties in the
Philippines, the rule is provided in the second paragraph of Art
16. So yes the properties may be located in the Philippines and
subject to the laws of the Philippines, but it is now covered by a
last will and testament, executed by a foreign national abroad,
and that foreign will has already been probated abroad. It is
crucial to go back to the foreign law of the foreign testator
because that will govern his successional rights.
In so far as the extrinsic validity is concerned, the formalities,
the law where it was executed, or the national law of the
testator, or the civil code. But in the case of Tolete, processual
presumption applying the civil code was not applied. The policy
of the law is to give opportunity to the petitioner to present the
foreign law to give effect of the foreign will in a reprobate
proceeding.
In so far as the intrinsic validity of the will is concerned, on how
you distribute, implement and successional rights of the heirs,
it is governed by the national law of the testator. That all the
more tells you of the importance of presenting the foreign law
not only of the procedural law on the making of wills, but also
of the substantive law on the successional rights of the testator
because that will be your guide on how you distribute the
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
estate in the Philippines. This is now the exception to the rule
that the property is subject to the law on the country where it is
found. If that property is subject into a last will and testament,
then what governs as to the disposition of the property would
be the law of the foreign testator.
…
What is the effect if the will is reprobated?
Rule 77, Section 3. When will allowed, and effect thereof. — If
it appears at the hearing that the will should be allowed in the
Philippines, the shall so allow it, and a certificate of its
allowance, signed by the judge, and attested by the seal of the
court, to which shall be attached a copy of the will, shall be
filed and recorded by the clerk, and the will shall have the
same effect as if originally proves and allowed in such court.
Maam: So para din siyang will that is probated for the first time,
same effect. Although you are giving effect of the foreign
judgment, it is considered to have been probated na rin dito.
Rule 77, Section 4. Estate, how administered. — When a will
is thus allowed, the court shall grant letters testamentary, or
letters of administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate
of the testator in the Philippines. Such estate, after the
payment of just debts and expenses of administration, shall be
disposed of according to such will, so far as such will may
operate upon it; and the residue, if any shall be disposed of as
is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or
country.
(T/N: not mentioned by maam)
Intestate Proceeding
Who may file petition
Who may file a petition for intestate proceeding?
Maam: so an Interested party.
An interested party may:
1. Have the will probated, or
2. Have a foreign will reprobated, or
3. Oppose the probate or reprobate of the will, or
4. Petition for an intestate proceeding
The common denominator is that you have an interest which
may be as an:
1. Heir of the estate
2. Creditor – claimant against the estate
How do you oppose/file the petition?
Rule 79, Section 1. Opposition to issuance of letters
testamentary. Simultaneous petition for administration. —
Any person interested in a will may state in writing the grounds
why letters testamentary should not issue to the persons
named therein as executors, or any of them, and the court,
after hearing upon notice, shall pass upon the sufficiency of
such grounds. A petition may, at the time, be filed for letters of
administration with the will annexed.
Maam: There are 2 ways in which you can institute an intestate
proceeding:
1. File a petition for issuance of letters administration, or
2. File an opposition of the probate of the will, or to the
issuance of letters testamentary and pray that letters
of administration be issued instead
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So as early as in the petition probate, pwede mo na i-oppose
and at the same time pray that letters of administration be
issued in your favor or in favor another person.
For example, your ground is preterition, it is very apparent on
the face of the will that there is preterition or you are the
preterited heir, pwede mo nang hindi hintayin na matapos ang
probate proceeding, isabay mo na. pag oppose mo,
simultaneously, pray ka for the issuance of letters of
administration on the ground that the will is extrinsically void
and the proceedings should be converted to intestate
proceeding.
Now there are 2 modes provided under section 1, Rule 79:
1. If there is no will involved, a direct petition for the
issuance of letters of administration
2. When there is a will, but you have a ground to have it
declared extrinsically void on its face, then you cite
that and in your prayer you ask for the issuance of
letters of administration.
What are the contents of the petition?
Rule 79, Section 2. Contents of petition for letters of
administration. — A petition for letters of administration must
be filed by an interested person and must show, so far as
known to the petitioner:
a. The jurisdictional facts;
b. The names, ages, and residences of the heirs, and
the names and residences of the creditors, of the
decedent;
c. The probable value and character of the property of
the estate;
d. The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the issuance of
letters of administration.
Once a petition is filed in court for intestate proceeding,
what will the court do?
Rule 79, Section 3. Court to set time for hearing. Notice
thereof. — When a petition for letters of administration is filed
in the court having jurisdiction, such court shall fix a time and
place for hearing the petition, and shall cause notice thereof to
be given to the known heirs and creditors of the decedent, and
to any other persons believed to have an interest in the estate,
in the manner provided in sections 3 and 4 of Rule 76.
Maam: Here, the notice requirement for probate, reprobate and
intestate proceedings are the same. There will be publication
on the notice of hearing as well as personal notices to the
known heirs.
Once the notices have been out and published, who may
oppose the petition?
Rule 79, Section 4. Opposition to petition for
administration. — Any interested person may, by filing a
written opposition, contest the petition on the ground of the
incompetency of the person for whom letters are prayed
therein, or on the ground of the contestant's own right to the
administration, and may pray that letters issue to himself, or to
any competent person or person named in the opposition.
Maam: again, despite the publication of the notice, bringing in
the whole world as parties to the proceeding, not everyone can
oppose. Those who can oppose must show their INTEREST,
or as well as a benefit or claim against the estate.
The opposition can be grounded on the incompetency of the
petitioner or the person nominated to become an administrator
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
of the estate or on the oppositor’s better right to be appointed
as administrator of the estate.
After the notices have been out, the proper parties
notified, what will happen during the hearing?
Rule 79, Section 5. Hearing and order for letters to issue.
— At the hearing of the petition, it must first be shown that
notice has been given as hereinabove required, and thereafter
the court shall hear the proofs of the parties in support of their
respective allegations, and if satisfied that the decedent left no
will, or that there is no competent and willing executor, it shall
order the issuance of letters of administration to the party best
entitled thereto.
What is the main issue to be resolved during the hearing?
Whether the parties should be granted the letters of
administration or competent to be the administrator of the
property
When the court appoints an administrator and the other
party disagrees, what will be the remedy?
Maam: The remedy is APPEAL because an order appointing
the administrator is a final judgment. This is a proceeding
where multiple appeals are allowed. Not certiorari, file an
ordinary appeal. Because it allows multiple appeals, you will
need to file a record on appeal.
Who cannot be appointed as administrator? Who are
disqualified to appointed?
Rule 78, Section 1. Who are incompetent to serve as
executors or administrators. — No person in competent to
serve as executor or administrator who:
a. Is a minor;
b. Is not a resident of the Philippines; and
c. Is in the opinion of the court unfit to execute the duties
of the trust by reason of drunkenness, improvidence,
or want of understanding or integrity, or by reason of
conviction of an offense involving moral turpitude.
Can a judge be appointed as an administrator?
Ramos v Judge Barot
As a general rule, judges cannot serve as executor,
administrator, trustee, guardian or other fiduciary, except if he
acts in a fiduciary capacity for the estate, trust or person of a
member of his immediate family. The Code defines "immediate
family" as being limited to the spouse and relatives within the
second degree of consanguinity. Clearly, respondent's paternal
uncle does not fall under "immediate family" as herein defined.
The Code does not qualify the prohibition. The intent of the rule
is to limit a judge's involvement in the affairs and interests of
private individuals to minimize the risk of conflict with his
judicial duties and to allow him to devote his undivided
attention to the performance of his official functions.
Can a married woman be appointed as administrator?
Y E A H Z!
Rule 78, Section 3. Married women may serve. — A married
woman may serve as executrix or administratrix, and the
marriage of a single woman shall not affect her authority so to
serve under a previous appointment.
Maam: this law is sooo antiquated. Women now are
empowered \m/
When a co-executor is disqualified, will that affect the
qualification of the other co-executor? No maam.
Rule 78, Section 5. Where some coexecutors disqualified
others may act. — When all of the executors named in a will
can not act because of incompetency, refusal to accept the
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trust, or failure to give bond, on the part of one or more of
them, letters testamentary may issue to such of them as are
competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
What is the order of preference in the appointment of an
administrator?
Rule 78, Section 6. When and to whom letters of
administration granted. — If no executor is named in the will, or
the executor or executors are incompetent, refuse the trust, or
fail to give bond, or a person dies intestate, administration shall
be granted:
a. To the surviving husband or wife, as the case may be,
or next of kin, or both, in the discretion of the court, or
to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent
and willing to serve;
b. If such surviving husband or wife, as the case may be,
or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to
request that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if may be granted to one or more of
the principal creditors, if competent and willing to
serve;
c. If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
Maam: if you are going to petition for the issuance of letters of
administration, you must be one of these. This presupposes
your interest in the estate especially if you are claiming for the
letters of administration yourself. This applies to the
appointment of regular administrator.
Given that there is an order of preference, for instance the
petitioner is the surviving spouse and wants to be
appointed as administrator of the estate does that mean
that you don’t need to conduct a hearing to determine the
competency of the surviving spouse because after all the
surviving spouse enjoys preference in the appointment?
Yes. What happens if there is no hearing conducted? The
appointment is void
Baluyut v Cruz-Pano
Facts:
Sotero Baluyut died on 1975. A few weeks later, his nephew,
Alfredo G. Baluyut, filed in the CFI verified petition for letters of
administration. He alleged that the deceased was survived by
his widow, Encarnacion Lopez, who was mentally incapable of
acting as administratrix of the decedent's estate. Alfredo
surmised that the decedent had executed a will. He prayed that
he be appointed regular administrator and in the meantime as
special administrator.
Mrs.Baluyut in her verified opposition alleged that she was
unaware that her deceased husband executed a will. She
characterized as libelous the allegation as to her mental
incapacity. She prayed that she be named
administratrix and that the appointment of Alfredo G. Baluyut
as special administrator be set aside.The lower court in its
order of March 1975 cancelled Baluyut's appointment as
special administrator. In that same order the lower court noted
that after asking Mrs.Baluyut a series of questions while on the
witness stand, it found that she "is healthy and mentally
qualified"
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Ruling:
We hold that while the probate court correctly assumed that
Mrs. Baluyut as surviving spouse enjoys preference in the
granting of letters of administration, it does not follow that she
should be named administratrix without conducting a full-dress
hearing on her competency to discharge that trust.
Even the directive of the testator in his will designating that a
certain person should act as executor is not binding on the
probate court and does not automatically entitle him to the
issuance of letters testamentary. A hearing has to be held in
order to ascertain his fitness to act as executor. He might have
been fit to act as executor when the will was executed but
supervening circumstances might have rendered him unfit for
that position.
Thus, it was held that a hearing is necessary in order to
determine the suitability of the person to be appointed
administrator by giving him the opportunity to prove his
qualifications and affording oppositors a chance to contest the
petition (Matute vs. Court of Appeals, L-26106, January 31,
1969, 26 SCRA 768, 791).
In this case the probate court briefly and perfunctorily
interrogated Mrs. Baluyut in order to satisfy itself on her mental
capacity. The court did not give Alfredo G. Baluyut a chance to
contest her qualifications. He had squarely raised the issue as
to her competency. The probate court assumed that Alfredo G.
Baluyut had no interest in the decedent's estate. As it now
turned out, he is one of the legatees named in the decedent's
alleged will.
Moreover, it is necessary to convert the proceeding in the
lower court into a testamentary proceeding. The probate of the
will cannot be dispensed with and is a matter of public policy.
The lower court departed from the usual course of probate
procedure in summarily appointing Mrs. Baluyut as
administratrix on the assumption that Alfredo G. Baluyut was
not an interested party. That irregularity became more
pronounced after Alfredo G. Baluyut's revelation that the
decedent had executed a will. He anticipated that development
when he articulated in his petition his belief that Sotero Baluyut
executed wills which should be delivered to the court for
probate.
What is the purpose of the hearing?
Maam: This is to determine the suitability of the person to be
appointed as administrator by giving that person the
opportunity to prove his qualifications as well as to afford the
oppositors the chance to contest the petition.
So when ask for the issuance of letters of administration,
especially for yourself, it is like applying for a position. Ilalalgay
mo ang iyong mga credentials, qualifications mo, then submit it
in evidence to prove your suitability to act as administrator. It is
now incumbent upon the oppositors to show that you are not
suitable. Mag lalabas din sila ng ebidensya to disprove your
qualifications or other grounds to render you unfit for
appointment. Once the letters are granted, you are the
administrator and you now have the power to manage the
estate and that is a very powerful position especially if the
estate is sizeable.
Very important there is your integrity, prudence and diligence in
the management of the estate. ☺
(MCPR/ Feb 12, 2019)
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Atty: In the appointment of a regular administrator you apply
the order of preference. But the order of preference is not
dispensed with the hearing. Therefore, there is still the need to
prove the competence, suitability and fitness of the applicant
before the letters of administration (LA) can be issued.
Does the order of preference under section 6 of rule 78
applied in the appointment of a special administrator?
RULE 78 Section 6. When and to whom letters of
administration granted. — If no executor is named in the will, or
the executor or executors are incompetent, refuse the trust, or
fail to give bond, or a person dies intestate, administration shall
be granted:
a. To the surviving husband or wife, as the case may be,
or next of kin, or both, in the discretion of the court, or
to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent
and willing to serve;
b. If such surviving husband or wife, as the case may
be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to
request that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if may be granted to one or more
of the principal creditors, if competent and willing to
serve;
c. If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
The order of preference will only apply to a special
administrator.
Why does it not apply to the appointment of a special
administrator?
It does not apply to a special administrator because it is
governed by a separate section (inaudible).
Special Administrator
In what instances can the court appoint a special
administrator (SA)?
Rule 80. Section 1. Appointment of special administrator.
— When there is delay in granting letters testamentary or of
administration by any cause including an appeal from the
allowance or disallowance of a will, the court may appoint a
special administrator to take possession and charge of the
estate of the deceased until the questions causing the delay
are decided and executors or administrators appointed.
Rule 86. Section 8. Claim of executor or administrator
against an estate. — If the executor or administrator has a
claim against the estate he represents, he shall give notice
thereof, in writing, to the court, and the court shall appoint a
special administrator, who shall, in the adjustment of such
claim, have the same power and be subject to the same
liability as the general administrator or executor in the
settlement of other claims. The court may order the executor or
administrator to pay to the special administrator necessary
funds to defend such claim.
That is the only instance?
When there is an appeal in the allowance or the disallowance
of the will, the court may appoint a special administrator to take
possession and charge of the estate of the deceased.
What is the ground there for appointing a special
administrator?
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Whenever there is delay in granting letters testamentary or of
administration
So are you saying then whenever there is delay will the
special administrator be appointed by the court? Is that
the only ground provided in the rules?
NO, maam.
There is another ground? Yes maam
The other ground is found under Rule 86 the claim of the
executor or administrator against the estate. Then the court
may appoint a special administrator.
What is the extent of the appointment of the special
administrator?
Rule 86. Section 2. Powers and duties of special
adminsitrator. — Such special administrator shall take
possession and charge of the goods, chattels, rights, credits,
and estate of the deceased and preserve the same for the
executors or administrator afterwards appointed, and for that
purpose may commence and maintain suits as administrator.
He may sell only such perishable and other property as the
court orders sold. A special administrator shall not be liable to
pay any debts of the deceased unless so ordered by the court.
Rule 86. Section 3. When powers of special administrator
cease. Transfer of effects. Pending suits. — When letters
testamentary or of administration are granted on the estate of
the deceased, the powers of the special administrator shall
cease, and he shall forthwith deliver to the executor or
administrator the goods, chattels, money, and estate of the
deceased in his hands. The executor or administrator may
prosecute to final judgment suits commenced by such special
administrator
In this rule the extent of the appointment of the special
administrator is with respect to the general administrator or the
executor.
What is a co-administrator?
Uy v CA
A co-administrator performs all functions and duties and
exercises all the powers of a regular administrator, only that he
is not alone in the administration. The practice of appointing
co-administrators is not prohibited.
