Midterms - Part 1 Annotation

7/28/2019 Midterms - Part 1 Annotation

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I. JURISDICTION, DEFINITION,

NATURE

A. Defniton and Naure o Special

Proceedings and Rules Applicable

Rule 1, Sec. 3. Cases governed.These Rules

shall govern the procedure to be observed inactions, civil or criminal, and special

proceedings.

(c) A special proceeding is a remedy by which

a party seeks to establish a status, a right, or

a particular fact.

Rule 72, Sec. 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 or correction of entries in thecivil registry.

Rule 2, Sec. 1. Ordinary civil actions, basis of.

Every ordinary civil action must be based on

a cause of action. (n)

Sec. 2. Cause of action, defined.A cause of

action is the act or omission by which a party

violates a right of another. (n)

B. Subject Matters of Special

Proceedings

Rule 73, Sec. 1. Where estate of deceased

persons settled.If the decedent 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 Regional Trial Court in the

province in which he resides at the time of

his death, and if he is an inhabitant of a

foreign country, the Regional Trial Court 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.

C. Jurisdiction of Special Proceedings

BP 129, as amended by RA 7691

Sec. 19. Jurisdiction in civil cases. Regional

Trial Courts shall exercise exclusive original

jurisdiction.

(2) In all civil actions which involve the title

to, or possession of, real property, or any

interest therein, where the assessed value of

the property involved exceeds Twenty

thousand pesos (P20,000,00) or, for civil

actions in Metro Manila, where such value

exceeds Fifty thousand pesos (P50,000.00)

except actions for forcible entry into and

unlawful detainer of lands or buildings,original jurisdiction over which is conferred

upon the Metropolitan Trial Courts, Municipal

Trial Courts, and Municipal Circuit Trial

Courts;

(4) In all matters of probate, both testate and

intestate, where the gross value of the estate

exceeds One hundred thousand pesos

(P100,000.00) or, in probate matters in Metro

Manila, where such gross value exceeds Two

Hundred thousand pesos (P200,000.00);

(6) In all cases not within the exclusive

jurisdiction of any court, tribunal, person orbody exercising jurisdiction of any court,

tribunal, person or body exercising judicial or

quasi-judicial functions;

(7) In all civil actions and special proceedings

falling within the exclusive original

jurisdiction of a Juvenile and Domestic

Relations Court and of the Court of Agrarian

Relations as now provided by law; and

(8) In all other cases in which the demand,

exclusive of interest, damages of whatever

kind, attorney's fees, litigation expenses, and

costs or the value of the property incontroversy exceeds One hundred thousand

pesos (P100,000.00) or, in such other cases in

Metro Manila, where the demand exclusive of

the abovementioned items exceeds Two

Hundred thousand pesos (P200,000.00).

Sec. 33. Jurisdiction of Metropolitan Trial

Courts, Municipal Trial Courts and Municipal

Circuit Trial Courts in Civil Cases.

Metropolitan Trial Courts, Municipal Trial

Courts, and Municipal Circuit Trial Courts

shall exercise:

(1) Exclusive original jurisdiction over civilactions and probate proceedings, testate and

intestate, including the grant of provisional

remedies in proper cases, where the value of

the personal property, estate, or amount of the

demand does not exceed One hundred

thousand pesos (P100,000.00) or, in Metro

Manila where such personal property, estate,


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or amount of the demand does not exceed Two

hundred thousand pesos (P200,000.00),


kind, attorney's fees, litigation expenses, and

costs, the amount of which must be specifically

alleged: Provided, That interest, damages of

whatever kind, attorney's fees, litigation

expenses, and costs shall be included in the

determination of the filing fees: Provided,

further, That where there are several claims

or causes of actions between the same or

different parties, embodied in the same

complaint, the amount of the demand shall be

the totality of the claims in all the causes of

action, irrespective of whether the causes of

action arose out of the same or different

transactions

D. Applicability of Rules of Civil

Action

Rule 72, Sec. 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.

II. RULES CONFERRING POWER ON

ONE OVER THE PROPERTY OF

ANOTHER

A. Settlement of Estate of DeceasedPersons

1. Venue and Jurisdiction

Rule 73, Sec. 1. Where estate of deceased

persons settled.If the decedent 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 Regional

Trial Court in the province in which he resides

at the time of his death, and if he is an

inhabitant of a foreign country, the Regional

Trial Court 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.

Sec. 2. Where estate settled upon dissolution

of marriage. When the marriage is dissolved

by the death of the husband or wife, the

community property shall be inventoried,

administered, and liquidated, and the debts

thereof paid, in the testate or intestate

proceedings of the deceased spouse. If both

spouses have died, the conjugal partnership

shall be liquidated in the testate or intestate

proceedings of either.

Sec. 3. Process.In the exercise of probate

jurisdiction, Regional Trial Court may issue

warrants and process necessary to compel the

attendance of witnesses or to carry into effect

their 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 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.

Notes:

Definition a SP for settlement of estate is

intended to settle the entire estate of the

deceased; it seeks to establish a status, a

right, or particular fact, i.e. the fact of death,

to be recognized as heirs of the deceased so

that they could validly exercise their right to

participate in the settlement and liquidation

of the estate of the decedent consistent with

the limited and special jurisdiction of the

probate court

Testate proceeding when the deceased left awill

Intestate proceeding when the deceased left

no will, or, if there is a will, such is declared

null and void

Conversion of an Intestate into testate

proceeding The probate of a will is

mandatory. If in the course of the IP, a will is

found, probate proceedings shall replace it

even if an administrator had already been

appointed, without prejudice to circumstances

which render the proceedings to continue as

an intestacy. The IP shall be consolidated with

the TP and the judge assigned to the latter

should continue hearing the 2 proceedings.

Whether the IP already commenced should be

discontinued and a new proc under a separate

no. and title should be constituted is entirely a

matter of form and lies w/in the sound

discretion of the court. In no manner does it

prejudice the substantial rights of any of theheirs or creditors.

