FMS LECTURE 2020
SPECIAL PROCEEDINGS
Notes
Definition of special proceeding – Sec. 3, Rule 1
E.g. settlement of estate of deceased – you want to prove that the testator is dead
In special proceedings, court has limited jurisdiction. In settlement of estate the court cannot rule
categorically on who is the owner of the property; that would be subject to a separate case for
accion reivindicatoria. If you want to claim the property owned by the estate, it is not to the
settlement court.
The court has limited jurisdiction so the settlement court has no jurisdiction to rule on the issue of
damages. Example, in a case for habeas corpus. In case there is an unlawful deprivation of liberty,
the court is without authority to award damages in habeas corpus. It does not mean that the party
unlawfully deprived of liberty is not to damages; he is entitled to damages but you cannot recover
in habeas corpus case. You should file it in separate ordinary action.
Settlement of estate of deceased person
What is the fact to be established in settlement of estate?
- One you should establish is that the person is dead; it is a declaration of rights: the right
of an heir or the right of succession
How can you prove the death?
- Generally, death is proved by means of death certificate. And then, the filing in a special
proceeding of a validity of the will.
However, it is not automatic that in a settlement of estate that the testator is dead.
Probate of will during life of testator
Why do we want to allow the probate of will during the life of testator? In probate, the issue is the
due execution of the will in accordance with the formalities provided under the Civil Code. it is
easier to prove it if the one who executed the will is the one who will seek (the will) to be probated
during his lifetime.
If you will probate the will during the lifetime of the testator, we cannot proceed with the settlement
of the estate, because succession only opens upon the death of the decedent. So, the probate
during the lifetime of the testator is only for purposes of due execution of the will and in accordance
with the formalities provided under the Civil Code. Hanggang doon lang. The proceeding will end
at the time of probate.
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Settlement of the estate proceedings shall only happen upon death of testator.
CASE: Maloles v. Pacita Delos Reyes Philipps, G.R. Nos. 129505, 133359
The Supreme Court said that the purpose of probate of will during the lifetime is for the purpose
of authenticating the will. Only proving the authentication of will
Example, after the authentication of the will, will not proceed to settlement of estate but will
proceed for the issuance of issuance of letters testamentary, pwede ba yon?
- No. Hanggang doon lang tayo sa probate of the will if made during the lifetime of the
testator.
What if after the filing of the probate of will during the lifetime, and subsequently the testator dies.
Subsequently, a petition for issuance of letters administration was filed. Is there violation of res
judicata?
- No violation of res judicata because in the first case, it is for the authenticity of the will;
letters testamentary is para na sa appointment of executor.
Even if the testator is not in fact dead, and there is no certainty whether the decedent is dead, the
court cannot just issue the order declaring the testator dead. If there are facts that would show by
clear and convincing evidence the presumption of death, pwede magproceed sa settlement of
estate. But the court cannot automatically assume.
Refer Rule 107
So, we can have, depending on the period of disappearance, a presumption of death for purposes
of opening the succession. As a rule, if one is absent, it is not automatically declared the person
dead. What is absentee? You will declare a person an absentee of having someone administer
the properties of the absentee. The period depends on whether there is an administrator left
behind or not. But a person cannot be absentee forever. Obviously, after the disappearance for
some time, there will be a time the status will be utilized to settle the estate, that’s why we will
have a presumption of death. No final decision on declaration of presumptive death
Art. 390, Civil Code
GR: Presumptive death - absence of 10 years for purposes of opening the succession. Not
absolute; disappeared after the age of 75 - 5 years sufficient for opening succession.
XCPN: Lesser than 5 years: 4 years. Disappearance in extraordinary circumstances “and other
circumstances”
If there is an absent person, e.g. for 10 years, the court will never issue an order declaring
presumptively dead for purpose of opening succession. Why? The court cannot declare a person
dead by presumption because presumption will not attain finality. Rather than having the court
declare that the person is dead, we will just apply the presumption under the Civil Code. The
presumption of death in CC for purposes of opening succession cannot be instituted in an action
independent with settlement of estate. You don’t file a separate case for declaration of death, you
can already file a case for settlement of estate and in that settlement case, you will show the
disappearance that would allow the application in the CC. The presumption will be applied. There
is no requirement for separate declaration that the person is presumptively dead. To repeat, if
there is presumption of death, it is only alleged during the settlement of estate.
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Art. 392, Civil Code – Remedy if the person declared presumptively dead is actually alive
If the absentee reappears, or when not appeared but his existence is proven. In that instance,
after settlement of estate, that person shall be allowed to recover his properties. It is not recovery
in the sense that as if no settlement of estate was made. Recovery of property at the condition at
the time of reappearance; when property alienated, he will able to recover the proceeds (price) of
the sale; may also claim fruits of the property or rent. Absentee is also entitled to the balance of
the estate after payment of his debts. The payment of the obligation stays with the creditors.
How can we get the balance?
- The balance may be claimed thru motion in the same proceeding.