A co-administrator is one appointed by the court to help the
general administrator in case where the estate is large, then a
special administrator can be appointed in administering the
estate.
What happened in the case of Castillo vs Gabriel?
Heirs of Castillo vs Gabriel
Facts:
On January 25, 1989, Crisanta Yanga-Gabriel, wife of Lorenzo
B. Almoradie, died. A little over a month after Crisanta’s death,
her mother, commenced an intestate proceeding. She alleged,
her daughter’s estate was being managed by her wastrel and
incompetent son-in-law, Lorenzo, and by two other equally
incompetent persons. She prayed that letters of administration
be issued to her son, Mariano Yanga, Jr., also the brother of
the deceased, and that she be awarded her share of the estate
of her daughter after due hearing. However, the RTC
appointed Lorenzo as administrator.
Meantime, the marriage between Crisanta Yanga-Gabriel and
Lorenzo Almoradie was declared void for being bigamous. The
RTC then removed Lorenzo as administrator and appointed
Mariano, Jr. in his stead.
October 16, 1989, one Belinda Dahlia Y. Almoradie Castillo,
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claiming to be the only legitimate child of Lorenzo and
Crisanta, filed a motion for intervention.
Roberto Y. Gabriel, the legally adopted son of Crisanta Y.
Gabriel, filed before the RTC of Malabon City a petition for
probate of an alleged will and for the issuance of letters
testamentary in his favor.
June 2, 1990, Belinda Castillo died. On July 8, 1991, the
probate court appointed Roberto Y. Gabriel as special
administrator of his mother’s estate. On May 23, 2001, the
heirs of Belinda, namely, Bena Jean, Daniel, Melchor, Michael,
and Danibel, all surnamed Castillo, filed a Motion praying that
they be substituted as party-litigants in lieu of their late mother
Belinda, who died in 1990. Roberto Gabriel died. His widow,
Dolores L. Gabriel, filed a "Manifestation and Motion"[11]
where she informed the probate court of her husband’s death
and prayed that she be admitted as substitute in place of her
late husband, and be appointed as administratrix of the estate
of Crisanta Gabriel as well. She alleged that she had a
bachelor’s degree in law and had worked for several years in a
law office.
On August 14, 2001, the heirs of Belinda opposed Dolores’
manifestation and motion. They averred that Dolores was not
Crisanta Gabriel’s next of kin, let alone the lawful wife of the
late Roberto
Held: The appointment of a special administrator lies entirely in
the discretion of the court. The order of preference in the
appointment of a regular administrator under Section 6, Rule
78 of the Rules of Court does not apply to the selection of a
special administrator. In the issuance of such appointment,
which is but temporary and subsists only until a regular
administrator is appointed, the court determines who is entitled
to the administration of the estate of the decedent. On this
point, We hold that the preference of private respondent
Dolores Gabriel is with sufficient reason.
The facts of this case show that Roberto Gabriel – the legally
adopted son of Crisanta Yanga-Gabriel – survived Crisanta’s
death. When Crisanta died on January 25, 1989, her estate
passed on to her surviving adopted son Roberto. When
Roberto himself later died on April 16, 2001, pursuant to the
law on succession, his own estate which he inherited from
Crisanta passed on to his surviving widow, private respondent.
The probate court has ample jurisdiction to appoint respondent
as special administratrix. The deceased Crisanta Yanga-
Gabriel left a document purporting to be her will where her
adopted son, Roberto, was named as the sole heir of all her
properties.
However, pending probate of the will, Roberto died leaving his
widow, the respondent herein, as his sole heir. Thus, the
respondent has much stake in Crisanta’s estate in case the
latter’s will is allowed probate. It needs to be emphasized that
in the appointment of a special administrator (which is but
temporary and subsists only until a regular administrator is
appointed), the probate court does not determine the shares in
the decedent’s estate, but merely appoints who is entitled to
administer the estate. The issue of heirship is one to be
determined in the decree of distribution, and the findings of the
court on the relationship of the parties in the administration as
to be the basis of distribution. Thus, the preference of
respondent is sound, that is, not whimsical, or contrary to
reason, justice, equity or legal principle.
In the case of Castillo vs Gabriel the issue is WON the order of
preference is applicable in the appointment of a special
administrator.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Who was the administrator? Who was the special
administrator appointed here?
In this case, Crisanta Gabriel who is the wife of Lorenzo, died
leaving an estate. The mother of Crisanta instituted an estate
proceeding alleging that the estate is not properly managed by
Lorenzo. So, the mother prayed that the letters of
administration be issued in favor of Mariano, the brother of the
deceased. But the court still appointed the husband, Lorenzo.
Later, the marriage of Crisanta and Lorenzo was declared void
for being bigamous. The Lorenzo was replaced by Mariano as
administrator. Then, subsequently, Belinda, the legitimate
child of Crisanta and Lorenzo, filed a motion. Also, Roberto
Gabriel, the adopted son of Crisanta filed for the probate of will
of Cristanta and issuance of letters testamentary as
administrator Then later, Belinda died and two special
proceedings were initiated were Roberto was appointed as
special administrator of Crisanta’s estate to which Mariano file
a petition for ____ before the CA. The heirs of Belinda…
What happened to the probate of the will?
The deceased here is very famous, look at the initials, CY
Gabriel. Kaya pinagkakaguluhan ang estate niya. So there
was an intestate proceeding as well as testate proceeding. In
the intestate proceeding, who was appointed administrator?
And what happened to the testate proceeding? How many
children are involved here? How many children surfaced? The
whole family are embroiled in this controversy. And that is the
very sad thing to see. Hindi sila nagkakaintindihan pagdating
sa mana, kayamanan.
So there are two children. One adopted and one supposedly
legitimate. Then you have the mother who initiated the
intestate proceeding and the brother who was appointed as
administration after the husband who was “dethroned” as
adminiitrator. So lahat sila nagkakagulo, the husband, the
mother, the brother the two children. So you just can imagine
gaano kalagi ang estate na iyaan. At nagkakagulo silang lahat.
So much so that ilan ang namatay during the pendency of the
case, hindi pa rin tapos ang kanilang gulo. Ang daming
namatay.
One was the supposed executor the brother who predeceased
the testator who was the child, Belinda. Then the brother
Roberto namatay din. When the case reached the Supreme
Court and dami na nilang namatay at nailibing. If you look at
the case that way, nakakadismaya, to see a family so broken
apart because of money. So, there is an issue as to who
should be appointed regular administrator in view of the death
of the brother who substituted the husband. What did the court
do? The court held that the appointment of a special
administrator is discretionary.
Who is the special Administrator?
Dolores, widow of Roberto.
Can the widow of the brother of the deceased be
appointed as special administrator? Not withstanding the
fact that she had no blood relations to the deceased?
Maam: The court still upheld the appointment of Dolores
because, the special administrator there is no preference, and
such appointment is based on the discretion of the court.
So lahat sila magkakapatid, mga anak pati ang nanay ng
deceased , ang ending ang inappoint na special administrator
who is someone who has no blood relation at all. But only as
special administrator. Such appointment cannot be
questioned on the ground that there was no compliance with
the order of preference.
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Because he order of preference will not apply in the
appointment of a special administrator. Can the court appoint
here a total stranger as special administrator? Yes. Because
there is no need to follow the order of preference. In fact, even
in the order of preference pwede naman mag appoint kahit
hindi related. Pero siya nay yun pinaka last sa order of
preference.
If there are no other qualified persons that enjoy the first two
preference, pwede naman other persons. But in the
appointment of a special administrator, no need to comply with
the order of preference.
Take note in the case of Gabriel, even in the appointment of an
executor in an testate proceeding, the issuance of the letters
testamentary to the executor, the court can still appoint a
special administrator if there is delay in the issuance of the
letters testamentary and there is a need to administer the
estate then the issuance of the letters testamentary.
What is the remedy in the case of Tan vs Gregorio? What
is the remedy if there are issues raised in the appointment
of a special administrator?
The remedy is under Rule 65.
If there is an issue in the appointment of a regular
administrator, What is the remedy?
Ordinary Appeal
How about in case of a special administrator? Rule 65.
What is the ground?
That the appointment is capricious and whimsical and such is
equivalent to an excess or lack of jurisdiction.
Maam: So, your ground would be grave abuse of discretion
under Rule 65. The remedy will vary. It depends on what kind
of administrator is appointed. If it is a regular administrator and
you do not agree to the appointment, then you file an Appeal.
The order appointing a regular administrator is appealable, that
is a final order. And this is one instance where multiple
appeals are allowed. So if it a special administrator that was
appointed and you want to question that, then you can only do
so if you can show grave abuse of discretion under Rule 65.
Because the order appointing a special administrator is not a
final order, it is a mere interlocutory order. Hence, not
appealable.
Can two special administrators be appointed? One for the
exclusive propertied of the deceased, and for the conjugal
properties?
DE ROXAS v PECSON
G.R. No. L-2211 December 20, 1948
FACTS: Respondent judge rendered his resolution appointing
the petitioner Natividad I. Vda. de Roxas as special
administratrix only of all the conjugal properties of the
deceased, and Maria Roxas as special administratrix of all
capital or properties belonging exclusively to the deceased
Pablo M. Roxas.
DOES THE ORDER OF PREFERENCE APPLY TO THE
APPOINTMENT OF SPECIAL ADMINISTRATOR?
It is well settled that the statutory provisions as to the prior or
preferred right of certain persons to the appointment of
administrator under section 1, Rule 81, as well as the statutory
provisions as to causes for removal of an executor or
administrator under section 653 of Act No. 190, now section 2,
Rule 83, do not apply to the selection or removal of special
administrator. (21 Am. Jur., 833; De Gala vs. Gonzales and
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Ona, 53 Phil., 104, 106.) As the law does not say who shall be
appointed as special administrator and the qualifications the
appointee must have, the judge or court has discretion in the
selection of the person to be appointed, discretion which must
be sound, that is, not whimsical or contrary to reason, justice or
equity.
WAS THE RESOLUTION OF THE JUDGE APPOINTING
NATIVIDAD AS SPECIAL ADMINISTRATRIX ONLY AS TO
CONJUGAL PROPERTIES PROPER?
There is nothing wrong in that the respondent judge, in
exercising his discretion and appointing the petitioner as
special administratrix, had taken into consideration the
beneficial interest of the petitioner in the estate of the decedent
and her being designated in the will as executrix thereof. But
the respondent's subsequent act of appointing her as
special administratrix only of the conjugal or community
property, and Maria Roxas as special administratrix of the
capital or exclusive property of the decedent, does not
seem to be in conformity with logic or reason. The
petitioner has or claims to have the same beneficial interest
after the decision of the court disapproving the will, which is
now pending on appeal, as she had prior to it, because the
decision is not yet final and may be reversed by the appellate
court.
Besides, even if the will is not probated, the widow in the
present case would have, under the law, the right of
usufruct over one-half of the exclusive property of the
decedent, besides her share in the conjugal partnership.
The beneficial interest required as a qualification for
appointment as administrator of the estate of a decedent is the
interest in the whole estate and not only in some part thereof.
The petitioner being entitled to one-half in usufruct of all the
exclusive properties of the decedent, she would have as much
if not more interest in administering the entire estate correctly,
in order to reap the benefit of a wise, speedy, economical
administration of the state, and not suffer the consequences of
the waste, improvidence or mismanagement thereof. The good
or bad administration of the property may affect rather the fruits
than the naked ownership of a property.
However, for the decision of the question involved in this
proceeding it is not necessary for us to determine whether or
not the respondent judge has acted with grave abuse of
discretion in rendering the resolution complained of for the
reasons just stated, in view of our conclusion that the
respondent judge acted in excess of the court's
jurisdiction in appointing two separate special
administratices of the estate of the decedent: one of the
conjugal or community property and another of the capital
or exclusive property of the deceased Pablo M. Roxas.
In the case of Pecson, there can be two special administrators.
There can be? The court can appoint two special
administrators? Why?
I will change my answer. It is not allowed. In this case, there
is no need for the appointment of two administrators because it
in this case the court held if two separate administrators are
appointed in every action (inaudible) of the deceased, the
defendant may raise the question that there is no cause of
action because the property belong to the class which is being
administered by the other administrator. If there are two
administrators there will be conflict with respect to the
judgment of each administrator and the such set up it will be
more confusing on the part of the creditors, which administrator
they will file their claims.
DE ROXAS vs PECSON
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The appointment of 2 special administrators, in the case of De
Roxas vs Pecson, was illegal because it separated the
conjugal and separate property of the deceased! The court
appointed a special administrator for each. That is why it was
not allowed. But are you saying now, that just because under
the factual circumstances of Roxas vs Pecson, there can be no
2 special administrators appointed by the court? Are you
generalizing it now? There was no ruling that the court is
prohibited from 2 special administrators. It is just that, under
the factual circumstances in this case, it was an error
appointing 2 special administrators to administer the conjugal
and separate properties of the decedent.
If a special administrator is simply a temporary administrator
pending issuance of letters testamentary of for administrarion
to the regular executor/administrator, and there can be 2
executors, or 2 administrators appointed by the court, can you
not say the same for special administrators? Especially if the
estate is so vast, that a single special administrator cannot
handle everything. So, there is no prohibition!
Maam: The main reason is there is only one estate. And the
separate or the conjugal property of the deceased all belong to
one estate. So you do not appoint an administrator for each
kind of property in the estate. What is appointed is an
administrator for the estate and not for a specific properties of
the estate and that is why it would be absurd to appoint two
administrators, one for the separate property and another for
the conjugal property.
When all these separate and conjugal properties all belong to
one estate. And since only one administrator can be appointed
for one estate then it follows to appoint a special administrator
that there should only be one.
What is the purpose or function of a special
administrator? As held in the case of Pecson?
The appointment of a special administrator is temporary and
(inaudible)
So it is only temporary, it is a stop-gap measure pending the
appointment of a regular administrator. So parang, substitute
for the regular administrator. Since there is only one regular
administrator for the estate, there should only be one special
administrator.
Does it mean the, the court cannot appoint two
administrators for one estate?
The court can appoint.
Two administrators for one estate? Yes.
What are instances the court can appoint two regular
administrators?
When the estate large, a single administrator cannot properly
manage the estate. When there conflicting parties, it is more
favorable to parties to appoint two administrators to represent
each of their interests. Where a situation the court appointed
co-administrator.
When will the court appoint a co-administrator? In what
instances?
UY V CA
G.R. No. 167979 March 15, 2006
ISSUE: Whether the trial court acted with grave abuse of
discretion in appointing private respondent (brother and
creditor) as co-administrator to the estate of the deceased
together with petitioner (son)
HELD: NO
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
In the instant case, the order of preference was not
disregarded by the trial court. Instead of removing petitioner,
it appointed private respondent, a creditor, as co-administrator
since the estate was sizeable and petitioner was having a
difficult time attending to it alone. In fact, petitioner did not
submit any report regarding the estate under his
administration.
A co-administrator performs all the functions and duties and
exercises all the powers of a regular administrator, only that he
is not alone in the administration.15 The practice of
appointing co-administrators in estate proceedings is not
prohibited. In Gabriel v. Court of Appeals,16 this Court
reaffirmed that jurisprudence allows the appointment of co-
administrators under certain circumstances, to wit:
Under both Philippine and American jurisprudence, the
appointment of co-administrators has been upheld for various
reasons, viz:
(1) to have the benefit of their judgment and perhaps at all
times to have different interests represented;
(2) where justice and equity demand that opposing parties or
factions be represented in the management of the estate of the
deceased;
(3) where the estate is large or, from any cause, an
intricate and perplexing one to settle;
(4) to have all interested persons satisfied and the
representatives to work in harmony for the best interests of the
estate; and
(5) when a person entitled to the administration of an estate
desires to have another competent person associated with him
in the office
A: In the case of UY the court enumerated five instances for
the appointment of a co-administrator:
1. to have the benefit of their judgment and perhaps at
all times to have different interests represented;
2. where justice and equity demand that opposing
parties or factions be represented in the management
of the estate of the deceased;
3. where the estate is large or, from any cause, an
intricate and perplexing one to settle;
4. to have all interested persons satisfied and the
representatives to work in harmony for the best
interests of the estate; and
5. when a person entitled to the administration of an
estate desires to have another competent person
associated with him in the office.