Caveat: The mere discovery of a doc

purporting to be a last will and testament of

the decedent after appt of an admin and

assumption that the decedent dies intestate

does not, ipso facto, nullify the LOA already


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issued or even authorize their revocation until

the will has been proved and allowed.

Jurisdiction of MeTC, MTC, MCTC value of

estate does not exceed 100k, or in Metro Mla,

does not exceed 200k (Sec. 3, RA 7691)

Where proceedings commenced, R73.1 relates

to venue and not jurisdiction The place of

residence of the deceased in the settlement of

his estate, the probate of his will, and

issuance of LOA does not constitute an

element of jurisdiction over the subj matter

but only constitutive of venue. Hence, wrong

venue is a waivable procedural defect, and

such waiver may occur by laches.

Meaning of resides the personal, actual, orphysical habitation of a person; actual

residence or place of abode. It signifies

physical presence in a place and actual stay

thereat. Residence(personal residence) require

bodily presence as an inhabitant in a given

place, as opposed to domicile (legal residence)

which requires bodily presence in a particular

place and an intention to make such place

ones domicile. Theres no particular length of

time of residence required but it must more

than temporary.

Primacy of First Court the court first taking

cognizance of the settlement of the estate of a

decedent shall exercise jurisdiction to the

exclusion of all other courts

Powers and Duties of Probate Court

- Orders the probate of the decedents will

- Grants letters of administration or letters

testamentary

- Supervises and controls all acts of

administration- Hears and proves claims against the

estate of the deceased

- Orders payment of lawful debts

- Authorized sale, mortgage, or any

encumbrance of real state

- Directs the delivery of the estate to those

entitled thereto

- Other incidental and collateral matters

The court acts as a trustee; hence, it is duty-

bound to guard the estate and see to it that it

is wisely and economically administered andnot dissipated.

Jurisdiction of Probate Court :Limited,

Special, and Exclusive the jurisdiction of

the PC does not extend to the determination of

questions of ownership that arise during the

SP. The PC may pass upon the title to a

certain prop for purposes of determining WON

it should be included in the inventory but such

determination is not conclusive and is subject

to the final decision in a separate action re:

ownership which may be constituted by the

parties.

- cannot expand to collateral matters not

arising out of or in any way related to the

settlement and adjudication of the

properties of the deceased which should be

threshed out in an ordinary civil action

- the approval of the PC of the conditional

sale of a property is not conclusive

determination of the intrinsic or extrinsic

validity of such sale but a mere

recognition of the right of an heir to

dispose of her rights and interests over

her inheritance even before partition.

(Ramos vs CA).

- However, the purchaser of prop under

admin is a forced intervenor in the IP. The

PC, having authorized the sale, should

resolve the issue as to its validity. (Plan vs

IAC)

Determination of Ownership

- The ques of ownership is as rule, an

extraneous matter in a PP restricted to

the extrinsic validity of the will, i.e.,

whether the testator, being of sound mind,

freely executed the will in accordance withthe formalities prescribed by law hence,

the PC cannot resolve it with finality.

- Claims for title to, or right of possession

of, personal or real property, made by the

heirs themselves, by title adverse to that

of the deceased, or made by third persons,

cannot be entertained by the probate court

(Cortes vs CA)

Same; Exception The PC has jurisdiction to

resolve the issue of ownership when:

(a) The parties interested are all heirs ofthe deceased;

(b) They consent to the assumption of

jurisdiction by the PC;

(c) They submitted the ques of title to the

prop, w/o prejudice to the rights of 3rd

persons;

(d) Or the question is one of collation or

advancement

Same; Same; Exception where the PC

allowed the intro of evidence on ownership for

the sole purpose of determination of its

inclusion/exclusion in the inventory

Orders of Inclusion or Exclusion of Properties

from Administrators Inventory are

Provisional, not Final, and Interlocutory if

there is a dispute, the parties must resort to


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an ordinary action for a final determination of

the conflicting claims of title

Same; Distinguished from Collation an order

of collation before an order of distribution is

merely an order to include the props in the

inventory and is merely interlocutory; WON

collation exists is an issue to be determined

later when an order for distribution of the

estate after its net remainder has been

arrived at

No execution may issue where there is adverse

claimant the determination of the ques of

title being provisional, it is not binding on a

person purporting an adverse title bec his

possessory rights, if any, have not yet been

ventilated

Jurisdiction to determine Heirs exclusively

within the range of the administration

proceedings and cannot properly be made an

independent action

Jurisdiction to Distribute Estate has power

to determine the proportion or parts to w/c

each distribute is entitled; to hold that a

separate and independent action is necessary

to that effect would be contrary to the general

tendency of the jurisprudence re: avoiding

multiplicity of suits, and is expensive,

dilatory, and impractical

Jurisdiction to Award Attys Fees application

may be made before and passed upon by the

PC in the same proceedings where attys

services were rendered

Settlement upon Dissolution of Marriage

governed by the laws of intestate succession in

Spec Procs- When the marriage is dissolved by the

death of the husband or wife, the

community property shall be inventoried,

administered, and liquidated, and the

debts thereof paid, in the TP or IP of the

deceased spous

- The entire conjugal partnership property

of the marriage and not just the portion

belonging to the deceased is under

administration

- Cf. Arts. 103-104, 130-132, Family Code

2. Presumption of death

Rule 73, Sec. 4. Presumption of death.For

purposes of settlement of his estate, a person

shall be presumed dead if absent and unheard

from for the periods fixed in the Civil Code.

But if such person proves to be alive, he shall

be entitled to the balance of his estate after

payment of all his debts. The balance may be

recovered by motion in the same proceeding.

CC, Art. 390. After an absence of seven years,

it being unknown whether or not the absentee

still lives, he shall be presumed dead for all

purposes, except for those of succession.