There is always payment of the debt.
Jurisdiction, venue and process
Rule 73 – Venue and process
BP 129 – Jurisdiction
Sec. 19(4) – Gross value of the estate
- If the gross value of the estate exceeds P300,000 or P400,000, as the case may be –
RTC; does not exceed P300,000 or P400,000 - MTC
If the decedent is inhabitant is resident it does not matter whether the decedent is a citizen or
alien. His will shall be proven and granted, and estate settled in the province which he resides at
the time of death. Basis is the residence at the time of death.
Residence
“Resides” means actual residence, not legal residence or domicile, at the time of death. Place of
abode provided he resides therein with continuity, e.g. naghotel lang nung gabing yon, cannot be
said to reside therein, and must be physical habitation of a person. Physical presence is required
CASE: Eusebio v. Eusebio, G.R. No. L-8409
Decedent passed away while transferring his personal belongings from Pampanga to his house
in QC. He got the house in QC so that he can be near his doctor. He died before he could move
to QC. Where is the venue? Supreme Court laid guidelines in determining residence:
1. It must consider the capacity to choose or freedom of choice of residence;
2. Physical presence at the place chosen;
3. Intention to stay permanently. There must be continuity of residence
Here, no intention to remain QC because he moved just to be near his doctor for his heart ailment.
In other words, no intention to stay permanently. No intention to change his residence.
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If decedent is inhabitant of foreign country, venue is proper court in any province where the
property is found. Basis is the place where the estate can be found.
CASE: Cayetano v. Leonidas
Decedent was citizen and residence US, and have a property in Manila. Venue is obviously in
Manila.
Hence, jurisdiction is based on BP 129; Rule 73 does not involve jurisdiction. Venue Rule 73.
Venue is only a matter of procedure. Jurisdiction in BP 129 is jurisdiction over subject matter.
Sec. 1, Rule 73
Once it is filed with the court, the court assumes jurisdiction to the exclusion of other courts.
Not exclusive original jurisdiction in that sense; only means that if you file a petition for settlement
of estate in one court, then filed in subsequent court, the other courts cannot take cognizance of
the case. If there is already an intestate/estate proceeding filed, and subsequently a similar case
is filed, the subsequent court can refuse to take cognizance because dapat sa unang court, to the
exclusion of other courts.
Rule is not absolute:
- E.g. there is a settlement of estate case filed (meaning, there is no will, hence, testate).
Subsequently, a will was found and probate was filed. Even if nauna yung settlement case, ang
magprevail is the subsequent case. Because testate proceedings enjoy priority over intestate
proceedings. Because we give importance and priority to the will of the testator. This applies even
if the first case is already pending.
CASE: Rodriguez v. De Borja
Intestate succession is only subsidiary or subordinate to testate. Why? Intestacy only takes place
in the absence of a valid, operative will. If there is a valid, operative will, bye na si intestacy.
What if there is improper venue, is it fatal?
Venue is only procedural; since it is only procedural, if there is improper venue, this can be waive.
It is not jurisdictional. How can it be waived? By failure to object. When it is raised as an issue for
the first time in appeal, estopped ka na in assailing.
Settlement of estate upon dissolution of marriage
Art. 103, Family Code
- Absolute community of property
Art. 130
- Community Partnership of Gains
If marriage is terminated by death, ACP/CPG is terminated, liquidated. Saan? It is liquidated in
the settlement of estate of the deceased. ACP/CPG will be inventoried, administered, liquidated.
But after liquidation, hindi hahatiin agad. Pay for the debts first.
What happens if spouse dies, spouse did not instutite settlement proceedings? If no settlement
proceedings instituted, the surviving spouse shall still liquidate the APC/CPG/estate judicially or
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extrajudicially within 6 months from the death of the deceased spouse. Lumagpas ang 6 months
but no liquidation. Every disposition or encumbrance or alienation involving APC/CPG beyond 6
months without liquidation is void.
E.g. namatay ang babae, si lalaki hindinag file ng settlement of estate of the deceased; hindi rin
nag liquidate, then inalienate ang property, that alienation is void.
What else is the effect?
- If you did not also liquidate after death of one spouse, and subsequent marriage, the
property regime of the subsequent marriage is automatically separation of property. You
do not even need marriage settlement. Why? To protect the inheritance of the heirs in the
first marriage. If not separation and without marriage settlement, then the property from
the previous marriage will be infused to the subsequent marriage.
The probate court have the power to issue warrants and processes to compel the attendance of
witnesses and to effect court orders. Pwedeng Apprehension, imprisonment, especially those
who refuse to perform duty ordered by the court.
See R39 S11. Execution of special judgments. E.g., order to produce will. If refused, the remedy
is icocontempt ka ng court until complies. The person shall remain imprisoned until complies with
the order of judgment.
1. Deed of Extrajudicial Settlement – No need to go to the entire judicial settlement of estate;
pwedeng by written agreement among the heirs.