Atty: These are the instances when a co- administrator may be
appointed by the court. Take note, that in the case of Pecson,
there should only be one administrator. Hence, there should
only be one special administrator.
Co-Administrator
In the later case of Uy vs Ca. it allows two regular
administrators be appointed under the circumstances
enumerated. What does that tell your? Which id which?
Should there be one or two when there is only one estate?
The appointment of two administrators is not prohibited.
How come in Pecson the appointment of two special
administrators are not allowed?
In that case the two administrators represented the community
property and the other for the exclusive property of the
deceased. In effect, the appointment separated the whole
estate.
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Atty: In De Roxas vs Pecson, you have one estate. There is
separate property and there is conjugal. One special
administrator for each. That is not allowed. Mali sabi ng
Supreme Court. You cannot divide the properties of the estate
into separate and conjugalmand appoint a special
administrator for each. Because they all belong to one estate.
Ang sabi ng Supreme Court in fact in the rules, you only
appoint one regular administrator, there should only be one
special administrator.
Then you have the case of UY vs CA. Pecson was decided in
1948. UY vs CA is decided in 2006. So obviously a lot has
happened since 1948. Practically, 60 years to be exact 58
years have elapsed before UY vs CA was decided by the
Supreme Court. Half a century. A lot of things have
happened. Hindi lang one regular administrator for one estate.
It can be two regular administrators for one estate. And it
provided for five instances when the court can appoint two
regular administrators or one regular administrator plus a co-
administrator. Among the instances cited:
1. benefit of their judgment
2. to represent the interest of the warring factions. If you
go back to the case of CY Gabriel, nagaway-away
lahat ng membro ng pamilya. Pwede sana yun, sino
yun faction doon, magappoint lang ang court ng
representative ng bawat isa. Then, they co-manage
or co-administer the estate. Everything would have
been resolved peaceably within the same family.
Athindi umabot ganun kagulo.
3. When the estate is so large and intricate to settle. So,
you are talking probably of hundreds of millions worth
of estate of properties, even billions worth of
properties probably. So ganun ka lala ang kanyang
assets. So hindi kakayanin talaga ng isang regular
administrator. This is so huge, so large.
4. Regular administrator need somebody with him
5. To have interested persons satisfied and the
representatives to work in harmony for the best
interests of the estate.
So ano ngayon ang pinagkaiba ng ito 2006 case to 1948 case?
Aside from the fact that what was appointed was a special
administrator for separate and conjugal properties.
The difference is that it was not allowed (1948) because it
would result to an absurd situation where you divide the estate
in accordance with the classification of the properties in the
estate. Where in fact there is only one estate.
Here (2006) it was allowed two regular administrators if
makakaway pa yang mga parties just for them to be
represented in order for them to protect the interest of the
entire estate. Walang hiwalayan na nangyari. No separation,
buo, intact ang estate. That is precisely kailangan ang two
administrators. So as not as divide and cause division in the
estate.
Ito protective ang reason (2006) ditto (1948) disallow precisely
because it tended to separate the estate where in fact there is
no reason to separate the estate. That is the whole scenario.
Half a century later, the court now allows the appointment of
co-administrators.
In appointing a co-administrator, do you follow the order
of preference? Considering they are both regular
administrators not special administrators? Co-
administrators are considered regular administrators.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
The order of preference may be disregarded. For example,
when the person is not suitable to be appointed as
administrator.
What is the definition of a co-administrator in the case of
UY?
A co-administrator performs all functions and duties and
exercises all the powers of a regular administrator, only that he
is not alone in the administration. The practice of appointing
co-administrators is not prohibited.
Atty: The same functions as a regular administrator. Do you
apply the order of preference in the appointment of a co-
administrator? What does the case of UY say?
Atty: In the case of Uy, there was at the very start one
administrator (regular). Dinagdagan lang ng another
administrator. So there is now co-administration.
So if the court will appoint a regular administrator for the first
time, then you follow all the rules. Follow all the requirements.
Hearing requirement, presentation of evidence, apply the order
of preference and when that is done, and still the estate needs
to be attended to with additional attention by another
administrator. Then that is the time, magdadag ng another
administrator.
So in the appointment of another administrator to act as co-
administrator, you do not need to follow the order of
preference. Precisely, because among the grounds that is
cited in order to justify the appointment of a co-administrator is
because another faction, the interest of the other faction to be
represented. Ano pang order of preference pinag-uusapan
natin dyan?
Or the administrator himself is saying that “I could not do it
alone. I need somebody with me.” In that sense, why do you
need to apply the order of preference when it is based on
necessity that you need to appoint another administrator.
So in the case, that is precisely what happened. Yun
additional administrator inappoint who happens to be a
creditor. So hindi na kinakailangan sundin for the appointment
of an additional administrator, who will act as co-administrator
to follow the order of preference. Afterall, the appointment of
the first administrator, sinuod naman. It was duly considered
and followed. Because it could happen that you are going to
apply the order of preference, and who enjoys the highest
preference is the surviving spouse.
Let say, surviving spouse is a trophy wife of a billionaire.
Anong alam nya sa pagpapatakbo ng business na pagkalaki-
laki? Totally helpless is the wife. So there is a need to appoint
another administrator. Sinuod mo ba ang order of preference,
it would be to the detriment of the estate. Babagsak ang
negosyo, malulugi lahat. Everything will go to waste if you just
let the surviving spouse handle it alone. So you need to
appoint a co-administrator. And it that sense, you don’t need
to apply the order of preference because you already followed
it in the appointment of the first administrator.
The question is, can the from the very start appoint two
administrators? Walang nauna. Can that be done? That is
what had happened here, special administrator sila. Kasi
nagaaway-away sila.
In this sense, the two administrators are supposed to work
together. Kahit pa they represent different factions.
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Let us take it one notch higher, let say inappoint ng court
dalawang factions to represent the two factions. Factions one
and two. They have their own interest to protect. Will that not
be counter-productive? Kasi kung anong decision noong isa,
kokontrahin ng isa. So ang ending magsusufer ang estate.
Yun isa ayaw just for the sake maka ayaw siya. He will say no
for the sake of saying no. Making it more difficult for the other
administrator to do his job. Pwede ba iyon? Of course not.
And you will know latter on why. Kahit pa they represent
different factions. They cannot perform acts that will be
detrimental for the estate.
When the court appoints a regular administrator, what is
the document issued by the court?
Letters of Administration.
What document is given the executor made in the will?
Rule 78 Section 4. Letters testamentary issued when will
allowed. — When a will has been proved and allowed, the
court shall issue letters testamentary thereon to the person
named as executor therein, if he is competent, accepts the
trust, and gives bond as required by these rules
Letters Testamentary.
If it is an administrator when there is no named executor in
the will. What will the court issue?
Atty: There are two kinds of administrators. When it is
testate, then you have the executor, then you have Letters
Testamentary. If it is testate but no executor, and the
court has to appoint an administrator, then it will be
Letters of Administration with a Will Annexed. Because
the rules are very specific.
This one will only issue to the executor named in the will.
So if the will does not mention any executor but is
nonetheless, probated Meaning, it passed probate
because it complied with all extrinsic validity of the will,
then the court has to appoint an administrator. And
instead for filing a Petition or Motion for the Issuance of
Letters Testamentary, what will be filed will be a Petition or
a Motion for the Issuance of the Letters of Administration
with a Will Annexed and there will be a determination of
who will be appointed as administrator.
And because administrator ang pinaguusapan natin dito,
then Rule 78 Section 6 will apply, the order of preference.
Now if it intestate, same, appoint an administrator but the
court will issue is Letters of Administration. Again, it will
follow the rule of preference in the appointment of
administrator.
When will the court issue the Letters Testamentary,
Letters of Administration with a Will Annexed or Letters of
Administration?
After it has been found that the executor or administrator is
competent.
That’s it? Is it automatic on the part of the court the
moment it appoints an administrator, will issue Letters of
Administration?
There is a hearing and notice is given to interested parties who
want to oppose the appointment of an administrator and
issuance of the Letters Testamentary and question the
competency of the person appointed.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
So if the appointment of the administrator is appealed, can
you issue the Letters of Administration? Pending appeal,
the court can issue the Letters of Administration?
A:
Which among these shall be issued to the special
administrator? Can you issue Letters of Administration
for a special administrator? Is there provision in the rules
that say that special administrators be issued Letters of
Administration?
Atty: When you apply the rule of preference to regular
administrators. Nandiyan ang clue, the order of
preference applicable to the appointmnet of regular
administrators and nothing in the rules that say that this
should be issued to a special administrator.
Go back to the case of CY Gabriel, it say there the new
rules have broadened the basis for the appointment of an
administrator and such appointment is allowed referring to
the appointment of a special administrator. That
appointment is allowed when there is delay granting
Letters Testamentary or administration.
Therefore, in the appointment of a regular administrator,
on appeal there can be no issuance, that will delay the
grant of Letters of Administration.
And the court can now appoint a special administrator. In
other words, when the appointment of a regular
administrator is elevated on appeal, the court cannot issue
Letters of Administration. Hindi pa settled and issue, kung
siya ba or tama ba ang appointment sa kanya as regular
administrator.
So pending appeal, no Letters of Administration will issue.
Now, assuming walang appeal, everybody quiet. The
order appointing the administrator has become final, can
the court now issue the Letters of Administration to the
appointed administrator?
Atty: NO. Because the court will have to receive the
ACCEPTANCE of the appointed administrator na YES
payag siya and the most importatnt of all is the BOND of
the administrator.
Without the bond and without the acceptance of the trust,
the Letters will also not issue. That means magaapoint ng
panibagong administrato rand court kasi hindi tinaggap ng
administrator and appointment.
Back to square one si court sinong iaapoint niya as
administrator. The Letters will only issue when there is
NO APPEAL and when there is ACCEPTANCE of the trust
and the posting of the BOND.
Now, take note in the Letters Testamentary, walang
appeal, it is okay and nagpost ng bond, of course meron
din acceptance of the trust.
If the executor does not accept the trust, refuses the trust,
then ditto siya mahuhulog as administrator na naman.
And what the court will issue is Letters of Administration
with a Will Annexed.
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So that is how it is. The issuance of the Letters will only
happen if there is acceptance of the trust and posting of
the bond.
BONDS
What is the amount of the bond?
Rule 81. Section 1. Bond to be given issuance of letters.
Amount. Conditions. — Before an executor or administrator
enters upon the execution of his trust, and letters testamentary
or administration issue, he shall give a bond, in such sum as
the court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a
true and complete inventory of all goods, chattels, rights,
credits, and estate of the deceased which shall come to his
possession or knowledge or to the possession of any other
person for him;
(b) To administer according to these rules, and, if an executor,
according to the will of the testator, all goods, chattels, rights,
credits, and estate which shall at any time come to his
possession or to the possession of any other person for him,
and from the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such dividends thereon
as shall be decreed by the court;
(c) To render a true and just account of his administration to
the court within one (1) years, and at any other time when
required by the court;
(d) To perform all orders of the court by him to be performed.
Section 2. Bond of executor where directed in will. When
further bond required. — If the testator in his will directs that
the executors serve without bond, or with only his individual
bond, he may be allowed by the court to give bond in such sum
and with such surety as the court approves conditioned only to
pay the debts of the testator; but the court may require of the
executor a further bond in case of a change in his
circumstance, or for other sufficient case, with the conditions
named in the last preceding section.
Section 3. Bonds of joint executors and administrators. —
When two or more persons are appointed executors or
administrators the court may take a separate bond from each,
or a joint bond from all.
Section 4. Bond of special administrator. — A special
administrator before entering upon the duties of his trust shall
give a bond, in such sum as the court directs, conditioned that
he will make and return a true inventory of the goods, chattels,
rights, credits, and estate of the deceased which come to his
possession or knowledge, and that he will truly account for
such as are received by him when required by the court, and
will deliver the same to the person appointed executor or
administrator, or to such other person as may be authorized to
receive them.
In the such a sum as ordered by the court.
Atty: So it will depend on the discretion of the court. In
the amount fixed by the court.
So the court has already appointed an administrator,
issued the letters or if it is an executor if the letters has
already been issued, letters testamentary has been issued
to the executor, what will happen next?
Rule 87. Section 1. Actions which may and which may not
be brought against executor or administrator. — No action
upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or
administrator; but to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien thereon,
and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him.
Section 2. Executor or administrator may bring or defend
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
actions which survive. — For the recovery or protection of
the property or rights of the deceased, an executor or
administrator may bring or defend, in the right of deceased,
actions for causes which survive.
Section 3. Heir may not sue until shall assigned — When
an executor or administrator is appointed and assumes the
trust, no action to recover the title or possession of lands or for
damages done to such lands shall be maintained against him
by an heir or devisee until there is an order of the court
assigning such lands to such heir or devisee or until the time
allowed for paying debts has expired.
Section 4. Executor or administrator may compound with
debtor. — Within the approval of the court, an executor or
administrator may compound with the debtor of the deceased
for a debt due, and may give a discharge of such debt on
receiving a just dividend of the estate of the debtor.
After the acceptance and the posting of the bond, the executor
or administrator under Rule 87 will have the powers . Under
Section 2. Executor or administrator may bring or defend
actions which survive. — For the recovery or protection of
the property or rights of the deceased, an executor or
administrator may bring or defend, in the right of deceased,
actions for causes which survive.
Agad-agad magpafile agad ng kaso and administrator?
Atty: There are different scenarios here:
1. When these Letters are issued
2. When a special administrator is appointed
So us go one by one.
Pagspecial administrator, obviously hindi maiisue and
letters. There is still a controversy on the validity of the
appointment of the regular administrator. There is delay in
the issuance Letters Testamentary or Letters of
Administration. So special administrator. What will be
required of a special administrator once appointed by the
court?
Rule 81. Section 4. Bond of special administrator. — A special
administrator before entering upon the duties of his trust shall
give a bond, in such sum as the court directs, conditioned that
he will make and return a true inventory of the goods, chattels,
rights, credits, and estate of the deceased which come to his
possession or knowledge, and that he will truly account for
such as are received by him when required by the court, and
will deliver the same to the person appointed executor or
administrator, or to such other person as may be authorized to
receive them.
Atty: Although special administrator (SA) siya that does
not dispense the requirement of the bond. The SA will
post a bond and that presupposes the acceptance of the
trust. Yun and two minimum requirements. Whether
regular administrator (RA) or SA. You have to accept the
trust and post the bond. Only then can you enter into the
trust and begin performing your duties as SA.
What are now the functions of an SA after posting the
bond and accepting the trust? What will the SA do? Kasi
nagkakagulo pa sa issuance of letters.
Take note, let us say, Juan was appointed as SA, inappeal
ni Pedro. Ayaw ni Pedro na si Juan and ma-appoint. So
hindi maiisue and letters of administration kasi may
DELAY. And remedy, SA.
Juan can actually be appointed as SA kahit pa issue yun
pagkakaapoint sa kanya as RA.
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The only requirement for him to enter the trust is post a
bond and accept the trust and begin performing the duties
of an SA.
What are the three basic duties of an SA?
Rule 80. Section 2. Powers and duties of special
administrator. — Such special administrator shall take
possession and charge of the goods, chattels, rights, credits,
and estate of the deceased and preserve the same for the
executors or administrator afterwards appointed, and for that
purpose may commence and maintain suits as administrator.
He may sell only such perishable and other property as the
court orders sold. A special administrator shall not be liable to
pay any debts of the deceased unless so ordered by the court.
Atty: So as SA is tasked to manage the property. To
administer it and that is why he has to take possession
and take charge of all goods, chattels, rights, credits, and
estate of the deceased, maintain and preserve these for
the executor or administrator that may be appointed and if
there are cases that need to be filed then he will
commence suit as well as maintain those already
commenced. If there are perishable properties, he can sell
those perishable properties with prior court order.
The same duties as a regular administrator (RA), the only
difference is that he cannot pay debts.