The absentee shall not be presumed dead for

the purpose of opening his succession till after

an absence of ten years. If he disappeared

after the age of seventy-five years, an absence

of five years shall be sufficient in order that

his succession may be opened. (n)

CC, Art. 391. The following shall be presumed

dead for all purposes, including the division of

the estate among the heirs:

(1) A person on board a vessel lost during a

sea voyage, or an aeroplane which is missing,

who has not been heard of for four years since

the loss of the vessel or aeroplane;

(2) A person in the armed forces who has

taken part in war, and has been missing for

four years;

(3) A person who has been in danger of death

under other circumstances and his existence

has not been known for four years. (n)

FC, Art. 41. A marriage contracted by any

person during subsistence of a previousmarriage shall be null and void, unless before

the celebration of the subsequent marriage,

the prior spouse had been absent for four

consecutive years and the spouse present has

a well-founded belief that the absent spouse

was already dead. In case of disappearance

where there is danger of death under the

circumstances set forth in the provisions of

Article 391 of the Civil Code, an absence of

only two years shall be sufficient.

For the purpose of contracting the subsequentmarriage under the preceding paragraph the

spouse present must institute a summary

proceeding as provided in this Code for the

declaration of presumptive death of the

absentee, without prejudice to the effect of

reappearance of the absent spouse. (83a)

Notes:

NO Independent action for Declaration of

Presumption of Death disputable

presumptions of death in the RoC may be

invoked either in an action or in a special

proceeding w/c is tried or heard by and

submitted for decision to a competent court

Presumption of Death under A391,CC must

yield to preponderance of evidence depending

on the circumstance, a person may already be


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right to continue as such until the appeal is

finally disposed of (Relucio vs San Jose).

Limit or Extent of Administration only to the

assets of a decedent found within the state or

country where it was granted

4. Exceptions to the General Rule on

Settlement of Estates

Different Modes of Settlement of Estate of

Deceased Persons

(a) Extrajudicial settlement of Estate

(b) Partition

(c) Summary Settlement of Estates of Small

Value

(d) Probate of Will

(e) Petition for Letters of Administration in

cases of intestacy

a. Extrajudicial Settlement by Agreement

among/between Heirs

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 inthe 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.

Notes:

Judicial Administration Not Favored there

is nothing w/c prohibits the heirs from

institution SP for the administration of the IE,

if they cannot agree in the extrajudicial

partition and apportionment of the same

- When a person dies w/o leaving pending

obligations to be paid, his heirs, whether

of age or not, are not bound to submit the

property to a JA, or to apply for the appt

of an administrator by the Court. If there

are no debts, there is no reason why the

estate should be burdened with the cost

and expenses of an administrator

There Must be a Good reason to Warrant

Judicial Administration R74.1 does not

preclude the heirs from instituting admin proc

even if there are no debts or obligations, if

they do not desire to resort for good reasons to

an ordinary action for partition

Good Reason depends on the Circumstance of

Each Case

(a) Dispute among heirs is not a good reason

questions as to ownership of the

property belonging to the deceased may be

ventilated in the partition proceedings

(b) Multiplicity of suits not a good reason

same objective can be achieved in a R69

action

(c) To have legal capacity to appear is not a

good reason

Validity of Oral Partition there is no law

that requires partition among heirs to be in

writing for it to be valid

- The object of putting the partition in a pubdoc and registration serve as constructive

notice to others. The intrinsic validity of

partition not executed with the prescribed

formalities does not come into play when

there are no creditors or the rights of

creditors are not affected. Where no such

rights are 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

Validity of Compromise Agreement such is

binding upon the parties upon the perfection

of the contract, even without previous Court

authority


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Heirs Cannot Divest the Court of Its Already

Acquired Jurisdiction filing of the app for

probate of will and pub thereof by the mere

fact of dividing and distributing

extrajudicially the estate of the deceased

among themselves; if the extrajudicial

partition (EP) made by the heirs is submitted

to the curt and approved after verification

that it does not prejudice the rights of 3rd

parties, the TP pending would have been

legally terminated

- An EP of the estate of a deceased by the

heirs become a judicial partition after its

approval by the court w/c had previously

acquired juris of the estate, but as the TP

is terminated w/o the necessary pub of

notice to creditors and other interested

persons in the estate req in a reg JA, theeffects of such partition would be the same

as if it had been effected extrajudicially

w/o the intervention of the court under

R74.1, subject to the claims against the

distributes by persons mention in R74.4

and .5

b. Summary Selemen o !saes o Small

"alue

Rule 74, Sec. 2. Summary settlement of

estates 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 if

made to appear to the Regional Trial Court

having jurisdiction of the 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 interested 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 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

registers office.

Notes:

Proceeding is under the juris of the MeTC,

MTC, MCTC where value of the estate does

not exceed 100k; or 200k if in Metro Mla

2) Remedies against Extrajudicial Settlement

(or Partition)

a) #onributon rom Disributon$ !%ecuton

agains &ond or Sale o Realy o Deceden

Rule 74, Sec. 3. Bond to be filed by

distributees.The court, before allowing a

partition in accordance with the provisions ofthe preceding section, may 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.

Sec. 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, thatan 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.

Notes:


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Rule on Limitations Not Applicable To Those

Who Had No Knowledge of Settlement R74.4

is only a bar against the parties who had

taken part in the extrajudicial proceedings,

but not against 3rdpersons not parties thereto

Prescriptive Period to Annul Settlement

It was previously held in Gerona vs. De

Guzman that the action to annul a deed of

extrajudicial settlement upon the ground of

fraud may be filed w/in 4 years from the

discovery of the fraud. Such discovery is

deemed to have taken place when said

instrument was filed with Register of Deeds

and new certificates of title were issued.

Inaction and neglect of a party to assert a

right can convert a valid claim into a stale a

demand.