2. Affidavit of self-adjudication
Deed of extrajudicial settlement or affidavit of self-adjudication only applies if the decedent:
1. left no will;
2. there are no debts; and
3. heirs are all of legal age, or if there are minors, represented by duly authorized
representatives.
In these instances there is no need to get letters of administration. So, you can just extrajudicially
divide the estate among themselves. It allows the heirs to divide the estate among themselves
without delay and without the risk of the estate being dissipated. This is only when the decedent
does not leave any obligation.
Hindi ka na magaappoint ng administrator kasi wala naming babayarang debts. No administrator
required because there is no obligation or debts. Administrator only needed to sell or dispose
property for the payment of debt
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If decedent did not leave will, no outstanding obligation, but the heirs cannot agree among
themselves, the remedy is partition, instead of settlement of estate.
If only one heir, no debts left, and only sole heir, he may adjudicate upon himself the entire estate.
He will make on what is called affidavit of self-adjudication and may be filed in the Office of
Register of Deeds.
How to know that there is no debt? If no creditor does not file a petition for letters administration
within 2 years from the death, we can presume that the decedent left no debts.
Whether deed of extrajudicial settlement or affidavit of self-adjudication be in public instrument.
Binding upon the parties even if not public instrument, but you want to have it in a public
instrument because it is required to be filed and registered in RD, and only public instruments that
you can register with the RD. Payment of bond, conditioned on any claimant or heir who is
excluded. Let’s say sinabi walang debts pero meron pala, so the bond will answer for that.
The fact of extrajudicial settlement is not enough; it must be published in a newspaper one a week
for 3 consecutive weeks.
Section 2
Summary Settlement of Estates of Small Value
Value of estate does not exceed 10,000. May be filed with any appropriate MTC – any interested
estate may file it (heir, devisee, legatee, or creditor). The court will require:
- Notice to all interested parties
- Publication once a week for 3 consecutive weeks.
Summary hearing conducted not less than 1 month but not more than 3 months from last
publication. The court shall proceed summarily without appointment of EXECAD. If there is a will,
court shall grant allowance. The court will determine who is legally entitled to participate in the
estate, then the court will apportion and divide the estate. The court though cannot do that unless
the debts have been paid.
Before the court allows the partition, the court may allow the property to be distributed
Section 4
Two year period
2 years from settlement or distribution of estate, and there is an heir unduly deprived of his share
in the estate, may compel settlement of the estate in court only for the purpose of satisfying his
share of his estate unlawfully excluded. Hindi nya innullify yung entire settlement of estate; only
insofar as his portion is concerned; yung lawful participation nya lang. He can do that within 2
years if he is unlawfully deprived of his share. Same period, if it appears that there appears debts
outstanding, and have not been paid, the court that has jurisdiction over the estate may issue an
order upon hearing for setting the amount of the lawful participation. The court shall order how
much will be given to the distribute or to the creditor, as the case may be. The court may issue
execution against the bond, or the lien.
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So after the lapse of the two year period, a person deprived of lawful participation in the estate,
whether a creditor or an heir, precluded in exercising that right. However, the rule is not absolute.
2 year bar is only applicable to those who have prior notice and just did not participate.
Exceptions:
1. Minor, mentally incapacitated, or imprisoned, or outside the Philippines, was not able
to file a claim within the 2 year-period – may still present his claim within 1 year after the
disability is removed;
2. 2 year bar only applies if the partition was not null and void, i.e., is valid – A partition is
invalid if it excluded heirs who are entitled to the partition of the property. No extrajudicial
settlement shall not be binding to anyone who has not participated or had no notice
thereof. The rule on the 2-year bar presupposes notice; that you give notice to the heirs
but hindi nakapagfile ng claim i.e., called to participate but did not participate. But if you
could have not known because you have no notice, you are not bound by the same.
e.g. 5 heirs, apat lang gumawa ng SPA, yung isa excluded. Yung isa, hindi sya bound sa
extrajudicial settlement, it is invalid as to him.
Can it be argued that by publication, there is constructive notice, and therefore, everyone will be
barred by the period? Hindi. Mauuna ang deed of extrajudicial settlement. Only when there is
extrajudicial settlement, saka lang magkakaroon ng publication. It is not really a notice, because
it came out after the fact of the extrajudicial settlement. Hence, it cannot be considered as
constructive notice.
The purpose of the publication is not so much for notice, but it is for the protection of the creditors.
It was never intended to deprive the heir of the lawful participation in the estate. If you want to
bind the heirs, you give notice of the heirs.
- If you give notice but did not participate, they have two years. And in that two years, it
will not nullify the entire proceedings or the deed; they are only awarded insofar as to their
entitled participation or share;
- But if they were never given notice; they have no notice, they are not bound and the deed
of extrajudicial settlement is void.
CASE: Segura v. Segura
SC: Publication of the extrajudicial settlement is not constructive notice on those not notified (had
no knowledge) or those who did not take part thereto. It is not really not notice because the notice
was made after the fact of extrajudicial settlement. Kelangan may notice before the settlement.