He has to manage, he has to maintain, he can file cases
but he cannot pay debts. Because that is a duty pertaining
to the executor or RA.
When will the duties or powers of the SA cease?
Rule 80. Section 3. When powers of special administrator
cease. Transfer of effects. Pending suits. — When letters
testamentary or of administration are granted on the estate of
the deceased, the powers of the special administrator shall
cease, and he shall forthwith deliver to the executor or
administrator the goods, chattels, money, and estate of the
deceased in his hands. The executor or administrator may
prosecute to final judgment suits commenced by such special
administrator.
Atty: The powers of a SA , his functions will stop the
moment the letters of administration or letters
testamentary has been granted. The next thing is to turn
over whatever he has done all the properties in his hands
turnover to the RA or executor.
Take note, the executor will post bond and the only
exemption when the will exempts him from posting the
bond. The bond requirement can only be dispensed with
in the case of an executor who has been exempted from
posting the bond by the testator in the last will and
testament.
In all other cases the bond is necessary for the issuance
of letters testamentary or letters of administration.
What are the conditions of the bond?
Rule 81 Section 1. Bond to be given issuance of letters.
Amount. Conditions. — Before an executor or administrator
enters upon the execution of his trust, and letters testamentary
or administration issue, he shall give a bond, in such sum as
the court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a
true and complete inventory of all goods, chattels, rights,
credits, and estate of the deceased which shall come to his
possession or knowledge or to the possession of any other
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
person for him;
(b) To administer according to these rules, and, if an executor,
according to the will of the testator, all goods, chattels, rights,
credits, and estate which shall at any time come to his
possession or to the possession of any other person for him,
and from the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such dividends thereon
as shall be decreed by the court;
(c) To render a true and just account of his administration to
the court within one (1) years, and at any other time when
required by the court;
(d) To perform all orders of the court by him to be performed.
Atty: RA and SA post bond, executor bond also unless
exempted in the will. Required the acceptance of the trust,
these two will be conditions precedent for issuance
testamentary or letters of administration.
The bond here have conditions. SA, what are the
conditions?
Rule 81 Section 4. Bond of special administrator. — A special
administrator before entering upon the duties of his trust shall
give a bond, in such sum as the court directs, conditioned that
he will make and return a true inventory of the goods, chattels,
rights, credits, and estate of the deceased which come to his
possession or knowledge, and that he will truly account for
such as are received by him when required by the court, and
will deliver the same to the person appointed executor or
administrator, or to such other person as may be authorized to
receive them.
Atty: The amount is fixed by the court. The conditions of
the bond are automatically part of the duties and functions
of the administrator. Pag hindi niya ito ginawa magiging
liable ang bond niya for not performing, for not complying
with the conditions of the bond. Gagawin talaga niya.
These form part and parcel of his duties and obligations
as administrator. In addition for the forfeiture of the
bond, pag hindi niya ito “comply”, he can be removed.
That is a ground for his removal.
As SA he will submit a true inventory of estate properties
and that is consistent with his power to take possession
and take charge of goods, chattels, rights and credits of
the deceased. All properties in the inventory, he can take
possession of those. Kaya kailangan niya magsubmit ano
yun mga specific properties of the estate, that is included
in the inventory of the estate and over which he can take
possession. Kukunin niya yun, siya ang custodian ng
mga properties. So it is just right that he makes an
inventory, a complete listing of what those properties are.
Because those properties, precisely, comprise the estate
of the deceased.
The estate as we know is a mass of property, rights and
assets of the deceased. Inventory then after take
possession, take charge of all those properties mentioned
in the inventory.
Preserve and after one year from the assumption of his
duties, render an accounting to the court or sooner as the
court may direct. He can sell perishable items if with prior
court authority. Then pag naapoint na si administrator or
na issue na ang letters testamentary or letters of
administration, turnover , deliver to the executor or
administrator.
Kung hindi niya ginawa, magiging laible and kanyang
bond coz these are conditions to the bond. Plus he can be
removed, a ground for his termination.
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What are the conditions of the bond for a regular
administrator?
Rule 81. Section 1. Bond to be given issuance of letters.
Amount. Conditions. — Before an executor or administrator
enters upon the execution of his trust, and letters testamentary
or administration issue, he shall give a bond, in such sum as
the court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a
true and complete inventory of all goods, chattels, rights,
credits, and estate of the deceased which shall come to his
possession or knowledge or to the possession of any other
person for him;
(b) To administer according to these rules, and, if an executor,
according to the will of the testator, all goods, chattels, rights,
credits, and estate which shall at any time come to his
possession or to the possession of any other person for him,
and from the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such dividends thereon
as shall be decreed by the court;
(c) To render a true and just account of his administration to
the court within one (1) years, and at any other time when
required by the court;
(d) To perform all orders of the court by him to be performed.
Atty: Basically pareho sila, inventory, accounting,
manage. The only difference is the payment of debts.
Inventory, manage and render accounting within one year
from the issuance of the letters then payment of debts.
Same thing also holds true with the executor. These are
the same conditions of the bond of an executor and an
administrator.
So the only difference with the SA is no payment of debts.
These are the duties and obligations in addition to those
cited by the Rules of Court. These are made conditions
attached to the bond. Such that paghindi mo yan ginawa
then the bond can be held liable and ground for the
removal of the executor or administrator.
Aside from delivery, meron pag performance of any court
order.
Can the two co-administrators who represent two warring
factions sabotage the management of the estate by
disagreeing with the other co-administrator. No they
cannot. Because they will post the bond.
How will the co-administrator post bond? Either jointly or
separately. The moment they are appointed as co-
administrators, they are issued letters of administration,
they are bound by these duties and they are bound to
work together in harmony in order to preserve the estate.
They cannot make decisions that will be detrimental to the
estate. That will be a ground tor their removal,
mismanagement of the estate. And the most important of
all is that, the moment they become administrators, they
take an OATH. Whether SA, RA, execute, they will take an
OATH before the court and that will make them OFFICERS
of the COURT.
So, their loyalty now first and foremost belong to the court
that appoints them and not to the factions they represent.
Probably that is the main reason they are appointed but
that is now subservient to their duties as officers of the
court whose loyalty should primarily be to the court.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Ang court ngayon ang boss nila. They cannot do things
on their own that will be detrimental to the estate. Hindi
pwedeng aayaw sila for the sake of aayaw sila making it
difficult. They will have to forsake their own personal
preferences in order to prioritize their duties as officers of
the court as administrators of the estate.
In the case of CY Gabriel lahat sila nagaway-away.
Because what they have in mind is different from what the
law contemplates of what an administrator should be.
The administrator is not there to benefit from the estate or
to take properties from the estate for their own personal
benefit. If you are appointed as administrator, it is a big
responsibility. So much rests on your shoulders. Not just
the management of the management of the estate, the
preservation of the assets of the estate, but also your
responsibility to the court. And ultimately your
responsibility to the heirs. Because once the debts have
been settled, then you have the net residue of the estate.
Then, you have to distribute that to the heirs.
So, gusto mo bang ag administrator?
Wait until pumunta tayo sa compensation ng
administrator, is it really worth it? And you will see it is not
worth it. Nagpapatayan kayong lahat dyan, ang sweldo
niyo P4.00 a day.
Just for you to get an entire picture and if you have clients
later on, nagaagawan for position of administrator. You
have to explain very well what being an administrator
entail, what are the duties and responsibilities. It is not a
bed of roses. Because you are administrator doesn’t
mean ikaw na may-ari ng estate. You have to be very
conscious of the duties and obligations attached to your
position. Medyo distinguished nga yun position as
administrator of the estate. Parang something you can be
proud of but underneath it all may kakambal yan na mga
obligations. Take note may mga periods yan: 3 months,
one year na dapat mong sundin.
All of these are found in the Rules and pay close attention
to the conditions of the bond because those are the very
crucial and important duties and functions of an
administrator as well as an executor
st
(ICFC/ Feb 16, 2019/ 1 hr)
After the court issues letters to the executor or
administrator, what will the court do next?
Rule 86. Section 1. Notice to creditors to be issued by court.
— Immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring all
persons having money claims against the decedent to file them
in the office of the clerk of said court.
Maam: Once the letters are granted, the administrator or
executor will start to perform their functions. Their main
functions are those covered in the provisions of the bond.
The court now will issue a notice to the creditors.
We have here the time? When will the court issue the
notice to the creditors?
Immediately after the granting of the letters testamentary or of
administration
Why the court will issue notice to the creditors? What will
the executor do?
Rule 86. Section 3. Publication of notice to creditors. — Every
executor or administrator shall, immediately after the notice to
creditors is issued, cause the same to be published three (3)
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weeks successively in a newspaper of general circulation in the
province, and to be posted for the same period in four public
places in the province and in two public places in the
municipality where the decedent last resided.
Rule 86. Section 4. Filing of copy of printed notice. — Within
ten (10) days after the notice has been published and posted in
accordance with the preceding section, the executor or
administrator shall file or cause to be filed in the court a printed
copy of the notice accompanied with an affidavit setting forth
the dates of the first and last publication thereof and the name
of the newspaper in which the same is printed.
What is the first thing that the executor or administrator
must do?
Rule 83. Section 1. Inventory and appraisal to be returned
within three months. — Within three (3) months after his
appointment every executor or administrator shall return to the
court a true inventory and appraisal of all real and personal
estate of the deceased which has come into his possession or
knowledge. In the appraisement of such estate, the court may
order one or more of the inheritance tax appraisers to give his
or their assistance.
What happens if he only suspects a person to have
properties belonging to the deceased or the estate, but he
is not certain. Can he include that property in the
inventory?
Rule 87. Section 6. Proceedings when property concealed,
embezzled, or fraudulently conveyed. — If an executor or
administrator, heir, legatee, creditor or other individual
interested in the estate of the deceased, complains to the court
having jurisdiction of the estate that a person is suspected of
having concealed, embezzled, or conveyed away any of the
money, goods, or chattels of the deceased, or that such person
has in his possession or has knowledge of any deed,
conveyance, bond, contract, or other writing which contains
evidence of or tends or discloses the right, title, interest, or
claim of the deceased, the court may cite such suspected
person to appear before it any may examine him on oath
on the matter of such complaint; and if the person so cited
refuses to appear, or to answer on such examination or such
interrogatories as are put to him, the court may punish him
for contempt, and may commit him to prison until he
submits to the order of the court. The interrogatories put any
such person, and his answers thereto, shall be in writing and
shall be filed in the clerk's office.
Maam: So if a person is suspected to have properties
belonging to the estate but the executor/administrator is not
that sure or certain, merely a suspicion, he has this recourse.
He can ask the court to compel this person to appear anb
answer questions. Failure to do so will render him liable for
contempt.
What is the purpose of this examination?
The purpose of this examination is for the court to obtain
information from the person for any properties belonging to the
estate.
If it is determined that it is fraudulently taken by the
deceased or concealed form the estate, what will happen
next? Can the settlement court order its return?
No. there must be a separate action
What is the purpose of Section 6, Rule 87?
Chua v Absolute Management
Oct 16, 2003
Section 6 of Rule 87 seeks to secure evidence from persons
suspected of having possession or knowledge of the properties
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
left by a deceased person, or of having concealed, embezzled
or conveyed any of the properties of the deceased.
The trial court has the inherent duty to see to it that the
inventory of the administrator lists all the properties, rights and
credits which the law requires the administrator to include in his
inventory. In compliance with this duty, the court also has the
inherent power to determine what properties, rights and credits
of the deceased the administrator should include or exclude in
the inventory. An heir or person interested in the properties of a
deceased may call the courts attention that certain properties,
rights or credits are left out from the inventory. In such a case,
it is likewise the courts duty to hear the observations of such
party. The court has the power to determine if such
observations deserve attention and if such properties
belong prima facie to the estate.
However, in such proceedings the trial court has no authority to
decide whether the properties, real or personal, belong to the
estate or to the persons examined. If after such examination
there is good reason to believe that the person examined is
keeping properties belonging to the estate, then the
administrator should file an ordinary action in court to recover
the same. Inclusion of certain shares of stock by the
administrator in the inventory does not automatically deprive
the assignees of their shares. They have a right to be heard on
the question of ownership, when that property is properly
presented to the court.
Maam: So it is merely a mode of discovery. It is simply a
means to secure evidence. It is not meant to try the issue of
ownership or possession of that particular property. Certainly it
is not for the purpose of recovery of possession or ownership
of that property. Only up to there, to secure evidence and elicit
information
Once it is made clear that indeed the property was fraudulently
taken or kept by such person or other person because it could
be that that person does not have in his possession the
property, he only has information and based on the information
that he has disclosed, it is established that there is really other
property belonging in the estate that is in the possession of
other person. On the basis of such information, the
executor/administrator can now file a SEPARATE action to
recover ownership of these properties. In the mean time, he
can include the subject property in the inventory of properties
subject to the condition that it is still to be recovered from this
person.
The administrator/executor now has basis, based on the
information disclosed or evidence taken during the
examination, to include these properties in the inventory.
When the deceased is a mortgagee, what will the
executor/administrator do in so far as the mortgage lien of
the estate is concerned?
Rule 87. Section 5. Mortgage due estate may be foreclosed.
— A mortgage belonging to the estate of a deceased person,
as mortgagee or assignee of the right or a mortgage, may be
foreclosed by the executor or administrator.
Maam: The mortgage credit itself in an asset of the estate. It
can be included (in the inventory) without the filing of an action.
Diba receivable? Kasama yan sa asset mo.
If there is the failure to pay on such credit, he may foreclose
(judicial or extrajudicial)
Does the executor/administrator need to secure court
approval for such foreclosure?
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Maam: There is no need. Trabaho yan ng
administrator/executor to collect the utang so that it can be
included in the properties of the estate. So he can foreclose
without need of court approval.
When properties of the estate are in the possession of
other persons and when these properties earn income, the
extent of which is not known, What will the executor/
administrator do? If the properties of the estate earned
income, those included in the inventory are earning
income, what will the administrator do to the income?
Rule 85. Section 1. Executor or administrator chargeable with
all estate and income. — Except as otherwise expressly
provided in the following sections, every executor or
administrator is chargeable in his account with the whole of the
estate of the deceased which has come into his possession, at
the value of the appraisement contained in the inventory; with
all the interest, profit, and income of such estate; and with the
proceeds of so much of the estate as is sold by him, at the
price at which it was sold.
What may not be included in the inventory?
Rule 83. Section 2. Certain article not to be inventoried. —
The wearing apparel of the surviving husband or wife and
minor children., the marriage bed and bedding, and such
provisions and other articles as will necessarily be consumed
in the substinence of the family of the deceased, under the
direction of the court, shall not be considered as assets, nor
administered as such, and shall not be included in the
inventory.
Who will shoulder the expenses in the care, settlement
and management of the estate?
The estate.
Rule 88. Section 3. Personalty first chargeable for debts, then
realty. — The personal estate of the deceased not disposed of
by will shall be first chargeable with the payment of debts and
expenses; and if said personal estate is not sufficient for tat
purpose, or its sale would redound to the detriment of the
participants for the estate, the whole of the real estate not
dispose of by will, or so much thereof as is necessary, may be
sold, mortgaged, or otherwise encumbered for that purpose by
the executor or administrator, after obtaining the authority of
the court therefor. Any deficiency shall be met by contributions
in accordance with the provisions of section 6 of this rule.
What is the compensation of the administrator/executor?
Rule 85. Section 7. What expenses and fees allowed executor
or administrator. Not to charge for services as
attorney. Compensation provided by will controls unless
renounced. — An executor or administrator shall be allowed
the necessary expenses the care, management, and
settlement of the estate, and for his services, four pesos per
day for the time actually and necessarily employed, or a
commission upon the value of so much of the estate as comes
into his possession and is finally disposed of by him in the
payment of debts, expenses, legacies, or distributive shares, or
by delivery to heirs or devisees, of two per centum of the first
five thousand pesos of such value, one per centum of so much
of such value as exceeds five thousand pesos and does not
exceed thirty thousand pesos, one-half per centum of so much
of such value as exceed one hundred thousand pesos.