However, the SC inAmerol vs. Bagumbaran,

clarified that before the effectivity of the NCC,

the old Code of Civil Procedure governed

prescription which provided that an action for

relief on the ground of fraud shall be brought

w/in 4 yrs upon discovery of the fraud. In the

present CC, just as an implied or constructive

trust is an offspring of the law (A1456), so is

the corresponding obligation to reconvey the

prop and the title thereto in favor of the true

owner. In this context, A1144 is applicable.A1144 provides:

The ff. actions must be brought w/in 10 yrs

from the time the right of action accrues:

(1) upon a written contract;

(2) upon an obligation created by law;

(3) upon a judgment.

Hence, an action for reconveyance based on an

implied/constructive trust prescribes in 10 yrs

from accrual of the right of action. Gerona was

decided that way bec of the law in force at that

time.

The Almerol doctrine was reiterated in

Marquez vs. CA, Caro vs. CA, and Alfredo vs.

Borras

When 10-yr period reckoned from the alleged

fraudulent registration or date of issuance of

the certificate of title over the property (GSIS

vs Santiago)

Same; Exception prescriptive pd for the

filing of the axn for reconveyance based on an

implied trust should be reckoned from the

actual discovery of the fraud wrt the

registration of the title when such was tainted

with bad faith

Rescission as Remedy for Preterition

provided in A1104, CC: a partition made with

preterition of any of the compulsory heirs

shall not be rescinded, unless it be proved that

there was bad faith or fraud on the part of the

other persons interested

Exception to Prescription of Actions when

the plaintiff is in possession of the land to be

reconveyed. Action for reconveyance may be

filed despite the lapse of the 10-yr pd, when

based on fraud, is imprescriptible as long as

the land has not passed to an innocent

purchaser for value.

b) Petition for Relief

Rule 38

SECTION 1.Petition for relief from judgment,order, or other proceedingsWhen a judgment

or final order is entered, or any other

proceeding is thereafter taken against a party

in any court through fraud, accident, mistake,

or excusable negligence, he may file a petition

in such court and in the same case praying

that the judgment, order or proceeding be set

aside. (2a)

SEC. 2. Petition for relief from denial of

appealWhen a judgment or final order is

rendered by any court in a case, and a partythereto, by fraud, accident, mistake, or

excusable negligence, has been prevented from

taking an appeal, he may file a petition in

such court and in the same case praying that

the appeal be given due course. (1a)

SEC. 3. Time for filing petition; contents and

verification. A petition provided for in either

of the preceding sections of this Rule must be

verified, filed within sixty (60) days after the

petitioner learns of the judgment, final order,

or other proceeding to be set aside, and notmore than six (6) months after such judgment

or final order was entered, or such proceeding

was taken; and must be accompanied with

affidavits showing the fraud, accident,

mistake, or excusable negligence relied upon,

and the facts constituting the petitioners good

and substantial cause of action or defense, as

the case may be. (3)

SEC. 4. Order to file an answer If the

petition is sufficient in form and substance to

justify relief, the court in which it is filed,shall issue an order requiring the adverse

parties to answer the same within fifteen (15)

days from the receipt thereof. The order shall

be served in such manner as the court may

direct, together with copies of the petition and

the accompanying affidavits. (4a)


9/24

SEC. 5. Preliminary injunction pending

proceedings.The court in which the petition

is filed, may grant such preliminary injunction

as may be necessary for the preservation of

the rights of the parties, upon the filing by the

petitioner of a bond in favor of the adverse

party, conditioned that if the petition is

dismissed or the petitioner fails on the trial of

the case upon its merits, he will pay the

adverse party all damages and costs that may

be awarded to him by reason of the issuance of

such injunction or the other proceedings

following the petition; but such injunction

shall not operate to discharge or extinguish

any lien which the adverse party may have

acquired upon the property of the petitioner.

(5a)

SEC. 6. Proceedings after answer is filed.After the filing of the answer or the expiration

of the period therefor, the court shall hear the

petition and if after such hearing, it finds that

the allegations thereof are not true, the

petition shall be dismissed; but if it finds said

allegations to be true, it shall set aside the

judgment or final order or other proceeding

complained of upon such terms as may be just.

Thereafter the case shall stand as if such

judgment, final order or other proceeding had

never been rendered, issued or taken. The

court shall then proceed to hear and

determine the case as if a timely motion for a

new trial or reconsideration had been granted

by it. (6a)

SEC. 7. Procedure where the denial of an

appeal is set aside .Where the denial of an

appeal is set aside, the lower court shall be

required to give due course to the appeal and

to elevate the record of the appealed case as if

a timely and proper appeal had been made.

(7a)

c) Reopening by Intervention within

Reglementary Period

Rule 19

SECTION 1. Who may intervene.A person

who has a legal interest in the matter in

litigation, or in the success of either of the

parties, or an interest against both, or is so

situated as to be adversely affected by a

distribution or other disposition of property in

the custody of the court or of an officer thereof

may, with leave of court, be allowed to

intervene in the action. The court shall

consider whether or not the intervention will

unduly delay or prejudice the adjudication of

the rights of the original parties, and whether

or not the intervenors rights may be fully

protected in a separate proceeding. (2[a], [b]a,

R12)

SEC. 2. Time to intervene.The motion to

intervene may be filed at any time before

rendition of judgment by the trial court. A

copy of the pleading-in-intervention shall be

attached to the motion and served on theoriginal parties. (n)

SEC. 3. Pleadings-in-intervention.The

intervenor shall file a complaint-in-

intervention if he asserts a claim against

either or all of the original parties, or an

answer-in-intervention if he unites with the

defending party in resisting a claim against

the latter. (2[c]a, R12)

SEC. 4. Answer to complaint-in-intervention.