The publication is only for the protection of the creditors, and not intended as notice for heirs
In Segura v. Segura, the property is alienated to third person. Supreme Court: Since the deed is
invalid because it excluded the heirs, the vendors can only sell their respective share. You cannot
sell the share of other co-owner share because it is not yours. So paano yon, the title has already
been issued in the name of the third person? The buyer holds the share of the other excluded
heir in trust for that excluded owner, and not in the concept of owner. Nasa kanya yung titulo but
only he holds it in trust. However, implied trust is not imprescriptible; imprescriptible only if the
heir is in possession of the share. But if not in possession, it will prescribe in 10 years.
In another case, ang nangyari, merong co-owners, say apat. Yung tatlo, inexclude yung pangapat kasi pangit sya, mukhang ampon. So they never give notice to the fourth co-owner, and they
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did not include the fourth co-owner in the extrajudicial settlement, pero hindi pa nila pinartition.
Cancelled na ang title form the parents to the name of tatlong co-owners. After the partition,
binenta pa nila to a third person. The third person cancelled the title in the name of the co-owners,
and transferred in the name of the buyer. Then, the fourth co-owner discovered.
Question:
1. Suppose the buyer is a buyer in good faith, does that mean that wala na habol si fourth coowner?
- No. Since the deed of extrajudicial settlement is not valid and in the concept of coownership, the full ownership is not the whole property, and only insofar as their share. In
other words, itong tatlong co-owners, hindi nila naalienate yung buong property, only ¾
because that corresponds to their only share. Yung ¼, hindi naalienate, kasi hindi sila ang
may-ari ng ¼ share. Hence, ang nalipat lang sa buyer is ¾, ang ¼ hindi natransfer.
2. Paano na yan, the title is now issued to the new owner?
- Even if the title is in the name of new buyer, the ¼ share belongs to the excluded coowner. The ¼ share is held by the buyer in trust for the excluded heir. This is what you
call implied trust.
3. Porket ba hawak na ni buyer yung excluded share, does that mean that the co-heir is already
safe?
- No. If co-heir is no longer in the possession of the property, basis of recovery is implied
trust. The prescription is 10 years. Walang problema if the co-owner who is the heir is in
possession of the property, it is imprescriptible. However, if the co-owner or heir is not in
possession of the property, then hindi na niya marerecover after the lapse of 10 years.
Probate – act of proving before a competent court the due execution of the will, i.e., due execution
of the will by a person having testamentary capacity.
AKA allowance of will. It is a proceeding in rem; act of proving before a probate court the due
execution of a will
Since it is a proceeding in rem, how does the court acquire jurisdiction? Thru publication as
provided by the Rule. There has to be notice by publication as a prerequisite to the allowance of
the will.
A probate proceeding is a proceeding in rem. When you say it is proceeding in rem, the publication
is not the act that vest the court jurisdiction over the subject matter, because jurisdiction over the
subject matter is vested by law (see BP 129).
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What is the publication for? Rather, publication, as a prerequisite for the allowance of the will, it
is constructive notice to the whole world, even as against the State. By reason of notice by
publication, it is binding on the whole world, even as against the State. The judgment rendered is
binding in the whole world because of publication.
In probate, the court is vested only with limited jurisdiction, only limited to extrinsic validity of the
will, i.e., testamentary capacity, compliance with the formal requisites prescribed by law. Any
inquiry on the intrinsic validity or the efficacy of the provisions of the will is premature. Only looked
during probate is the due execution or the authenticity of the will
In probate, it settles with the finality the capacity of the testator, and the proper execution, and the
witnesses of the wills, irrespective of the provision, whether valid and/or enforceable.
Probate proceeding is mandatory.
See Art. 838, Civil Code is the same as R75, S1 and that provides that no will shall pass personal
or real properties unless it is proved and allowed as provided in the Rules of Court. If the will is
allowed, it is conclusive as to its due execution, but it is still appealable. Conclusive as to its due
execution, meaning, hindi niyo na paguusapan yung conclusive, settled na yung issue ng due
execution, but it is without prejudice to the right of appeal.
There are some instances that even without admitting the will in probate, we still sustain the will.
See Art. 1080, Civil Code – Partition of the estate may be made by inter vivos, insofar as it does
not prejudice the legitime of the compulsory heirs. Susundin niyo nalang yung will, kayu-kayo
nalang ang magpapartition. There is a will, you do not have to go probate, you will just follow the
provisions of the will and have partition of the estate. But, it shall be respected insofar as it does
not prejudice the legitim of the heirs. If it prejudice the legitime, must go to probate.
The right to bring an action for probate proceeding is imprescriptible.
Reason: The right to bring probate proceeding is imprescriptible because of the public policy to
respect the wishes of the testator. The rules on statute on limitations do not apply in probate
proceedings. It is not established for the interest of the heirs; it is for the protection of the will of
the testator, to respect the express wishes of the testator. Since that it is the public policy, the
State could not have been intended to defeat the policy by applying the statute of limitations.