But in any special case, where the estate is large, and the
settlement has been attended with great difficulty, and has
required a high degree of capacity on the part of the executor
or administrator, a greater sum may be allowed. If objection to
the fees allowed be taken, the allowance may be re-examined
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
on appeal.
If there are two or more executors or administrators,
the compensation shall be apportioned among them
by the court according to the services actually
rendered by them respectively.
When the executors or administrator is an attorney,
he shall not charge against the estate any
professional fees for legal services rendered by him.
When the deceased by will makes some other
provision for the compensation of his executor, that
provision shall be a full satisfaction for his services
unless by a written instrument filed in the court he
renounces all claim to the compensation provided by
the will.
What are the kinds of compensation that the administrator/
executor can get?
1. Daily wage of P4 (not feasible)
2. Commission basis (not feasible)
3. Amount fixed by the parties
What happens if the will provides the manner of
compensating the executor?
Rule 85. Sec 7. Xxx When the deceased by will makes some
other provision for the compensation of his executor, that
provision shall be a full satisfaction for his services unless by a
written instrument filed in the court he renounces all claim to
the compensation provided by the will.
nd
(MEC/ Feb 16, 2019/2 hr)
Who are entitled to receive allowance from the estate and
who should give them the allowance?
Executor, administrator and the heirs (widow and minor or
incapacitated children of a deceased person)
Rule 83, Section 3. Allowance to widow and family. — The
widow and minor or incapacitated children of a deceased
person, during the settlement of the estate, shall receive
therefrom, under the direction of the court, such allowance as
are provided by law.
If the children are no longer minor or incapacitated, are
they still entitled for an allowance? YES
SANTERO VS CFI OF CAVITE
The controlling provision of law is not Rule 83, Sec. 3 of the
New Rules of Court but Arts. 290 and 188 of the Civil Code
reading as follows:
Art. 290. Support is everything that is indispensable for
sustenance, dwelling, clothing and medical attendance,
according to the social position of the family.
Support also includes the education of the person entitled to be
supported until he completes his education or training for some
profession, trade or vocation, even beyond the age of majority.
Art. 188. From the common mass of property support shall be
given to the surviving spouse and to the children during the
liquidation of the inventoried property and until what belongs to
them is delivered; but from this shall be deducted that amount
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received for support which exceeds the fruits or rents
pertaining to them.
The fact that private respondents are of age, gainfully
employed, or married is of no moment and should not be
regarded as the determining factor of their right to allowance
under Art. 188. While the Rules of Court limit allowances to the
widow and minor or incapacitated children of the deceased, the
New Civil Code gives the surviving spouse and his/her children
without distinction.
Since the provision of the Civil Code, a substantive law, gives
the surviving spouse and to the children the right to receive
support during the liquidation of the estate of the deceased,
such right cannot be impaired by Rule 83 Sec. 3 of the Rules of
Court which is a procedural rule. Be it noted however that with
respect to "spouse," the same must be the "legitimate spouse"
(not common-law spouses who are the mothers of the children
here).
Ma’am:
Allowance here is synonymous to support. The law on
support under the FC will govern such that even if the
children are already of age and are not incapacitated, they
are still entitled to allowance of support during the
pendency of the settlement proceeding. There is no
qualification under the law. Substantive law will prevail
over procedural law.
Can a common law spouse be entitled to allowance?
NO. With respect to "spouse," the same must be the "legitimate
spouse" (not common-law spouses who are the mothers of the
children here).
Can the common law spouse use the provisions of Article
148 to claim for support in a TPO petition?
Ma’am: NO. In Article 148, persons who are not
capacitated to marry each other are considered as co-
owners for the property they have acquired with each
other.
If you want to ask for a share in the business with you
common law spouse, you have to first establish the fact of
co-ownership because it is not automatic under Article
148. You have to show actual contribution and that should
not be ventilated in a TPO petition. You have to file a
separate case. A TPO proceeding is a summary
proceeding. So the remedy should be, she has to file an
action for partition to establish the fact of co-ownership.
The law on support is very strict. Under the law, it must be
legal support. There has to be a law that entitles that
person for support.
Support is also very technical, you have to check on the
law of support before you can demand for it whether in an
TPO or in a direct action for support or in a settlement
proceeding.
Can illegitimate children be entitled for allowance/support
under the settlement proceeding?
YES. The law does not distinguish.
How about grandchildren? NO.
RUIZ VS CA
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Be that as it may, grandchildren are not entitled to provisional
support from the funds of the decedent's estate. The law
clearly limits the allowance to "widow and children" and does
not extend it to the deceased's grandchildren, regardless of
their minority or incapacity. It was error, therefore, for the
appellate court to sustain the probate court's order granting an
allowance to the grandchildren of the testator pending
settlement of his estate
If the administrator hires a lawyer, who pays for the
lawyer?
The administrator who is the client.
If the administrator himself is a lawyer, can he send a bill
for the services he rendered with the estate?
Sec 7, Rule 85, when the executors or administrator is an
attorney, he shall not charge against the estate any
professional fees for legal services rendered by him.
Ma’am: If you are hired by the administrator, you should
know who to bill. You don’t bill the estate. You bill the
heirs or administrator that hired you.
When is the administrator required to render an
accounting?
Section 8. When executor or administrator to render account.
— Every executor or administrator shall render an account of
his administration within one (1) year from the time of receiving
letters testamentary or of administration, UNLESS the court
otherwise directs because of extensions of time for presenting
claims against, or paying the debts of, the estate, or for
disposing of the estate; and he shall render such further
accounts as the court may require until the estate is wholly
settled.
So, you have 3 months inventory, 1 year accounting.
After he has made his accounting, what happens to the
accounting made?
Section 9. Examinations on oath with respect to account —
The court may examine the executor or administrator upon
oath with respect to every matter relating to any account
rendered by him, and shall so examine him as to the
correctness of his account before the same is
allowed, except when no objection is made to the allowance of
the account and its correctness is satisfactorily established by
competent proof. The heirs, legatees, distributees, and
creditors of the estate shall
have the same privilege as the executor or administrator of
being examined on oath on any matter relating to an
administration account.
What should be contained in an accounting?
Ma’am: the rules does not specify a technical document.
What is merely stated is to render an accounting. That
does not necessarily mean that you have to account for
what happened to the estate and all properties of the
estate within the 1 year period.
What is the basis? The property in the inventory. So, all
the properties enumerated in the inventory, you have to
explain to the court what happened to those. Income, Sale,
debts paid, expenses, allowance given to the spouses and
children, repairs and maintenance – how much.
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IF the estate is huge and comprises of several businesses
and each business has its own audited Financial
Statements (FS), then attach all the FS and make a
summary of the businesses covered. That is part of the
income and expenses.
This accounting is scrutinized because you cannot submit
this document and -that’s it!- it has to be approved by the
court after it has examined the administrator or executor
on the correctness of the accounting. So the court will
now check the accuracy and correctness of all the entries
that you have made in your accounting before it approves
it. The court can also ask the heirs to testify.
It is not only the court that can ask questions but also the
heirs. So the lawyer should defend whatever he put into
the accounting otherwise, those items will be excluded.
If there is no objection, the court can approve it. If there is,
some items will be removed.
Aside from the heirs, who else should be present during
that hearing for the examination on the accounting of the
administrator?
Legatees, Distributees, Creditors, Surety of the bond given by
the administrator or executor
They need to be there because at the end of the day, they
will only receive the residue of the estate and check if the
expenses reported are legitimate, if not tanggalin, because
it would be detrimental to them later on, if wala ng matira
for them for distribution.
Also, the Surety of the bond given by the administrator or
executor may be present because the recognition of the
accounting is one of the conditions of the bond. Pag may
problema sa accounting, the bond can be held liable. So,
in that sense, the surety is an interested party in so far as
the accounting is concerned.
What are the grounds for the removal of the executor or
administrator?
1. Neglects to render his account and settle the estate
according
to law;
2. Or to perform an order or judgment of the court, or a duty
expressly provided by these rules,
3. Absconds
4. Becomes insane,
5. Otherwise incapable or insuitable to discharge the trust
Section 2. Court may be remove or accept resignation of
executor or administrator. Proceeding upon death, resignation,
or removal. — If an executor or administrator neglects to
render his account and settle the estate according to law, or to
perform an order or judgment of the court, or a duty expressly
provided by these rules, or absconds, or becomes insane, or
otherwise incapable or insuitable to discharge the trust, the
court may remove him, or in its discretion, may permit him to
resign. When an executor or administrator dies, resign, or is
removed the remaining executor or administrator may
administer the trust alone, unless the court grants letters to
someone to act with him. If there is no remaining executor or
administrator, administration may be to any suitable person
What will happen next?
There will be a replacement.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Supposing there are 2 executors/administrators, and one
is removed, can the other one continue without appointing
another?
The remaining co-executor or administrator may administer the
property unless the court grants that there will someone to act.
Supposing during the (intestate) settlement proceeding, a
will is discovered, will that be a ground to remove the
administrator who is not appointed? What will happen to
him? What should the court do?
Ma’am: The Letters of Administration will not be revoked
simply by the discovery of the will. It must be probated
first. (Rule 82, Section 2 or 1)
Because all you know, it might not pass probate. Malay
mo, intrinsically void pala. But if it is probated, then that is
the time that the letters will be revoked and letters
testamentary will be issued to the named person. Then the
administrator will now turn over the estate to the executor
who will continue to manage the estate and implement the
last will and testament.
When you probate a will, it will take years. In that period of
time that you are probating the will, what will happen to
the estate, intestate proceeding? Will the intestate
proceeding be converted to estate proceeding?
There is no clear statement of rule that you can cite here.
BUT since the LOA is not revoked as the will as not yet
been probated, it follows that the administrator will
continue to manage the estate. Status quo. Pero
pino.probate na ng intestate court. In a way, the court is
now converted into a probate court to determine the
extrinsic validity of the will.
Can you suspend the intestate proceeding? Will that be
the best recourse?
Xxx
After the grant of the letters, 2 things will happen.
1. executor/administrator – issue/submit inventory
within 3 months. It should not wait for the court to
direct him to submit inventory. It’s part of his job.
2. court – Immediately after granting letters
testamentary or of administration, the court shall
issue a notice requiring all persons having money
claims against the decedent to file them in the office
of the clerk of said court.
What does the notice to creditors contain?
Ma’am: The notice is basically to require all persons who
have claims against the estate to file their claims with the
Clerk of Court.
When do they file the case?
Rule 86, Section 2. Time within which claims shall be filed. —
In the notice provided in the preceding section, the court shall
state the time for the filing of claims against the estate, which
shall not be more than twelve
(12) not less than six (6) months after the date of the first
publication of the notice. However, at any time before an order
of distribution is entered, on application of a creditor who has
failed to file his claim within the previously limited, the court
may, for cause shown and on such terms as are equitable,
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allow such claim to be filed within a time not exceeding one (1)
month.
What is the deadline?
It shall not be more than twelve (12) not less than six (6)
months after the date of the first publication of the notice.
However, at any time before an order of distribution is entered,
on application of a creditor
who has failed to file his claim within the previously limited, the
court may, for cause shown and on such terms as are
equitable, allow such claim to be filed within a time not
exceeding one (1) month.
How will this notice to creditors be served?
Section 3. Publication of notice to creditors. — Every executor
or administrator shall, immediately after the notice to creditors
is issued, cause the same to be published three (3) weeks
successively in a newspaper of general circulation in the
province, and to be posted for the same period in four public
places in the province and in two public places in the
municipality where the decedent last resided.
rd
(AD/Feb 16, 2019/3 hr)
Q: Can the court say file your claim not later than Feb. 14,
2020?
A: In that case, it’s more than 12 months, it’s not xxx.
ATTY: So, among these dates, this is the valid one. You
cannot impose the deadline because these first 2 fall short of
the 6 MONTHS after first publication. This one sumobra naman
12 months after publication. Among the dates, eto lang ang
pasok.
So the notice to the creditors will stay the deadline for the filing
of claims with the clerk of court. The reckoning point is the first
publication, and guided by this: not later than 6 months nor
more than 12 months from first publication. It is between those
periods.
So the court will just choose a date, and the creditors will be
guided by those dates within which to file their claims.
Q: Who will attest to the fact of publication, particularly the
first publication of the notice? Who will cause the
publication?
A: It is the executor or administrator.
Q: What proof will be submitted to show the fact of
publication?
A:
Rule 86, Section 4. Filing of copy of printed notice. —
Within ten (10) days after the notice has been published and
posted in accordance with the preceding section, the executor
or administrator shall file or cause to be filed in the court a
printed copy of the notice accompanied with an affidavit setting
forth the dates of the first and last publication thereof and the
name of the newspaper in which the same is printed.
Q: What claims are covered by the notice to creditors?
A: All claims for money against the decent, arising from
contract, express or implied, whether the same be due, not
due, or contingent, all claims for funeral expenses and expense
for the last sickness of the decedent, and judgment for money
against the decent.
Rule 86, Section 5. Claims which must be filed under the
notice. If not filed, barred; exceptions. — All claims for money
against the decent, arising from contract, express or implied,
whether the same be due, not due, or contingent, all claims for
funeral expenses and expense for the last sickness of the
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
decedent, and judgment for money against the decent, must
be filed within the time limited in the notice; otherwise they are
barred forever, EXCEPT that they may be set forth as
counterclaims in any action that the executor or administrator
may bring against the claimants. Where an executor or
administrator commences an action, or prosecutes an action
already commenced by the deceased in his lifetime, the debtor
may set forth by answer the claims he has against the
decedent, instead of presenting them independently to the
court as herein provided, and mutual claims may be set off
against each other in such action; and if final judgment is
rendered in favor of the defendant, the amount so determined
shall be considered the true balance against the estate, as
though the claim had been presented directly before the court
in the administration proceedings. Claims not yet due, or
contingent, may be approved at their present value.
ATTY: All money claims against the estate. You file it within the
deadline. So, due or not due, file it within the deadline. If it is
contingent, file it within the deadline. If it is based on an implied
contract, file. Express contract, file. All of these are covered. In
fact, it includes funeral expenses.
So these debts/claims, they have been incurred by the
decedent. Kaya yung mga creditors, di nila masisingil ang
heirs, they enforce it against the estate before the settlement
court.
That is why we go back to the basic, if the estate has no debts,
extrajudicial ka. Magkakaroon ka lang ng judicial settlement if
there are debts, eto na yun. This is the meat of the settlement
proceedings. This is the crucial stage of the settlement
proceeding, this is where you will settle all claims against the
estate.
Take note, the funeral expenses are incurred after the death.
Last illness--- just before he died. So, mga hospital expenses
ito. Covered yan sa money claims. So, if the hospital is unpaid,
then the hospital will have to file a money claim against the
estate under the notice to creditors within the deadline set by
the court. This deadline is what you call THE STATUTE OF
NON-CLAIMS.
Q: What is the statute of non-claims?
ATTY: It is the definite period within which to file the claim.
Otherwise, you will be barred from claiming. This is the
deadline. Very important itong date that is stated in the notice
to creditors. All claims not filed within this deadline, they are
barred forever.
That is why it is important that this notice is published. It will
bind the whole world so everyone will know.
Q: Is there an instance where a claim that is not filed
within the statute of non-claims may be entertained?
A: However, at any time before an order of distribution is
entered, on application of a creditor who has failed to file his
claim within the previously limited, the court may, for cause
shown and on such terms as are equitable, allow such claim to
be filed within a time not exceeding one (1) month. (Sec.2)
ATTY: So, it (tardy claims) can still be entertained before
distribution. But you need to show good cause bakit ka na-late
pag-file. You must satisfy the court so that you may be allowed
to file your claim.
Q: What if the debt has already been recognized in the
will? Do you still need to file within the statute of non-
claims?
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A: If it is already recognized in the will, the statute of non-
claims should still be followed because it is mandatory.
ATTY: So, the recognition of the debt in the Will will not
dispense the claimant from the filing of the claim within the
statute of non-claims.