The answer to the complaint-in-interventionshall be filed within fifteen (15) days from

notice of the order admitting the same, unless

a different period is fixed by the court. (2[d]a,

R12)

d) New Action to Annul Settlement within

Reglementary Period

4. Period or #laim o 'inor or ncapaciaed

Person

Rule 74, Sec. 5. Period for claim of minor or

incapacitated person.If on the date of theexpiration of the period of two (2) years

prescribed in the preceding section the person

authorized to file a claim is a minor or

mentally incapacitated, or is in prison or

outside the Philippines, he may present his

claim within one (1) year after such disability

is removed.

5. Probate Proceedings

1) urisdicton and "enue

BP 129, Sec. 19. Jurisdiction in civil cases.

Regional Trial Courts shall exercise

exclusive original jurisdiction.

(4) In all matters of probate, both testate

and intestate, where the gross value of the

estate exceeds One hundred thousand

pesos (P100,000.00) or, in probate matters

in Metro Manila, where such gross value

exceeds Two Hundred thousand pesos

(P200,000.00)

Sec. 33. Jurisdiction of Metropolitan TrialCourts, Municipal Trial Courts and

Municipal Circuit Trial Courts in Civil

Cases. Metropolitan Trial Courts,

Municipal Trial Courts, and Municipal

Circuit Trial Courts shall exercise:

(1) Exclusive original jurisdiction over civil


10/24

actions and probate proceedings, testate

and intestate, including the grant of

provisional remedies in proper cases,

where the value of the personal property,

estate, or amount of the demand does not

exceed One hundred thousand pesos

(P100,000.00) or, in Metro Manila where

such personal property, estate, or amount

of the demand does not exceed Two

hundred thousand pesos (P200,000.00),


kind, attorney's fees, litigation expenses,

and costs, the amount of which must be

specifically alleged: Provided, That

interest, damages of whatever kind,

attorney's fees, litigation expenses, and

costs shall be included in the

determination of the filing fees: Provided,

further, That where there are several

claims or causes of actions between the

same or different parties, embodied in the

same complaint, the amount of the

demand shall be the totality of the claims

in all the causes of action, irrespective of

whether the causes of action arose out of

the same or different transactions;

(2) Exclusive original jurisdiction over

cases of forcible entry and unlawful

detainer: Provided, That when, in suchcases, the defendant raises the questions

of ownership in his pleadings and the

question of possession cannot be resolved

without deciding the issue of ownership,

the issue of ownership shall be resolved

only to determine the issue of possession;

and

(3) Exclusive original jurisdiction in all

civil actions which involve title to, or

possession of, real property, or any

interest therein where the assessed valueof the property or interest therein does not

exceed Twenty thousand pesos

(P20,000.00) or, in civil actions in Metro

Manila, where such assessed value does

not exceed Fifty thousand pesos

(P50,000.00) exclusive of interest,

damages of whatever kind, attorney's fees,

litigation expenses and costs: Provided,

That in cases of land not declared for

taxation purposes, the value of such

property shall be determined by the

assessed value of the adjacent lots.

2) Allo*ance+Disallo*ance o ,ill- Process

Rule 75, Sec. 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.

CC, Art. 783. A will is an act whereby a

person is permitted, with the formalities

prescribed by law, to control to a certain

degree the disposition of this estate, to

take effect after his death.

Notes:

Definition of a Will a personal, solemn,

revocable and free act by which a capacitated

person disposes of his property and rights and

declares or complies with duties to take effect

after his death (Vitug vs CA).

Probate of Will is MANDATORY no property

shall pass either real or personal propertyunless it is proved and allowed in accordance

with the RoC

Same; Rationale unless the will is probated

and notice thereof is given to the whole world,

the right of the person to dispose of his

property by will may be rendered nugatory

Same; Exception A1056, CC: If the testator

should make a partition of his properties by

an act inter vivos, or by will, such partition

shall stand in so far as it does not prejudice

the legitime of the forced heir.

Probate Does Not Look Into Intrinsic Validity

GR: the courts authority in probate proc

are limited only to passing upon the extrinsic

validity of the will sought to be probated, the

due execution thereof, the testators

testamentary capacity, and the compliance

with the requisites or solemnities prescribed

by law. The question of the intrinsic validity of

a will normally comes only after the court hasdeclared that the will has been duly

authenticated.

Extrinsic Validity of the Will whether the

testator, being of sound mind, freely executed

the will in accordance with the formalities

prescribed by law

Same; How Determined

(a) Substantial Compliance is sufficient

where the purpose of the law has been

satisfied, the reason being that thesolemnities surrounding the execution of

wills are intended to protect the testator

from all kinds of fraud and trickery but

never intended to be so rigid and inflexible

as to destroy the testamentary privilege

(b) Formal Imperfections to be Brushed Aside

when they do not affect its purpose and


11/24

which, when taken into account, may only

defeat the testators will

EXCEPTION: When Probate Court May Pass

Upon Intrinsic Validity THE PRINCIPLE

OF PRACTICAL CONSIDERATIONS-when remand of the case will result waste of

time, effort, expense, plus added anxiety

(Nuguid vs. Nuguid).

- Where circumstances demand that IV of

testamentary provs be passed upon before

the EC of the will is resolved (Cayetano

vs. Leonides).

Same; Remedy of Certiorari and Prohibition is

Available where the grounds for dismissal

are indubitable, in order to correct a

GADALEJ committed by the TC when itdismissed the case, even if remedy of appeal

exists, where practical considerations demand

it, e.g. the probate of a will becomes an idle

ceremony bec the Will is intrinsically void

Same; Principle Not Applied where meat of

controversy is not intrinsic validity

Dismissal Improper Where Issues are

Controversial e.g. preterition and validity of

disinheritance

Principle Applicable Only Where Intrinsic

Invalidity is Apparent on the Face of the Will

as enunciated inManinang vs. CA

Decree of Probate is Conclusive as to Its Due

Execution cannot be impugned on any of the

grounds authorized by law, except that of

fraud, in any separate or independent action

or proceeding, for reasons of public policy,

judicial orderliness, economy and judicialtime, and the interests of litigants, as well as

the peace and order of society which requires

that stability be accorded the final judgments

of the courts (applies even if the decision is

incorrect)

- Probate during the lifetime of the testator

is ordinarily terminated after the will is

allowed to probate

Rule 76, Sec. 1.Who may petition for the

allowance of will.Any executor, devisee, or

legatee named in a will, or any other personinterested 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.