Estoppel and laches cannot be invoke either.
GR: Probate court has limited jurisdiction. Anything that has nothing to do with proving the will,
hindi sya dapat for determination. A question of ownership cannot, and will not be resolved in
probate proceeding
Despite the rule, whether the court acts in general or limited jurisdiction, is an issue of procedural
question, and not jurisdictional question. It means that even if the court is a court of limited
jurisdiction, may determine other question not related to the probate of will, e.g., ownership in
probate proceedings:
1. Incidental matter on ownership - Probate may court may pass upon questions of
ownership if the purpose is to determine whether the property should be included in the
inventory. That determination is only incidental, i.e., not conclusive. So, if later on, you
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want to say that the property should not have be included in the inventory because hindi
yung testator ang may-ari nyan. Even if included in the inventory, the inclusion is without
prejudice to the claiming by claimant of accion reivindicatoria;
2. Consent of all parties - If all the heirs or interested parties are parties to the case, it is
optional to the court to submit questions of title, and all consents, the court may pass
upon questions of ownership;
What if a third person claims the title? The probate court may still rule the question
on title, even if a third person is a party to the case, and they all consent.
Since all of them are already parties to the case, they consented, none of their
rights may be impaired by the facts of what may be excluded from the proceedings.
3. Status of the heir – Whether the property subject of part of the estate is conjugal or
separate property of the spouse.
Probate is conclusive as to its execution. The probate decree will definitively settle the questions
on the capacity of the testator and the proper execution and witnessing of the last will and
testament, irrespective of whether the provision are valid or not
Rule 109, Sec. 1(a)
Any interested person may appeal in a special proceeding from an order or judgment where the
ruling allows or disallows a will. If no timely appeal is filed, the decree allowing or disallowing the
will becomes final and conclusive; the appellate court cannot revoke the decree or review the
evidence. But, though the finality is conclusive, limited to due execution.
The claim of title to the property, e.g., whether it forms part of the estate, hindi yan pasok sa
conclusiveness.
The Rules provide that the person who has the custody of the will shall deliver to the court having
jurisdiction or executor named in the will 20 days from knowledge of the deceased. Then, the
executor shall present the will to the court within 20 days after knowing named as executor or
knowledge of death of the testator.
Within the foregoing period, the executor should signify in writing whether he accepts or refuse
the trust. If there is refusal to deliver will, can you bring an action for mandamus? No, not a proper
remedy. You can only avail mandamus when there is no more plain, speedy, adequate remedy.
A person who neglects the duty to deliver the will, twin remedy under Rules: the court may order
the custodian to deliver the will. If refuses, be committed to prison and kept there until he complies.
However, this presupposes that the will is in possession, pero kung wala sa possession, e.g., lost
or destroyed, apply provisions of Rule 76.
Who may file a petition for probate?
- Executor, pwede.
- Legatee or devisee.
- Pwede ba testator himself? Yes, during his lifetime.
- Any person interested in the estate
Who are person interested in the estate?
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- Creditor, because a creditor is interested dahil doon nya kukunin ang pambayad sa
kanya.
- Heirs
Right of the testator to submit his will during his lifetime
Ratio: It would be easier the court to prove the mental condition or to determine fraud, intimidation
(i.e. testamentary capacity). Easier to prove compliance with formal requirements under the Civil
Code. So, if there are still error, you will have an opportunity to correct it at once. Once the will is
submitted during the lifetime of the testator to probate and is allowed by the court, the only thing
that will be left after the death of the testator is with respect to intrinsic validity.
Even if the will has been admitted to probate, the testator may still alter or revoke the same before
his death. He can make another will and submit to probate again before he dies. When he seeks
to replace a new will, but before submitting to probate he died, it will be the heirs who will be
initiating the probate proceeding. Tapos icocontest nalang and now it will be subject to proof on
which one is intended will of the testator.
What should be contained in the petition?
1. Jurisdictional facts
a. Death of the decedent (unless petition was made by the testator during his lifetime)
b. Residence of the testator at the time of death (determines venue in R73)
Pwede ba i-probate ang will ng inhabitant of a foreign country? Yes. You can submit to probate
the will of an inhabitant of a foreign country. That is why the Rules provide that the decedent is
not inhabitant of the Philippines, you must file it in the province where the estate is found.
When the decedent is inhabitant of foreign county, need to be proved that the will must be
previously probated in the foreign country? No. It is not required that the will have been allowed
or proved in the foreign country.
2. Residences, names, ages of the heirs, legatees, and devises
- Devisee –
- Legatee 3. Probable value and character of the property of the estate
To determine the jurisdiction
4. Name of the person for whom the letters are prayed
Letters Administration – if no will;
Letters Administration with Will Annexed – there is a will but no executor named in the will
5. If the will has not been delivered to the court, name of the person having custody of the will
(see S1 R75)
Any defect in the petition will not render void the allowance of the issuance of letters testamentary
or administration?