So, if nag kumpyansa siya sa will kasi recognized na siya, and
hindi siya nag file, barred pa rin siya. No excuse. For as long
as the claim is arising from contract, express or implied,
whether the same be due, not due, or contingent, and hindi
siya nag file, BARRED siya even if it is recognized. It has to be
filed within the statute of non-claims.
What else? What are the other exceptions where you can
still enforce your money claims even though you did not
file it within the statute of non-claims?
EXCEPTIONS:
• Tardy claims upon the showing of good cause
(already mentioned above);
• Claims that may be set forth as counterclaims in any
action that the executor or administrator may bring
against the claimants;
• Where the executor or administrator commences an
action or prosecutes an action already commenced by
the deceased in his lifetime;
• Solidary obligations; and
• Mortgage debt due from the estate provided in Sec.7.
If the money claim is secured by a mortgage, so you have
a mortgagee-creditor who has a claim against the estate,
what is his remedy?
A:
Rule 86, Section 7. Mortgage debt due from estate. — A
creditor holding a claim against the deceased secured by
mortgage or other colateral security, may abandon the security
and prosecute his claim in the manner provided in this rule,
and share in the general distribution of the assets of the estate;
or he may foreclose his mortgage or realize upon his security,
by action in court, making the executor or administrator a party
defendant, and if there is a judgment for a deficiency, after the
sale of the mortgaged premises, or the property pledged, in the
foreclosure or other proceeding to realize upon the security, he
may claim his deficiency judgment in the manner provided in
the preceding section or he may rely upon his mortgage or
other security alone, and foreclosure the same at any time
within the period of the statute of limitations, and in that event
he shall not be admitted as a creditor, and shall receive no
share in the distribution of the other assets of estate; but
nothing herein contained shall prohibit the executor or
administrator from redeeming the property mortgaged or
pledged, by paying the debt for which it is held as security,
under the direction of the court, if the court shall adjudge it to
be for the best interest of the estate that such redemption shall
be made.
ATTY: So, the mortgagee-creditor has 3 options against the
estate:
1. He can abandon the security and file his claim within
the statute of non-claims; OR
2. He can foreclose judicially and any deficiency
judgment will be filed as a claim against the estate;
OR
3. Abandon all the recourse with the settlement
proceeding and extrajudicially foreclose on the
property mortgaged, in that regard, he will be entitled
to deficiency judgment.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
In cases of foreclosure, who will be entitled to exercise the
right of redemption?
A: It will be the administrator or executor.
ATTY: Take note, in foreclosure there is redemption.
If JUDICIAL FORECLOSURE--- Equity of Redemption within
90 to 120 days to pay in full (Rule 68);
If EXTRAJUDICIAL FORECLOSURE--- Right of Redemption
within 1 year.
Who will exercise these rights? The executor or administrator.
When the money claim is CONTINGENT, or not yet due,
how will you value these claims?
A: Claims not yet due, or contingent, may be approved at their
present value.(last sentence, Sec.5, R86)
What will the court do with such claims?
Rule 88, Section 5. How contingent claim becoming absolute
in two years allowed and paid. Action against distributees later.
— If such contingent claim becomes absolute and is presented
to the court, or to the executor or administrator, within two (2)
years from the time limited for other creditors to present their
claims, it may be allowed by the court if not disputed by the
executor or administrator and, if disputed, it may be proved
and allowed or disallowed by the court as the facts may
warrant. If the contingent claim is allowed, the creditor shall
receive payment to the same extent as the other creditors if the
estate retained by the executor or administrator is sufficient.
But if the claim is not so presented, after having become
absolute, within said two (2) years, and allowed, the assets
retained in the hands of the executor or administrator, not
exhausted in the payment of claims, shall be disturbed by the
order of the court to the persons entitled to the same; but the
assets so distributed may still be applied to the payment of the
claim when established, and the creditor may maintain an
action against the distributees to recover the debt, and such
distributees and their estates shall be liable for the debt in
proportion to the estate they have respectively received from
the property of the deceased.
ATTY: Contingent claimants are required to file their claims
within the statute of non-claims.
What happened in the case of Hilado vs. CA? Was the
contingent claimant here allowed to participate in the
estate?
A: He
Is he covered by the Statute of Non-Claims? Not covered.
WHY?
ATTY: It is because the claim was not a money claim based on
contract. It is not yet due because it is a pending tort action.
The basis of the claim is QUASI-DELICT, not contract.
Under the law, what are the sources of obligations? Law,
Contracts, Quasi-contracts, Delicts and Quasi-delicts.
What is covered by the Statute of Non-claims are
CONTRACTUAL OBLIGATIONS. Not quasi-delict, not based
on crimes.
That’s what happened in the case of Hilado. Hindi siya kasali.
Anong hinihingi niya sa court diyan? Ano yung hiningi niya
from the settlement court na ibigay sa kanya? To render an
inventory, submit an account, be furnished copies of the
proceeding, etc. Technically, he wants to be part of the
proceeding. Gusto niyang maging party to the proceeding.
Sabi ng court, NO. Hindi ka kasali kasi ang claim mo is not
based on contract. You have no right to demand anything from
the administrator or executor. Hindi ka party in interest in this
case, hindi ka rin pwede na bigyan ng copy ng orders and
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pleadings kasi hindi ka interested party kasi tort ang iyong
claim.
If you are a creditor, you have to distinguish: is it money claim
based on contract? Then, yes you can participate pagdating na
sa filing of claims. And if walang mag initiate ng settlement
proceeding, you can in fact initiate as a creditor. But if your
claim is based on a tort action or quasi delict, hindi pa nga
tapos ang kaso, so CONTINGENT pa ang claim mo, di ka pa
sure manalo. It may or may not happen. PWEDE or HINDI
PWEDE. Kasi depende yan ano yung outcome ng kaso. If that
is a tort action and contingent pa, mas lalong wala kang
personality to demand anything from the settlement court, as
well as from the executor or administrator. Hindi siya interested
party.
Rather, the court only said, ‘you are only allowed access to
records.’ Pwede ka lang sumingit-singit kung ano ang
nangyayari, pwede mo tingnan ang records. Pwede mo i-
photocopy. But you cannot be given notices. You cannot be
filing pleadings and actively participate because you are not a
contingent claimant contemplated by the rules who is covered
by the Statute of Non-claims.
If an action is commenced and the defendant dies, does that
terminate the proceedings? No. At kung may judgment na yun,
yun na yung ifi-file mo dito. Judgment debts. Only after you
obtain the judgment, saka kana mag fi-file dito especially
money claims.
E eto, tort ito eh, quasi-delict. Sabi sa Hilado, di ka kasali sa
Statute of Non-claims. Does that mean he cannot enforce
whatever favourable decision he may obtain from this tort
action? Let’s say later on, naging pabor? Sino pababayarin
niya dito? The Estate?
So, this is where you distinguish an action that does not
survive, money claims that do not survive, and action that
survive.
An action based on quasi-delict is an action that survives, kaya
hindi siya kasali sa Statute of Non-claims. (Claims under the
statute of non-claims are actions that do not survive).
Independently he can pursue his action outside of the
settlement proceedings. That is what is meant by action that
survives.
Actions that do not survive pertains to money claims based on
contract, due or not due, contingent, including funeral expense
and judgment debts that must be filed within the Statute of
Non-claims which cannot be independently enforced outside
the settlement proceedings. Yan ang ibig sabihin ng actions
that do not survive. Ibig sabihin, wala kang choice, kung
walang settlement proceedings, hindi mo yan ma-ke-claim.
Kaya nga under the rules, the creditor who has money claims
based on contract, wala silang choice na kung walang mag-
iinstitute ng settlement proceedings, sila ang mag iinstitute.
That is the only way that they can be paid, because these are
actions that do not survive. They cannot file a separate case
outside of the settlement proceeding to have their claims
settled.
Whereas, in an action that survives like tort action, you can
pursue this in a separate proceeding. Kaya si Hilado, walang
personality to participate in that settlement proceeding kasi
meron na siyang independent action.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
Kaya sabi ng court, ‘sige, you can access nlng the records’ but
you cannot be part of the proceeding when you already have
an independent tort action. The nature of that action is one that
survives.
Di naman siya money claim based on contract, it is money
claim based on torts. It does not fall under this category: claims
that do not survive and so must be filed within the statute of
non-claims.
FT: Allowing creditors, contingent or otherwise,
access to the records of the intestate proceedings is
an eminently preferable precedent than mandating the
service of court processes and pleadings upon them.
In either case, the interest of the creditor in seeing to
it that the assets are being preserved and disposed of
in accordance with the rules will be duly satisfied.
Acknowledging their right to access the records,
rather than entitling them to the service of every court
order or pleading no matter how relevant to their
individual claim, will be less cumbersome on the
intestate court, the administrator and the heirs of the
decedent, while providing a viable means by which
the interests of the creditors in the estate are
preserved. (Hilado v. CA)
Other than tort actions, ano pa yung actions that survive?
A: (student read R87, Sec.1)
Rule 87, Sec.1: Actions which may and which may not be
brought against executor or administrator.- No action upon a
claim for the recovery of money or debt or interest thereon
shall be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest
therein, from the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to person or property,
real or personal, may be commenced against him.
ATTY: Accion Reinvindicatoria (recovery of real property),
Accion Publiciana (recovery of possession), Foreclosure..
Basically, these are real actions. These are not actions for
money claims based on contract. Hindi ito pera-pera lang,
recovery of property talaga ito, plus quasi delict.
So, these are actions that survive. Meaning to say, if your claim
against the estate is not money claim and not based on
contract, let’s say implied trust or recovery of ownership of
property based on implied trust, you do not file it ‘there’. You
file a separate action because it is a claim that survives.
So, if sinabing ‘survive’, hindi yung namatay. This is not
connected with any death. The ‘survive’ here means it can
survive independent of the settlement proceeding. Mabubuhay
siya kahit walang settlement proceeding. Ma-pu-pursue mo
yan, it can be decided based on the merits independent and
separate from the settlement proceeding. That is what is meant
by an action that survives.
When you say ‘actions that do not survive’, it can only be
enforced within the settlement proceedings.
Now you know why, kung may utang, kailangan ng judicial
settlement proceeding. This is the only way that you can be
paid as claimant if your money claim is based on contracts.
Walang ibang proceeding ang pwedeng gawin para
mabayaran ka. Eto lang talaga kaya nga hindi siya mag su-
survive. That is the reason bakit judicial settlement proceeding
if may utang, especially if the utang is money claims based on
contract. OR, judgment debts. Let’s say si Hilado, at the time of
settlement proceeding may favourable judgment na siya sa
action niya, may judgment debt na in his favour. Obviously,
hindi siya pwede mag pursue ng independent action, right?
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That would be res judicata. Uulitin niya? Of course not. All he
has to do is file it here. Then, he is covered by the Statute of
Non-claims. Pero if hindi pa naka file ang action, or pending pa
ang action, hindi siya pwede makigulo. He can pursue it
independently outside of the settlement court.
That in a nutshell is how you distinguish actions that survive/
claims that survive vis-à-vis claims that do not survive. What
are the basis of the claims and how you’re able to determine
the survival of these claims based on the nature of the claims.
Kailangan mo i-scrutinize yan.
So, money claims based on contract- no other choice; file for
settlement proceedings within the statute of non-claims.
Otherwise, it will be barred forever.
FILING OF CLAIMS
Q: Ano yung form ng claim? How do you file your claim?
Rule 86, Section 9. How to file a claim. Contents thereof.
Notice to executor or administrator. A claim may be filed by
delivering the same with the necessary vouchers to the clerk of
court and by serving a copy thereof on the executor or
administrator. If the claim be founded on a bond, bill, note, or
any other instrument, the original need not be filed, but a copy
thereof with all indorsements shall be attached to the claim and
filed therewith. On demand, however, of the executor or
administrator, or by order of the court or judge, the original
shall be exhibited, unless it be list or destroyed, in which case
the claimant must accompany his claim with affidavit or
affidavits containing a copy or particular description of the
instrument and stating its loss or destruction. When the claim is
due, it must be supported by affidavit stating the amount justly
due, that no payments have been made thereon which are not
credited, and that there are no offsets to the same, to the
knowledge of the affiant. If the claim is not due, or is
contingent, when filed, it must also be supported by affidavits
stating the particulars thereof. When the affidavit is made by a
person other than the claimant, he must set forth therein the
reason why it is not made by the claimant. The claim once filed
shall be attached to the record of the case in which the letters
testamentary or of administration were issued, although the
court, in its discretion, and as a matter of convenience, may
order all the claims to be collected in a separate folder.
Q: What is the form? When you submit a claim, what
document will you give to the court?
A: 2015-2016 TSN: “The rules do not require any particular
form. The written claim is not even verified. You only have to
submit sworn affidavits as supporting documents. You only
need to present the vouchers. The affidavit is only required if
you cannot prove the indebtedness. You also need to submit
an affidavit if the claim is not due, or is contingent. You can
even file a motion in court.”
In the case of Sheker vs. Estate of Alice Sheker, the claim may
be filed in court through a motion in the main case of the
settlement of the deceased.
ATTY: So, the minimum requirement is you submit an affidavit
of claim. You attach the proof of indebtedness. If it’s a
promissory note, attach it. If it’s a loan agreement, attach it. If
it’s a negotiable instrument like a check, attach it.
If it’s due, you state it in the affidavit. If it’s not due, state it. If
it’s contingent, state it. Practically, lahat may affidavit dapat:
kung due, not due or contingent.
So, the minimum requirement as to form is IT MUST BE
UNDER OATH. At the very minimum, you submit an affidavit of
claim under oath and attach all the evidence of indebtedness.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
th
(JSL/Feb 16,2019/4 hr)
Are you required to pay docket fees for your claim?
Yes, according to the SC, it is required to be paid. It constitutes
as a lien on the judgment.
Hindi siya initiatory pleading pero, magbabayad ka ng docket
fees. That’s the rule in the filing of claims: pay docket fees.
After the filing of the claim, the affidavit with proof of
indebtedness, what will happen next?
The executor/administrator will answer. (Sec.10, Rule 86)
How long? What will the answer contain?
Within fifteen (15) days after service of a copy of the claim on
the executor or administrator, he shall file his answer admitting
or denying the claim specifically, and setting forth the
admission or denial.
Contents:
Admission or specific denial
An allegation of offsetting in any claim which the decedent
before death had against the claimant,
(failure to do so bars the claim forever)
Okay. So when you file a sworn claim, it requires payment
of docket fees. Will it require service of summons on the
executor/administrator?
No, this is not an initiatory pleading. Why will the court issue
summons. Summons are only for the initiatory pleading in an
ordinary action, requiring the defendant to file an answer within
15 days from receipt of the summons and the copy of the
complaint. This is not a complaint; this is not an initiatory
pleading. That is why you don’t need a CNFS. Although, you
need to pay docket fees.
How then will the executor/administrator be notified and
when will you reckon the 15-day period since there is no
summons?
When you file your claim, copy furnish it to the
executor/administrator. The date of receipt there will be the
reckoning period to answer. The executor/administrator will not
wait for any summons because that will not be forthcoming of
the court. The Rules does not allow issuance of summons for
each and every claim that will be filed.
So, automatic, pagtanggap niya ng copy ng claim, fifteen days
mag-file ka ng answer, whether to admit or deny the claim. Or,
interpose a counterclaim.
The counterclaim (offset) not interposed within the answer will
be barred forever. That is the time for the
executor/administrator to enforce the counterclaim of the
estate.
Now, what will happen if the answer will admit the claim?
Rule 86. Section 11. Disposition of admitted claim. — Any
claim admitted entirely by the executor or administrator shall
immediately be submitted by the clerk to the court who may
approve the same without hearing; but the court, in its
discretion, before approving the claim, may order that known
heirs, legatees, or devisees be notified and heard. If upon
hearing, an heir, legatees, or devisee opposes the claim, the
court may, in its discretion, allow him fifteen (15) days to file an
answer to the claim in the manner prescribed in the preceding
section.