SEC. 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.

SEC. 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 andplace 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.

SEC. 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 tothe person named as executor, if he be not the

petitioner, also, to any person named as co-

executor not petitioning, if their places of

residence be known. Personal service of copies

of the notice at least ten (10) days before the

day of hearing shall be equivalent to mailing.


12/24

If the testator asks for the allowance of his

own will, notice shall be sent only to his

compulsory heirs.

SEC. 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 thereto.

CC, Art. 838. No will shall pass either real or

personal property unless it is proved and

allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime,

petition the court having jurisdiction for the

allowance of his will. In such case, the

pertinent provisions of the Rules of Court for

the allowance of wills after the testator's a

death shall govern.

The Supreme Court shall formulate such

additional Rules of Court as may be necessary

for the allowance of wills on petition of the

testator.

Subject to the right of appeal, the allowance of

the will, either during the lifetime of the

testator or after his death, shall be conclusive

as to its due execution. (n)

Art. 839. The will shall be disallowed in any of

the following cases:

(1) If the formalities required by law have not

been complied with;

(2) If the testator was insane, or otherwise

mentally incapable of making a will, at the

time of its execution;

(3) If it was executed through force or under

duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper

pressure and influence, on the part of the

beneficiary or of some other person;

(5) If the signature of the testator was

procured by fraud;

(6) If the testator acted by mistake or did not

intend that the instrument he signed shouldbe his will at the time of affixing his signature

thereto. (n)

Notes:

Meaning of Interested Party one who would

be benefited by the estate such as an heir, or

one who has a claim against it like a creditor.

Hence, one who is only indirectly interested in

a will may not interfere in its probate

Jurisdiction; How Acquired

(1) Attaching of Mere Copy of Will is

Sufficient the original need not be

attached to the petition for probate, but

this is without prejudice to its production

at the hearing or when the court requires

it; annexing of the original will is not a

jurisdictional requirement

(2) Delivery of Will Sufficient even if No

petition filed jurisdiction is on the court

upon delivery of the will even if the

petition itself is filed later. Upon the

deposit of the Will, the court could motuproprio, have taken steps to fix the time

and place for proving the will, and issue

the corresponding notices prescribed

(3) The court acquires juris upon the filing of

the orig pet and compliance w/ R76.3 and .

4

Jurisdictional facts must be established first

before the court acquire juris over the probate

and admin procs, the app must allege the JF

which are:

(a) Fact of death of the decedent(b) His residence at the time of his death in

the province of where the probate court is

sitting; or, if he is an inhabitant of a

foreign country, his leaving his estate in

such province

Probate of the Will is In Rem the notice by

publication as a prereq to the allowance of a

will is constructive notice to the whole world,

and when probate is granted, the judgment is

binding upon everybody, even against the

State. Thus, the PC must cause notice through

pub of the pet after receiving it; otherwise, the

proc for the settlement of the estate is void

and should be annulled


13/24

Notice of Hearing to the designated heirs,

legatees, devisees, executors Required by mail

or personally

Grounds for Disallowance Cf. Arts. 787-788,

791, 795-798, 802, 804-819 of the Civil Code

Same; List in R76.9 and A839 of the CC is

Exclusive no other grounds can serve to

disallow a will

Compliance With Formalities Required

While public policy favors the probate of a

will, it does not follow that every will

presented for probate should be allowed

Same; Notarial Wills formal solemnities

provided by Arts. 805 and 806, CC must be

complied with

Same; Holographic Wills what assures

authenticity is the req that they be totally

autographic or handwritten by the testator

himself (A810, CC)

- A813 affects the validity of the

dispositions contained in the HW but not

its probate. Formal defects will render

disposition ineffective but the whole will

not be necessarily invalidated.- The HW can still be admitted to probate

even if A814 of CC has not been complied

with

Same; The Substantial Compliance Rule If

the will has been executed in substantial

compliance with the formalities of the law,

and the possibility of bad faith and fraud is

obviated, the Will should be admitted to

probate

Separate Wills may be Probated Jointly

what the law prohibits is the making of joint

wills, either for the testators reciprocal

benefit or for the benefit of 3rdpersons (see

Sps. Cunanan case)

3) Duy o #usodian+!%ecuor o ,ill

Rule 75, Sec. 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, orto the executor named In the will.

SEC. 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 testator, or within twenty (20) days

after he knows that be 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.

SEC. 4.Custodian and executor subject to

fine for neglect.A person who neglects

any of the duties required in the two last

preceding sections without excuse

satisfactory to the court shall be fined not

exceeding two thousand pesos.

SEC. 5.Person retaining will may be

committed.A person having custody of awill 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.

Notes:

Failure to Attach Original Will to the Petition

not critical where will itself was adduced in

evidence

4) Proof of Will

Rule 76. Sec. 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. If no

person appears to contest the allowance of the

will, the court may grant allowance thereof on

the testimony of one of the subscribingwitnesses only, if such witness testify 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.

SEC. 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


14/24

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.

SEC. 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 beasked 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.

SEC. 8. Proof when witnesses dead or insane

or do not reside in the Philippines.If it

appears at the time 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 thesanity 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.

SEC. 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 he 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 may, in his

turn, present such additional proof as may be

necessary to rebut the evidence for the

contestant.

SEC. 13. Certificate of allowance attached to

proved 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.