Do we need to attach an original copy of the will and testament? see R76 S2.
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- No, not required. The original copy of the will is not jurisdictional in the petition. But,
during trial, since the issue is due execution and authenticity of the will, there is need to
present the original. Only when not needed when the will is lost or destroyed
Why in petition not required original of the will?
- It is the practice and recognized by the court not to attach the original. To avoid it from
getting lost, a duplicate of the original is allowed. Present it only during trial later on.
After filing petition and alleging those required, the court will issue order stating that:
1) time and date of the hearing for proving the allowance of the will;
2) there should be notice of the time and date of the hearing
a) publication of newspaper of general circulation once a week for 3 consecutive
weeks (Rule 76, Sec. 3)
b) notice to the known heirs (personal or mail) (Rule 76, Sec. 4)
Is it possible that the will only is the only one filed, without the petition? Can the court take
cognizance and jurisdiction in that case?
- Even if there is no petition for allowance of the will, and only the will is filed and the
petition is filed later on, the court may already, motu proprio, fix the time and place of the
hearing for proving the will. The court may issue notice under Rule 76.
Example:
Mr X, testator died. A, heir 1, delivered the will to the clerk of court of Bulacan. Bakit dinala yung
will lang, nataranta kasi namatay yung testator. Thereafter, B, another heir, filed a petition for
leave the court to examine the will. Then withdrawn because B instituted in Rizal settlement of
estate of X, intestate. A knew the filing of intestate settlement, then in 3 hours, A filed a petition
for the probate of will in Bulacan. B filed a motion to dismiss, because the petition on intestate
settlement preceded the probate proceeding, and the filing of the petition in Rizal vest jurisdiction
in Rizal court to the exclusion of other courts, including that of Bulacan. Judicial notice – born and
buried in Rizal, but lived in Bulacan for 33 years until died.
1) Which court should exercise jurisdiction?
Bulacan court. It was Bulacan court who acquired jurisdiction because the will was
filed first in Bulacan court.
See S2 R76, S3 R76, “when the will is delivered to, OR, a petition for allowance
of a will. By disjunctive word “or”, whether you file a petition OR deliver a will. When
the will is filed, the court shall fix the time and place for hearing. Where the petition
was filed after the will is filed, the filing of petition is deemed to date back to the
filing of the will.
2) Which court has jurisdiction (venue)?
Bulacan properly has jurisdiction because he resides in Bulacan despite his
domicile in Rizal. In probate proceedings, we only need residence at the time of
death, and not domicile. Venue is also procedural and not jurisdictional. Even
assuming Bulacan court is improper venue, it may be waived.
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There is also bad faith when he filed in the Rizal court to divest jurisdiction on
Bulacan court. As between testate (probate) and intestate proceeding, probate
proceedings prevails over intestate proceeding.
If there are two or more courts that are asked to take cognizance to settle the estate, one of them
has the proper venue. Jurisdiction is to the court who first takes cognizance, to the exclusion of
others. It is regardless the venue.
Article 960, Civil Code – Only the instances when we will have intestate succession
Only after a final decision as to the nullity of testate succession can there be intestate succession,
when a will exist.
Section 3, Rule 76
Publication Requirement
Once a week for 3 consecutive weeks publication. Is it absolutely required?
- No. Publication is not required when probate filed by the testator himself.
Note: The purpose of publication is not to vest the court jurisdiction over the subject matter. The
purpose of publication is notice to the whole world that the proceeding has for its object so that
you will bar others who choose not to participate or make an objection. They will be bound by the
judgment later on. Publication brings in the whole world as a party to the case. It vests jurisdiction
to everyone.
Section 4, Rule 75
Notice to devisees, legatees – “AND”; if the devisees and legatees are residence of the
Philippines, first personal at the place of residence AND deposited in the post office with postage
pre-paid at least 20 days before the hearing and to executor or co-executor if the petitioner is not
the executor. Both mailing and personal not required if there is personal service at least 10 days
before the hearing because it shall be equivalent to mailing.
If the testator is the petitioner, publication not required and the notice will be only to compulsory
heirs.
Hypo: Decedent has two marriage. Child (heir) in second marriage filed petition for allowance of
the will because he was named executor in the will. Court set it for hearing. Court ordered
publication and notice to parties. There was publication and notice. However, before the date of
the hearing, the petitioner died. But before petitioner died, the children from first marriage filed
opposition. Another child from the second marriage filed leave of court for amendment of petition
to substitute the petitioner, and prayed for petition for issuance of letter administratix. Instead of
admitting the amending the petition, court dismissed the petition because the death of the
petitioner deprived the court of jurisdiction. Was the court deprived of jurisdiction?
- No, the court is not deprived of jurisdiction. Jurisdiction is conferred by law. Once
acquired, it continues and remains unaffected by subsequent events. It is erroneous for
the court to say that it was divested of jurisdiction just because the original petitioner died.