The clerk shall shall immediately submit it to the court who
may approve the same without hearing; but the court, in its
discretion, before approving the claim, may order that known
heirs, legatees, or devisees be notified and heard. “
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If the claim is admitted, it can be approved. In other words,
wala ng issue. Inadmit na eh. Unless, in the discretion of the
court, it will require to comment. And if they object, and their
objection is meritorious, then, they can be allowed to file their
answer. That’s the time they will be allowed to file the answer
to the claim.
Now, if the executor/administrator will deny or contest the
claim, what will happen?
Rule 86. Section 12. Trial of contested claim. — Upon the
filing of an answer to a claim, or upon the expiration of the time
for such filing, the clerk of court shall set the claim for trial with
notice to both parties. The court may refer the claim to a
commissioner.
So, there will be trial for contested claims (with notice to
parties). And the court here will receive evidence by itself or by
commissioners, depending on its discretion. (Sec.12)
When the court approves or disapproves the claim in an
order, what is the nature of that order? It is a final order.
When a court approves a claim, does that create any lien
on any of the estate property in favor of the approved
claimant?
Rule 86. Section 13. Judgment appealable. — The judgment
of the court approving or disapproving a claim, shall be filed
with the record of the administration proceedings with notice to
both parties, and is appealable as in ordinary cases. A
judgment against the executor or administrator shall be that he
pay, in due course of administration, the amount ascertained to
be due, and it shall not create any lien upon the property of the
estate, or give to the judgment creditor any priority of payment.
No, it does not create any lien upon the property of the
decedent, nor does it give priority to the judgment creditor.
So, the approval of the claims creates no lien, nor
preference in favor of the approved claimant. It only means
that he is qualified to be paid from the properties of the estate.
In other words, valid yung claim niya; kailangang bayaran.
So, ita-table yung amount para sa kanya para ma-arrange, ma-
consider ng executor/administrator at ma-include sa list of
debts that has to be paid. But, it doesn’t mean preferred
creditor na siya. It only means that valid ang claim, and it has
to be paid.
In actions that survive, this one, you can file it against the
estate. Specifically, the executor/administrator is the
representative of the estate for the actions that survive. Now,
are there actions that survive that the executor/administrator
can institute against other persons in behalf of the estate?
• For the recovery or protection of the property or rights
of the deceased, (ie. action for reconveyance,
unlawful detainer)
Those actions that survive here can be filed against the estate
independent of the proceeding in the regular courts; before
courts of general jurisdiction. So, necessarily, it would be the
executor/administrator who would be facing this cases.
Now, if you look at it on the other side, these are the same
action that the executor/administrator can file against third
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
persons, in behalf of the estate, in the right of the deceased on
causes that survive.
Recovery of ownership, recovery of possession, foreclosure, or
for quasi-delict. the same.
It could be against or filed by executor/administrator. Pero
yung against the estate, the claimants there are not allowed to
participate in the settlement proceeding. But if it is failed by the
estate, thru the representative (through
executor/administrator), it can be against third persons. That’s
why it’s an action that survives. The executor/administrator, in
behalf of the estate, can be the plaintiff or defendant in that
case. In which case, labas siya sa special proceeding; it is
before the regular courts exercising general jurisdiction.
That’s the essence of actions that survive. It’s a two-way street.
Pwedeng i-file against the estate, or pwede din ang estate ang
mag-file outside the settlement proceeding.
And that is why, earlier, when the executor/administrator
suspects, a person who have embezzled, concealed or
conveyed properties of the estate that should be included in
the inventory, he can ask the settlement court to summon that
person suspected to question him. And whatever evidence
gathered, that indeed, there are properties or assets in the
hands of other persons, he will now file an accion
reinvidicatoria against this person. And this will be a separate
case outside the settlement proceeding, heard by courts of
general jurisdiction.
That is, if you look at it holistically, look at it in the entire
picture, that’s how it’s gonna be; the remedies and the proper
steps to be taken in order to go after properties of the estate,
especially if these are concealed or embezzled.
Now, you have now a separate case filed supposed by the
executor/administrator, kasi siya yung representative ng estate;
because he has the letters.
Can the heirs, by themselves, file a case on behalf of the
estate?
General Rule: heirs cannot, by themselves, file a case on
behalf of the estate
Exception:
1. When the executor/administrator is unwilling or refuses
to do so
2. When the executor/administrator participated in the act
complained of
3. No executor/administrator (Rioferio v CA)
General rule, It is the executor/administrator who will
initiate the action on behalf of the estate.
If the action that survives belong to the estate, no other can
institute it.
The heirs cannot sue unless their shares have been assigned.
Until they come into possession; they become distributees of
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specific portions of the estate as their share in the estate.
Pending the distribution, executor/administrator lang for actions
on behalf of the estate.
Now, Rioferio v CA tells you the exceptions:
1. No executor/administrator appointed
2. If executor/administrator unwilling to file
3. If the executor/administrator will be the defendant
himself
Meaning, nasa kanya ang property na irecover, maybe
conveyed to him fraudulently during the lifetime of the
deceased. So, the heirs now can institute the action on behalf
of the estate.
The rule is that, as the representative of the estate, he
would file the action on behalf of the estate. Can this
executor/administrator file the action on behalf of the
creditor? Is there an instance that that can be done?
Yes, under Rule 87, Section 9 It provides:
Rule 87. Section 9. Property fraudulently conveyed by
deceased may be recovered. When executor or administrator
must bring action. — When there is a deficiency of assets in
the hands of an executor or administrator for the payment of
debts and expenses of administration, and the deceased in his
lifetime had conveyed real or personal property, or a right or
interest therein, or an debt or credit, with intent to defraud his
creditors or to avoid any right, debt, or duty; or had so
conveyed such property, right, interest, debt or credit that by
law the conveyance would be void as against his creditors, and
the subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime, the executor or
administrator may commence and prosecute to final judgment
an action for the recovery of such property, right, interest, debt,
or credit for the benefit of the creditors; but he shall not be
bound to commence the action unless on application of the
creditors of the deceased, not unless the creditors making the
application pay such part of the costs and expenses, or give
security therefor to the executor or administrator, as the court
deems equitable.
3 conditions before the executor/administrator can initiate an
action in behalf of the creditors:
1. The property to be recovered, subject of the action,
was conveyed by deceased during his lifetime with
intent to defraud the creditors. It was precisely to
avoid the creditors that he did so; that he conveyed
the property
2. The estate is deficient to pay all the debts of the
estate. All approved claims cannot be settled by the
existing assets of the estate
3. The creditors will pay the costs of the suit.
So, the filing fee, lawyer’s fee that will be defrayed by the
creditors. They will either deposit the amount in court or post a
bond in court to pay for the expenses.
These are the 3 basic requirements before the
executor/administrator can initiate an action to recover
properties fraudulently conveyed on behalf of the creditors.
Now, supposing that the general rule, again, even if its for
the benefit of the creditors, the executor/administrator will
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
file it. Is there an instance where it is the creditor
themselves who will file the action?
Rule 87. Section 10. When creditor may bring action. Lien for
costs. — When there is such a deficiency of assets, and the
deceased in his lifetime had made or attempted such a
conveyance, as is stated in the last preceding section, and the
executor or administrator has not commenced the action
therein provided for, any creditor of the estate may, with the
permission of the court, commence and prosecute to final
judgment, in the name of the executor or administrator, a like
action for the recovery of the subject of the conveyance or
attempted conveyance for the benefit of the creditors. But the
action shall not be commenced until the creditor has filed in a
court a bond executed to the executor or administrator, in an
amount approved by the judge, conditioned to indemnify the
executor or administrator against the costs and expenses
incurred by reason of such action. Such creditor shall have a
lien upon any judgment recovered by him in the action for such
costs and other expenses incurred therein as the court deems
equitable. Where the conveyance or attempted conveyance
had been made by the deceased in his lifetime in favor of the
executor or administrator, the action which a credit may bring
shall be in the name of all the creditors, and permission of the
court and filing of bond as above prescribed, are not
necessary.
Like in the case of the heirs, they cannot sue when there is an
executor/administrator, there are also exceptions in the case of
creditors. If the actions needed to be filed by the
executor/administrator can be filed by the creditors
themselves. These actions can be made in behalf of the
creditors, though generally must be initiated by the
executor/administrator subject to the deposit of the bond and
the payment of the costs by the creditors, the creditors
themselves can file this action.
1) If the executor/administrator is unwilling to file the suit
despite the order of the court to do so.
The creditors, by mere motion, can ask the court that they be
allowed to file. But still, the action would still be in the name of
the executor/administrator representative of the estate. And
they will have to put the bond or the deposit or the expenses.
Now, if it is against the executor/administrator, because he is
the one who in whose favor the fraudulent conveyance came.
Then, only then, will the action be in the name of the creditors
themselves. And in such case, there will e no need for court
approval or deposit the amount of the cost. That’s the
exception. (No deposit in court, and no court-approval if the
suit is filed against the executor/administrator by the creditors.
When the estate is insolvent, meaning, it has sufficient
assets and properties, how do you pay all the approved
claims?
First, is follow the provisions of the will, (if any). If none, follow
Section 2 and 3, Rule 88:
Rule 88. Section 2. Part of estate from which debt paid when
provision made by will. — If the testator makes provision by his
will, or designates the estate to be appropriated for the
payment of his debts, the expenses of administration, or the
family expenses, they shall be paid according to the provisions
of the will; but if the provision made by the will or the estate
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appropriated, is not sufficient for that purpose, such part of the
estate of the testator, real or personal, as is not disposed of by
will, if any shall be appropriated for that purpose.
Rule 88. Section 3. Personalty first chargeable for debts, then
realty. — The personal estate of the deceased not disposed of
by will shall be first chargeable with the payment of debts and
expenses; and if said personal estate is not sufficient for tat
purpose, or its sale would redound to the detriment of the
participants for the estate, the whole of the real estate not
dispose of by will, or so much thereof as is necessary, may be
sold, mortgaged, or otherwise encumbered for that purpose by
the executor or administrator, after obtaining the authority of
the court therefor. Any deficiency shall be met by contributions
in accordance with the provisions of section 6 of this rule.
If the estate is solvent, no problem. It’s just a matter of what
kind of properties to utilise in paying the debt. If there’s enough
cash, then, pay everything in full. Kung walang cash, that’s the
time you look at the properties; mauunang ibenta ang personal
properties to generate cash in order to pay off the creditors.
Then, if the personal properties are exhausted, you go to the
real estate.
Only so much of the real estate would be disposed of, in order
to pay the debts. Kung hindi naman kailangang ibenta lahat,
then, no need.
Instances where you could go directly to real properties:
The contributive shares will only apply if properties of the
estate were distributed to the heirs before payment of debts.
Hindi pa nabayaran lahat ng utang, at possessed nila ang mga
properties, then, they will be required to give contributive
shares. And in that regard, how do you apportion it? What is
the procedure here? It will be through a hearing to be held by
the court. It is important. There will be notice to everyone
involved. And after the hearing, the court will determine their
contributive share and will required them to pay within a certain
period. Failure to do so, a writ of execution may be issued
against them.
The general rule is that: solvent yung estate, bayaran mo from
the properties of the estate. Pagmay-cash, bayad lahat; pag
may properties, sell the properties.
Now, if you have exhausted all the properties, natitira na lang
ang real properties, but, these properties are already occupied
and distributed to the heirs, so ibebenta mo ang properties?
Not yet, what you do, is require the heirs to contribute in order
to settle the remaining unpaid debts. Magkakaroon ng hearing
kung magkano ang contributions nila. Let’s say the remaining
debt is 1million, and the remaining value of the estate is
5million.
Rather than sell the properties, just require the occupants to
contribute; magbigay na lang kayo para mabayaran yung
remaining amount na 1million. Magkakaroon ng hearing. If
there are four heirs, then tag-250K each. Kapag hindi sila
magbayad, that’s the time the court will issue a writ of
execution. It’s a more practical solution, rather than selling the
entire estate, the value of which is far greater than the
remaining debt. That’s the remedy there; what the court can
do.
What if the estate is NOT solvent?
Rule 88. Section 7. Order of payment if estate insolvent — If
the assets which can be appropriated for the payment of debts
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
are not sufficient for that purpose, the executor or administrator
shall pay the debts against the estate, observing the provisions
of Articles 1059 and 2239 to 2251 of the Civil Code.
So you have preferred creditors. Those who enjoy the highest
preference will be settled first, on to the next, and unto the last.
There will be some creditors who will not be paid in full; kasi
kulang nga ang assets ng estate. What will happen? Then, in
this case, it will be pro rata. Depede kung how much ang
claims nila and how much yung natitirang assets; pro-pro rate
ng court. Hanggang doon lang makukuha nila; hindi na nila
mahahabol ang mga heirs. Unless, the heirs are in possession
of properties of the estate; yung contributive shares. But,
outside of that, they cannot go anymore after the heirs.
What about if the claimants of the estate will include
foreign claimants? Let’s say you have a non-resident
decedent with estate abroad and estate here in the Philippines.
Insolvent yung estate niya abroad, paano mo isesettle yung
debts niya abroad from here in the Philippines?
Rule 88. Section 9. Estate of insolvent non-resident, how
disposed of. — In case administration is taken in the Philippine
of the estate of a person who was at the time of his death an
inhabitant of another country, and who died insolvent, hi estate
found in the Philippines shall, as far as practicable, be so
disposed of that his creditors here and elsewhere may receive
each an equal share, in proportion to their respective credits.
Pro rata pa rin.
What is the condition before it is allowed?
It must first be duly proven. And the executor/administrator
must have knowledge of such claims from such country; and
they must have the opportunity to contest its allowance; the
court shall receive a certified list of such claims, (Section 10).
If it is insolvent, and there are claimants abroad, and the non-
resident decedent, what will happen to the unpaid foreign
claimants?
There must be reciprocity before you can allow foreign
claimants to enforce their claims from the estate found in the
Philippines.
Section 10 (last sentence) provides that “but the benefit of this
and the preceding sections shall not be extended to the
creditors in another country if the property of such deceased
person there found is not equally apportioned to the creditors
residing in the Philippines and the other creditor, according to
their respective claims.”
Non-resident ito ha. Proportionate payment; proportionate
sharing of the claims out of the estate, provided there is
reciprocity.
If it is a resident decedent, but with unpaid foreign
claimants, how do you pay if the estate is insolvent?
“If it appears to the court having jurisdiction that claims have
been duly proven in another country against the estate of an
insolvent who was at the time of his death an inhabitant of the
Philippines, and that the executor or administrator in the
Philippines had knowledge of the presentation of such claims
in such country and an opportunity to contest their allowance,
the court shall receive a certified list of such claims, when
perfected in such country, and add the same to the list of
claims proved against the deceased person in the Philippines
so that a just distribution of the whole estate may be made
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equally among all its creditors according to their respective
claims;”
You have to distinguish the two scenarios here:
1. If it is a non-resident decedent, the main bulk of his
estate is abroad; doon na-sesettle, but may properties
here sa Philippines. kung ano yung unpaid claimants
doon, plus the unpaid claimants here, pwede sila mag
share pro rata kung ano yung property remaining here
in the Philippines.
2. If the decedent is a resident decedent, meaning, dito
ang main estate niya, meron then doon, (with a
settlement proceeding); but he died here. So, the only
way the unpaid claimants abroad can be entertained
here is when the administrator here is allowed to be
heard in the claims that were filed and proven abroad.
Pag nabigyan na siya ng list; the administrator was
given the list of all the approved claims abroad, and
was given the opportunity to contest these claims,
then, pwedeng bayaran yung unpaid claimants from
the estate found in the Philippines; pro rata pa rin.
Reciprocity must likewise be present. (Section 10,
Rule 88)
You look at Sections 9 and 10 when it comes to unpaid foreign
claimants and the estate is insolvent.
If the claim is contingent, how do you pay it? (Section 5,
Rule 88)
Rule 88. Section 5. How contingent claim becoming absolute
in two years allowed and paid. Action against distributees later.