Notes:

Facts which MUST be proved for allowance of

lost/destroyed Will

(1) That the will has been duly executed by

the testator;

(2) That the will was in existence when the

testator died, or if it was not, that it has

been fraudulently or accidentally

destroyed in the lifetime of the testator

without his knowledge; and(3) That the provisions of the will are clearly

established by at least 2 credible

witnesses.

The 1stand 3rdfacts constitute secondary

evidence in lieu of the original of the will. But

before secondary evidence may be admitted,

the loss of the will must be proved. The 2nd

fact is required to be proved to preclude the

inference that the testator destroyed his own

will. In other words, if the will did not exist at

time of the testators death, and there is noproof that it has been destroyed by another

without the testator himself destroying his

own will, thus, revoking it.

Weight of Testimonial evidence a will may be

allowed even if some witnesses do not

remember having attested to it, if other

evidence satisfactorily show due execution

Same; Test WON a witness is deemed to have

signed in the presence of each other not

whether he did see the signing of the will but

whether he was in a position to see if he chose

to do so

5) Contest of Will

Rule 76, Sec. 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.

SEC. 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


15/24

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

Philip pines 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 thesignature are in the handwriting of the

testator; in the absence of any competent

witness, and if the court deem it necessary,

expert testimony may be resorted to.

Notes:

When Authenticity of Will Not Questioned

not necessary to present the 3 witnesses

required by A811 of the CC

6) Allowance of Will Proved Outside of the

Philippines and Administration of State

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 Regional Trial

Court in the Philippines.

SEC 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.

SEC. 3. When will allowed, and effect thereof.

If it appears at the hearing that the will

should be allowed in the Philippines, the court

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 proved and

allowed in such court.

SEC. 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.

CC, Art. 17. The forms and solemnities of

contracts, wills, and other public instruments

shall be governed by the laws of the country in

which they are executed.

When the acts referred to are executed before

the diplomatic or consular officials of the

Republic of the Philippines in a foreign

country, the solemnities established by

Philippine laws shall be observed in their

execution.

Prohibitive laws concerning persons, their acts

or property, and those which have, for their

object, public order, public policy and goodcustoms shall not be rendered ineffective by

laws or judgments promulgated, or by

determinations or conventions agreed upon in

a foreign country. (11a)

Notes:

GR Art. 816 of the Civil Code must be

complied with. It provides: 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.

Evidence necessary for the reprobate or

allowance of wills which have been probated

outside of the Philippines

(1) the 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 insuch 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 will


16/24

Same; Rules of Evidence R132 on presenting

official records not kept in the PHL must be

complied with:

SEC. 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 a

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.(25a)

SEC. 25. What attestation of copy must state.

Whenever a copy of a document or record is

attested for the purpose of evidence, the

attestation must state, in substance, that the

copy is a correct copy of the original, or a

specific part thereof, as the case may be. The

attestation must be under the official seal of

the attesting officer, if there be any, or if he be

the clerk of a court having a seal, under the

seal of such court.(26a)

Same; Rationale Philippine courts cannot

take JN of foreign laws

Notice of Hearing for Allowance Required

wrt notices, the will probated abroad should

be treated as if it were an original will or a

will that is presented for probate for the first

time. R76.3 and .4 must be followed.

Territorial Limits of Administration administration extends only to the assets of

the decedent found within the state or country

where it was granted; has no power over prop

in another state/country

Ancillary Administration Necessary for prop

of a decedent who owns property situated in

the country of his domicile as well as in a

foreign country, administration shall be had

in both country. That which is granted in the

decedents domicile is the principal

administration while any other admin is

ancillary.

6. Letters Testamentary and Administration

1) Executors and Administrators

Rule 78, Sec. 1. Who are incompetent to serve

as a executors or administrators.No person

is 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.

SEC. 2. Executor of executor not to administer

estate.The executor of an executor shall not,

as such, administer the estate of the first

testator.

SEC. 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

SEC 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

SEC. 5. Where some co-executors disqualified

others may act.When all of the executors

named in a will cannot act because of

incompetency, refusal to accept the 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.

SEC. 6. When and to whom letters ofadministration 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


17/24

request that administration be granted to

some other person, it 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 suchother person as the court may select.

Rule 88, Sec. 15. Time for paying debts and

legacies fixed, or extended after notice, within

what periods. On granting letters

testamentary or administration the court shall

allow to the executor or administrator a time

for disposing of the estate and paying the

debts and legacies of the deceased, which shall

not, in the first instance, exceed one (1) year;

but the court may, on application of the

executor or administrator and after hearing onsuch notice of the time and place therefor

given to all persons interested as it shall

direct, extend the time as the circumstances of

the estate require not exceeding six (6) months

for a single extension nor so that the whole

period allowed to the original executor or

administrator shall exceed two (2) years.

SEC. 16. Successor of dead executor or

administrator may have time extended on

notice within certain period. When an

executor or administrator dies, and a newadministrator of the same estate is appointed,

the court may extend the time allowed for the

payment of the debts or legacies beyond the

time allowed to the original executor or

administrator, not exceeding six (6) months at

a time and not exceeding six (6) months

Beyond the time which the court might have

allowed to such original executor or

administrator; and notice shall be given of the

time and place for hearing such application, as

required in the last preceding section.