It is because a petition for probate is proceeding in rem. The publication is supposed to
bring the action binding upon the whole world.
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Is republication needed?
- Since the proceeding in rem, publication makes the case binding against the whole world
even they are not included or named parties to the case. Publication makes all parties to
the case. In other words, no need to republish
Will the fact of change of names in the parties in the petition require new notice in relation to Sec.
4?
-S4 on giving notice is not jurisdictional; it is only a matter of convenience. Even if S4 is
not complied, it is not jurisdictional as long as publication is complied. Non-compliance
with S4 is mere procedural error that does not warrant reversal. Jurisdictional is
publication.
Case
There is petition for settlement of intestate succession – there is a prayer for issuance of Letters
of administration After filing petition, petitioner was ordered to cause publication of the court order
and notice of the date and time of hearing. At the same time, was asked to coordinate with DFA
to cause notice to other heirs because other heirs residents of foreign country. Dinala yung order
of the court, received by the DFA. They also ,ailed by registered mail to the last known residence
of the respondents. During the process, they correspond with each other on the proceedings. The
other respondents said they were deprived of due process because walang sinubmit na return ng
mail. Further, it was not shown that the DFA delivered/served it to the respondent. No return
receipt was made. Is it fatal?
- No. Personal service in S4 is not jurisdictional. Any infirmity in S4 can be cured by
publication of the notice. As long as S3 is complied, ok lang na hindi macomply ang S4
because it is only a matter of convenience. Since the action is an action in rem, publication
vests the court jurisdiction over all the parties interested even if not named in the petition.
So apart from publication binding it against the whole world, it also vested jurisdiction over
all persons interested even if they are not named in petition.
Original of the will is not required to be attached because you only need to present it during trial.
Does that mean that if no will, cannot admit it to probate? No If you do not have a will, lost or
destroyed, can still be allowed or admit it to probate. See S6 R76
Will lost or destroyed can still be admitted to probated provided requirements are met:
1. Prove execution and validity of the will;
2. Prove that the will is in existence at the time of the death of the testator, or if it is not in
existence at the time of death, show that it is fraudulently or accidentally destroyed in the
lifetime of the testator without the knowledge of the testator, because if it is with knowledge
of the testator, it may be shown that there is an intention by the testator to destroy the
same.
3. Prove provisions and distinctly stated
Once proved, and the prove the provisions and distinctly state the provisions in writing, the court
will certify. And it will be under the seal of court and filed with the Register of Deed. Bakit
kailangang ispecify yung laman? Because that would take place of the will.
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Need to put it in writing, when the court allows it, he certifies it. Kailangan may icertify ang court.
Then it will be under the seal of the court and it will be registered in the Register of Deeds where
the property is located.
CASE
All that they can remember, 2/3 of the estate in the witness. Is it enough for the lost or destroyed
will to be allowed by the court?
-No. Because the provisions must be clearly and distinctly proven.
Is it enough for one person only to prove the provision of the will?
- No, the rules require that there must be at least 2 credible witnesses who must prove the
provisions.
So, it is not enough for you to say that there was a will; you need to say everything.
CASE
Sabi nya may will syang Nakita, but he was not able to read the provisions. Later on, it was
destroyed by one heir. Can it be admitted to probate?
- No. Because none of the read the will. You need to prove the provisions of the will.
Notice of the court -> set for hearing.
At the time hearing, the jurisdictional requirements must be proved or compliance with Sec. 4 or
3, Rule 76 (e.g., publication or affidavit of publisher, proof of notice, registry receipt and return,
and acknowledgement of receipt)
Opposition
Any contestant of the will may file the opposition, and the allegations in support of the opposition
must be in writing, and must invoke the grounds. Is it enough to file it to court? Due process
requires notice to be made petitioners, all interested parties, and all heirs.
After, presentation of evidence and testimony.
Procedure different when there is contest, or there is no contest.
Section 5 no contest; Section 11 provides when someone contest a will
Section 6-10, included in Sec 5 and 11
Section 5, Rule 76
If there is nobody who will contest the will, should still present testimony. It is still needed to
present evidence for the allowance of the will. Evidence different when notarial will or holographic
will.
1. If notarial will – only need at least 1 of the subscribing witnesses. However, the lone
witness must state that it was duly executed as required by law i.e., due execution,
testamentary capacity. If the one witness cannot testify, or walang maalala, then can
present other. Pero kung isa lang yung napresent mo but nakapagtestify naman, then it is
enough.
2. If holographic will – only 1 witness who knows the handwriting and signature of the
testator; dapat familiar sya. He explicitly declare that it is the handwriting and signature is
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that of the testator. Pano if wala na ang witnesses? In the absence of a competent witness
and the court deems it necessary, expert testimony only on the handwriting.
If expert witness, he can only testify as to handwriting. You will still need another witness
to prove testamentary capacity.
Is it mandatory for the court to accept expert witness?