— If such contingent claim becomes absolute and is presented
to the court, or to the executor or administrator, within two (2)
years from the time limited for other creditors to present their
claims, it may be allowed by the court if not disputed by the
executor or administrator and, if disputed, it may be proved and
allowed or disallowed by the court as the facts may warrant. If
the contingent claim is allowed, the creditor shall receive
payment to the same extent as the other creditors if the estate
retained by the executor or administrator is sufficient. But if the
claim is not so presented, after having become absolute, within
said two (2) years, and allowed, the assets retained in the
hands of the executor or administrator, not exhausted in the
payment of claims, shall be disturbed by the order of the court
to the persons entitled to the same; but the assets so
distributed may still be applied to the payment of the claim
when established, and the creditor may maintain an action
against the distributees to recover the debt, and such
distributees and their estates shall be liable for the debt in
proportion to the estate they have respectively received from
the property of the deceased.
If the claim is contingent, present it during the statute of non-
claims. The court will now have an idea how much is that claim
even though it is still contingent. If it becomes absolute and it is
presented again, then, the administrator or executor will
answer, whether it is admitted or disputed.
And if it is an approved claim, then, the court will reserve so
much of the asset in order to pay it. Before it becomes
absolute, the court will reserve the asset to pay.
When it becomes absolute, it should be presented for payment
within two years. Ibibigay na sa kanya yung payment. If hindi
siya nakapresent within two years, then, what was reserved to
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
pay for that contingent claim will be distributed to the heirs. But
if it becomes absolute and is presented for payment after
distribution, the distributees now will be liable to return what
they received in order to pay off the contingent claim.
That’s what happens in a contingent claim. Ireserve sayo ang
dapat mareserve the moment it becomes absolute. That’s why
pasok siya sa statute of non-claims.
When will be the payment of debts be made?
It shall be made within one year from the grant of the letters (of
testamentary or administration). One year to render an
accounting and pay debts. But, that does not happen in real life
kasi and nangyayari, it takes decades bago aabot sa payment
of debts.
What will be the next step after the payment of the debts?
Rule 88. Section 11. Order for payment of debts. — Before the
expiration of the time limited for the payment of the debts, the
court shall order the payment thereof, and the distribution of
the assets received by the executor or administrator for that
purpose among the creditors, as the circumstances of the
estate require and in accordance with the provisions of this
rule.
The order of the court for payment will list those approved
claims.
How about those contested claims that are appealed?
Rule 88. Section 12. Orders relating to payment of debts
where appeal is taken. — If an appeal has been taken from a
decision of the court concerning a claim, the court may
suspend the order for the payment of the debts or may order
the distributions among the creditors whose claims are
definitely allowed, leaving in the hands of the executor or
administrator sufficient assets to pay the claim disputed and
appealed. When a disputed claim is finally settled the court
having jurisdiction of the estate shall order the same to be paid
out of the assets retained to the same extent and in the same
proportion with the claims of other creditors.
If the claim is appealed, it cannot be paid yet. There will be
reservation of assets to settle the debts in case the appeal is
decided against the estate and in favor of the claimant.
For the approved claims, if there are no issues, that would be
included and it will be paid from the assets of the estate.
What are the rules in case the personal properties/assets of
the state is insufficient to pay off the debts? So you need to sell
the real assets.
What are the rules before the real properties of the estate
can be sold to pay the debts?
Rule 89. Section 1. Order of sale of personalty. — Upon the
application of the executor or administrator, and on written
notice to the heirs and other persons interested, the court may
order the whole or a part of the personal estate to be sold, if it
appears necessary for the purpose of paying debts, expenses
of administration, or legacies, or for the preservation of the
property.
Rule 89. Section 2. When court may authorize sale, mortgage,
or other encumbrance of realty to pay debts and legacies
through personalty not exhausted. — When the personal
estate of the deceased is not sufficient to pay the debts,
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expenses of administration, and legacies, or where the sale of
such personal estate may injure the business or other interests
of those interested in the estate, and where a testator has not
otherwise made sufficient provision for the payment of such
debts, expenses, and legacies, the court, on the application of
the executor or administrator and on written notice of the heirs,
devisees, and legatees residing in the Philippines, may
authorize the executor or administrator to sell, mortgage, or
otherwise encumber so much as may be necessary of the real
estate, in lieu of personal estate, for the purpose of paying
such debts, expenses, and legacies, if it clearly appears that
such sale, mortgage, or encumbrance would be beneficial to
the persons interested; and if a part cannot be sold,
mortgaged, or otherwise encumbered without injury to those
interested in the remainder, the authority may be for the sale,
mortgage, or other encumbrance of the whole of such real
estate, or so much thereof as is necessary or beneficial under
the circumstances.
There is a need to secure a court order; you need to file a
motion in court. What is the procedure to sell off realty in
order to pay debts? (Sec.4, 7, Rule 89)
transcriber:
1. Executor/administrator will file an application
2. the court will schedule a hearing
3. The court will require an additional bond;
4. The court may authorise executor/administrator to sell
(thru private or public sale);
5. It must be recorded at the ROD
Rule 89. Section 4. When court may authorize sale of estate
as beneficial to interested persons. Disposal of proceeds. —
When it appears that the sale of the whole or a part of the real
or personal estate, will be beneficial to the heirs, devisees,
legatees, and other interested persons, the court may, upon
application of the executor or administrator and on written
notice to the heirs, devisees, and legatees who are interested
in the estate to be sold, authorize the executor or administrator
to sell the whole or a part of said estate, although not
necessary to pay debts, legacies, or expenses of
administration; but such authority shall not be granted if
inconsistent with the provisions of a will. In case of such sale,
the proceeds shall be assigned to the persons entitled to the
estate in the proper proportions.
Who will file the petition for the sale? The
executor/administrator (with notice to the heirs)
What will the court do after it receives the motion? The
court will set a hearing for the motion.
Rule 89. Section 7. Regulation for granting authority to sell,
mortgage, or otherwise encumber estate. — The court having
jurisdiction of the estate of the deceased may authorize the
executor or administrator to sell personal estate, or to sell,
mortgage, or otherwise encumber real estate, in cases
provided by these rules and when it appears necessary or
beneficial under the following regulations.
a. The executor or administrator shall file a written
petition setting forth the debts due from the deceased,
the expenses of administration, the legacies, the
value of the personal estate, the situation of the estate
to be sold, mortgaged, or otherwise encumbered, and
such other facts as show that the sale, mortgage, or
other encumbrance is necessary or beneficial.
b. The court shall thereupon fix a time and place for
hearing such petition, and cause notice stating the
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
nature of the petition, the reasons for the same, and
the time and place of hearing, to be given personally
or by mail to the persons interested, and may cause
such further notice to be given, by publication or
otherwise, as it shall deem proper;
c. If the court requires it, the executor or administrator
shall give an additional bond, in such sum as the court
directs, conditioned that such executor or
administrator will account for the proceeds of the sale,
mortgage, or other encumbrance;
d. If the requirements in the preceding subdivisions of
this section have been complied with, the court, by
order stating such compliance, may authorize the
executor or administrator to sell, mortgage, or
otherwise encumber, in proper cases, such part of the
estate as is deemed necessary, and in case of sale
the court may authorize it to be public or private, as
would be most beneficial to all parties concerned. The
executor or administrator shall be furnished with a
certified copy of such order;
e. If the estate is to be sold at auction, the mode of
giving notice of the time and place of the sale shall be
governed by the provisions concerning notice of
execution sale;
f. There shall be recorded in the registry of deeds of the
province in which the real estate thus sold, mortgage,
or otherwise encumbered is situated, a certified copy
of the order of the court, together with the deed of the
executor or administrator for such real estate, which
shall be as valid as if the deed had been executed by
the deceased in his lifetime.
There would be hearing conducted, and the heirs will be given
an opportunity to be heard whether or not to allow the sale in
order to settle debts.
After hearing, the court can issue a decision granting or deny
the authority. Now what happens if the order allowing the
sale is given to the heirs, instead of the executor or
administrator? What is the effect of that order? Can the
sale made by the heirs be considered valid?
In Orola v Pontevedra, the Supreme Court held that
under Section 7 of Rule 89, only the executor or administrator
of the estate may be authorized by the intestate estate court to
mortgage real estate belonging to the estate; hence, the order
of the estate court authorizing the petitioners (heirs) to
mortgage the realty of the estate to the respondent Rural Bank
is a nullity.
It must be the executor/administrator who must seek
the authority to sell by filing a written petition. (Sec.7(a), Rule
89)
What did the Supreme Court said in Bonaga v Soler?
The notice and the hearing requirement are
MANDATORY. Without it, the authority given by the court is
void.
What authority was granted by the court in Orola? And to
whom was it granted? It was an authority to encumber
granted to the heirs (children). That is why it was void.
The authority must be given to the executor/administrator.
Otherwise, it is void. The heirs cannot ask for that authority to
sell from the court. It is only the executor or administrator can
get that authority.
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Any authority granted to the heirs is void, and the
transaction is void.
What is the exception to the rule that only the
executor/administrator may sell or encumber real
properties of the estate?
Any person in whom the deceased has contracted or
conveyed a property during his lifetime, but that transaction did
not materialise or not fully executed, then, that person, even if
he is not the executor/administrator, can ask the court for
authority to sell and convey the property to him. (Sandejas v
Lina)
The exception here is in a situation governed by Rule 89,
Section 8 and 9.
ATTY: So, the exceptions here are governed by Rule 89,
Sections 8 and 9.
RULE 89
Section 8. When court may authorize conveyance of
realty which deceased contracted to convey. Notice. Effect of
deed. — Where the deceased was in his lifetime under
contract, binding in law, to deed real property, or an interest
therein, the court having jurisdiction of the estate may, on
application for that purpose, authorize the executor or
administrator to convey such property according to such
contract, or with such modifications as are agreed upon by the
parties and approved by the court; and if the contract is to
convey real property to the executor or administrator, the clerk
of court shall execute the deed. The deed executed by such
executor, administrator, or clerk of court shall be as affectual to
convey the property as if executed by the deceased in his
lifetime; but no such conveyance shall be authorized until
notice of the application for that purpose has been given
personally or by mail to all persons interested, and such further
notice has been given, by publication or otherwise, as the court
deems proper; nor if the assets in the hands of the executor or
administrator will thereby be reduced so as to prevent a
creditor from receiving his full debt or diminish his dividend.
Section 9. When court may authorize conveyance of
lands which deceased held in trust. — Where the deceased in
his lifetime held real property in trust for another person, the
court may after notice given as required in the last preceding
section, authorize the executor or administrator to deed such
property to the person, or his executor or administrator, for
whose use and benefit it was so held; and the court may order
the execution of such trust, whether created by deed or by law.
So,
1. Sale of real property previously contracted by the
deceased or held by the deceased in trust;
2. Concerned persons here can petition the authority to
sell the said property and convey the same to the
buyer.
Under Sec.8, the petitioner need not be the executor or
administrator, but the buyer of the property.
In the case of Orola vs. Pontevedra, the SC also added the
requirement of presenting the deed of mortgage for the
approval of the court even though there is no such requirement
under the Rules (Sec.7 of Rule 89). But Orola, included that as
a requirement.
Q: Do you need court authority to sell the heir’s share in
the estate?
A: No based on the case of Opulencia vs CA.
Balderas, Chua, Coquilla, Deparine, Lagat, Palma Gil
SC emphasized that hereditary rights are vested in
the heir or heirs from the moment of the decedent’s
death. Petitioner, therefore, became the owner of her
hereditary share the moment her father died. Thus,
the lack of judicial approval does not invalidate the
Contract to Sell because the petitioner has the
substantive right to sell the whole or part of her share
in the estate of her late father. (Opulencia v. CA)
ATTY: When you talk about the sale of a specific property of
the estate, you need court approval. If you’re talking about the
sale of the share of an heir, no need for court approval.
In other words, the heirs can freely dispose of their shares
without seeking prior court approval because the share is an
undivided share in the estate.
But a specific property of the estate cannot simply be disposed
of without court authority because that is within the jurisdiction
and authority and under the custodia legis of the court. Before
it can be taken out of custodia legis, or out of the jurisdiction
the settlement court, the court has to issue the requisite
authority for the disposition of that specific property. That is the
reason why you need court authority.
That is also the reason why when you sell specific properties of
the estate without court authority, the settlement court has that
power to nullify that transaction. It falls under its limited
jurisdiction, because that property, as far as the court is
concerned, that was sold without court authority, is still within
the jurisdiction of the settlement court.
Our jurisprudence is therefore clear that (1) any
disposition of estate property by an administrator or
prospective heir pending adjudication requires court
approval and (2) any unauthorized disposition of
estate property can be annulled by the probate court,
there being no need for separate action to annul the
unauthorized disposition. (Lee v. RTC of Quezon)
So, kung walang court authority, that is still under court
authority subject to custodia legis, and the settlement court still
has jurisdiction to rule on the validity of the transaction.
DISTRIBUTION AND PARTITION OF ESTATE
Rule 90, Section 1. When order for distribution of reside
made. — When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law,
have been paid, the court, on the application of the executor or
administrator, or of a person interested in the estate, and after
hearing upon notice, shall assign the residue of the estate to
the persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective shares from
the executor or administrator, or any other person having the
same in his possession. If there is a controversy before the
court as to who are the lawful heirs of the deceased person or
as the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as
in ordinary cases.
No distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided for,
unless the distributees, or any of them, give a bond, in a sum
to be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.
Q: What follows after payment of the debts if there are net
estate remaining that will be distributed among them?
ATTY: It is the duty of the executor or administrator to
distribute the remaining properties to the heirs kung meron
pang natitira. Usually, they will submit an project of partition.
The court will consider that and will probably issue notices to
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the heirs in order to determine WON to approve the project of
partition. After which, it will be distributed according to the
project of partition.
Ano pang issue ang pwede ihabol at the distribution stage? An
issue on filiation brought up by an alleged illegitimate child, like
in Tayag vs. CA. So, an illegitimate child can still intervene and
seek compulsory recognition of his illegitimate filiation with the
deceased.
So, nasa homerun na kayo, ma de delay na naman kayo kasi
may nag intervene na illegitimate child. That means, i-re-
resolve pa yan ng court bago idi-distribute ang net residue of
the estate.

Q: How will the court resolve that? What will be the

proceeding that will govern?
A: It will be heard and decided as in ordinary cases. Para ka
ring nag file ng case for compulsory recognition. It will be
treated like an ordinary case. Presentation of evidence na
naman.
To enforce his claim as an illegitmate child, his inheritance, his
successional rights, then it will be heard as in ordinary cases.
So, instead happy na ang heirs, hindi pa pwede. They cannot
get their hands on their share kasi meron pang i-re-resolve.

Swerte nalang yung heirs who are already in possession,

bahala na gaano katagal, distribute na sila eh, magbayad lang
sila ng contributive share of the debts, they will continue to be
in possession for entire the case on recognition will last.

Pero kung hindi pa talaga na distribute, yun ang problema,

unless the court will allow partial distribution of the estate, and
only to retain what is supposedly the share of the illegitimate
child. Pwede din yun, partial distribution din yun.

Section 2. Questions as to advancement to be determined. —

Questions as to advancement made, or alleged to have been
made, by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate
proceedings; and the final order of the court thereon shall be
binding on the person raising the questions and on the heir.

EXPENSES OF PARTITION
Section 3. By whom expenses of partition paid. — If at the
time of distribution the executor or administrator has retained
sufficient effects in his hands which may lawfully be applied for
the expenses of partition of the properties distributed, such
expenses of partition may be paid by such executor or
administrator when it appears equitable to the court and not
inconsistent with the intention of the testator; otherwise, they
shall be paid by the parties in proportion to their respective
shares or interest in the premises, and the apportionment shall
be settled and allowed by the court, and, if any person
interested in the partition does not pay his proportion or share,
the court may issue an execution in the name of the executor
or administrator against the party not paying the sum
assessed.

RECORDING OF PARTITION ORDER

Section 4. Recording the order of partition of estate. —
Certified copies of final orders and judgments of the court
relating to the real estate or the partition thereof shall be
recorded in the registry of deeds of the province where the
property is situated.

-E N D-
-GOODLUCK-

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