Notes:

Grounds for Disqualification

Negative factors for selection of Administrator

(1) Minors and non-residents disqualified

(2) Drunkenness what the rule

contemplates is that excessive, inveterate,

and continued use of intoxicants, to such

an extent as to render the subject of the

habit as unsafe to entrust with the care of

property or the transaction of business

(3) Improvidence that want of care andforesight in the mgt of property which

would likely to render the estate and

effects of the intestate unsafe, and liable

to be lost or diminished in value, in case

the administration should be committed to

the improvident person

Symptoms of Improvidence carelessness,

indifference, prodigality, wastefulness, or

negligence in reference to the care, mgt,

and preservation of property; e.g.

gambling habits might establish

improvidence

(4) Want of Understanding where it

amounts to lack of intelligence as to

subject one to sinister influence or

coercion against the general interest of the

estate will constitute a sufficient objection;

weakness of mindper se, however, is not

an automatic ground for disqualification

(5) Want of Integrity accusation must be

certain and grave in nature, established

by proof which would at least approach

the certainty require for conviction of a

crime in order for the ground to besustained

(6) Moral turpitude an act of baseness,

vileness, or depravity in the private and

social duties which a man owes his

fellowmen, to society in general, contrary

to the accepted and customary rule of

right and duty between man and woman

or conduct contrary to justice, honesty,

modesty or good morals

Same; Court cannot add new causes of

disqualification no authority to disqualify ifground is not provided in the statute

Same; Antagonistic Interest generally, the

courts do not regard one whose personal

interests are so adverse to the interests of a

decedents estate and of those entitled to its

distribution that both cannot be fairly

prevented by the same person as a proper

person to administer the estate.

Same; Same An administrator should be

able to devote his time and mind to the

burden of his trust; as such, he cannot be in

one place while the estate administered is in

another place for he cannot efficiently

discharge his duties

Administrator May Be a Stranger to the

Decedent he doesnt have to be an heir

2) Opposition to Issuance

Rule 79

SECTION 1. Opposition to issuance of letterstestamentary. 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


18/24

grounds. A petition may, at the same time, be

filed for letters of administration with the will

annexed.

SEC. 2. Contents of petition for letters of

administration.A petition for letters of

administration must be filed by an interestedperson 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.

SEC. 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 otherpersons believed to have an interest in the

estate, in the Manner provided in sections 3

and 4 of Rule 76.

SEC. 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 whose letters are prayed

therein, or on the ground of the contestants

own right to the administration, and may pray

that letter issue to himself, or to anycompetent person or persons named In the

opposition.

SEC. 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 administrationto the party best entitled thereto.

SEC. 6. When letters of administration

granted to any applicant.Letters of

administration may be granted to any

qualified applicant, though it appears that

there are other competent persons having

better right to the administration, if such

persons fail to appear when notified and claim

the issuance of letters to themselves.

Notes:

Jurisdictional facts Must be established a

party may not be allowed to defeat the

purpose of an essentially valid petition for the

settlement of the estate of a decedent by

raising matters that are irrelevant and

immaterial to the petition

Interest; NOT a jurisdictional element it is

considered, instead, a lack of legal capacity to

institute proceedings for which a MTD may lie

Same; Requirement must be material and

direct, not merely contingent or indirect

Failure to allege lack of interest; consequences

may be barred by waiver or estoppels

Defects in Petition; Cure by failure to make a

timely objection

Notice and Hearing is Jurisdictional The PC

must cause notice through publication of the

petition after it receives the same. The

purpose of this notice is to bring all the

interested persons within the courts

jurisdiction so that judgment therein becomes

binding on all the world. The notice is

essential to the procs validity in order that no

person may be deprived of his right to

property without due process of law. Failure

to comply with this requirement will render

the settlement proceeding void.

3) Special Administrators

Rule 80, Sec. 1. Appointment of special

administrator.When there is delay ingranting 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.

SEC. 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

executor 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


19/24

orders sold. A special administrator shall not

be liable to pay any debts of the deceased

unless so ordered by the court.

SEC. 3. When powers of special administrator

cease. Transfer of effects. Pending suits.

When letters testamentary or ofadministration 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.

Rule 86, Sec. 8. Claim of executor or

administrator against an estate.If theexecutor 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.

Notes:

Notice and Publication must be complied

with first before jurisdiction is acquire by the

probate court

Special Administrator the representative of

the decedent appointed by the PC to care for

and preserve his estate until an executor or

general administrator is appointed

Same; Duties while SAs may have respectiveinterests to protect, they are officers of the

court, subject to the supervision and control of

the PC and are expected to work in the best

interests of the entire estate, its smooth

administration, and its earliest settlement;

whatever difference there may be between

them shall be ironed out fairly and objectively

for the attainment of that end

Same; Same; Submission of Inventory has to

be performed within a reasonable period, if

not as soon as practicable, in order to preserve

the estate, and protect the heirs of the

deceased

Same; When One May be Appointed when

there is delay in granting letters testamentary

or of administration occasioned by an appeal

from the allowance or disallowance of a will or

some other cause,

e.g. qualifications of the

executor/administrator is questioned; appeal

pending re: removal of an E/A; parties cannot

agree among themselves

Same; Appointment lies entirely in the

sound discretion of the court. The priority of

certain persons appt as administrator does

not apply to the selection of a SA

Order of Appointment Discretionary but the

judge is not allowed to be parties, or to make

his personal likes and dislikes prevail over, or

his passion to rule his judgment

Same; Need to be Represented in the Mgt ofthe Estate the executrixs choice of SA,

considering her own inability to serve and the

wide latitude of discretion given her by the

testatrix in her Will is entitled to the highest

consideration

Same; Limits of Discretion sound, not

whimsical or contrary to reason, justice,

equity, or legal principle

Nature of Order Appointing SA

interlocutory; hence, no appeal lies from the

appt of a SA

4) Dutes+eneral Po*ers o !%ecuors$

Adminisraors and Special Adminisraors

Rule 84, Sec. 1. Executor or administrator to

have access to partnership books and

property. How right enforced.The executor

or administrator of the estate of a deceased

partner shall at all times have access to, and

may examine and take copies of, books and

papers relating to the partnership business,and may examine and make invoices of the

property belonging to such partnership; and

the surviving partner or partners, on request,

shall exhibit to him all such books, papers,

and property in their hands or control. On the

written application of such executor or

administrator, the Court having jurisdiction of

the estate may order any such surviving

partner or partners to freely permit the

exercise of the rights, and to exhibit the books,

papers, and property, as in this section

provided, and may punish any partner failingto do so for contempt.

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Midterms - Part 1 Annotation

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