- No. Expert witness is the exception of the opinion rule. Because of the permissive nature
of the expert witness (the court MAY), the court can dispense with the presentation of
expert witness. Because the opinion of the expert witness are not binding in the court,
especially when it involves mere handwriting, with respect to similarity or dissimilarity.
Why? Because the similarity or dissimilarity may be determined by visual comparison of
the specimen and those currently existing ones. See R132, S22: the Rules authorize the
court to compare handwriting with writings that are admitted and treated as genuine by
the party against whom it is offered.
So dapat, admitted ang specimen signature. Then based on the admitted signature, the
court can make a visual comparison between the will and the specimen signature admitted
as genuine.
You can also have opinion of ordinary witness; he can also testify insofar as his opinion on the
handwriting. As between of the ordinary witness that has personal knowledge, but is not a
subscribing witness and expert witness, the court may disregard expert witness and base decision
on ordinary witness, who has knowledge of the signature of the deceased.
Section 7, Rule 76
In the case of absence of witness because he or she does not reside in the same province, but
reside within the Philippines, motion for taking of deposition may be allowed. Since it will be
deposition, the court may allow na hindi yung original yung ippresent sa deposition. The court
may allow photocopy of the will to be presented. If it is the taking of the deposition, pwede ang
copy, and when the witness is asked questions on the copy, it is as if the questions are being
asked on the original; it is as if the original is presented. Only for the purpose of presenting to the
witness; the original must be presented in evidence, formally offered in court.
If the witness is resident of the province, must be presented and appear before the court.
CASE: Singson v. Florentino
The witness is resident of the province, but he was suffering from ailment. It was argued that
suffering an ailment is not mentioned in Rule 76, as it only include living in other province. Sabi
ng Court, pwede. We can apply rules on deposition. If witness is unable to testify due to sickness,
pwedeng magdeposition. Even if an instrumental witness is within the seat of the court but cannot
appear due to sickness, his deposition may still be taken. Otherwise, a different interpretation is
senseless and impractical. It would defeat the purpose of the rule.
Example: May sakit si witness, but residing in the same province. Sabi ng court, ako nalang
pupunta sa may sakit. Doon nalang maghhearing sa lugar kung saan ang witness. Before they
could proceed with that, the opposing party conform with the taking of deposition, and even
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participated in the deposition. In that case, even in the same province, and there is no objection
and in fact gave his consent, then pwede din deposition, even residing within the same province.
What if the will is contested?
Who may contest?
- Those who have interest in the estate can contest. No interest, cannot contest.
If notarial will – all subscribing witnesses (3), the notary public. If any is outside the province,
deposition. If witness is dead, insane, or absent, must be satisfactorily shown to the court by
evidence. Alive, not dead, not insane but not resident of the Philippines, it must be satisfactorily
proved.
In such case, it may admit the testimony of other witnesses so long as the due execution of the
will be satisfactorily proved. Pwede rin ipresent yung handwriting ng testator ng subscribing
witnesses. Those presented may be handwriting of the witnesses. The court may make
comparison of the handwriting.
If holographic – at least 3 witnesses; all must know the handwriting of the testator and must
expressly declare that it is the handwriting witness If no competent witnesses, expert evidence
may be resorted to. Hindi mandatory. Pwede nalang rin ipakita sa court (for comparison).
CASE: Ajero v. CA, G.R. No. 106720
4 issues to be resolved in the probate of a holographic will:
1. WN the instrument is the last will or testament of the deceased;
2. WN the will was executed in compliance with the formalities prescribed by law;
3. WN the testator had the testamentary capacity at the time of the execution of the will;
and
4. WN the execution and the will and its signing were voluntary acts of the decedent.
What if one or some or all the witnesses testify against the due execution of will, or do not
remember having attested to it, or their credibility is doubtful?
- Will is not automatically disallowed. See S11 R76, the court may still allow the will if the
court is satisfied from the testimony of other witness and for evidence presented that it is
duly executed and attested that is in the manner prescribed by law. The validity of the will,
in no wise, depend on the united support of the witnesses. It is also notwithstanding that
one of the witness is not united with the others. It will be dependent on the court whether
it is satisfied that the will is duly executed and authentic.
In probate of a notarial will, is it mandatory that all subscribing witness and notary public should
be presented in court? No. When died, insane or not in the Philippines.
What if hindi insane, hindi dead, hindi outside of the country?
CASE: Baltazar v. Lacsa
One had brain surgery and he cannot remember. Another had cardiac attack, after that he cannot
remember. All proven by testimony. Court: they have satisfactory reason that the subscribing
witness cannot anymore testify. Testimony of other witnesses may be allowed, as long as proof
of handwriting, as long as it is competent.
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What if the testator is the one who will submit holographic will for probate
If it is the testator who will submit the will to probate and it is a holographic will, we will distinguish
whether vontest is filed or no contest
1. No contest - The fact that he affirms the signature and handwriting is his own, enough
evidence of the due execution and genuineness of the that the will.
2. There is contest - When contested, burden of the contestant to disprove the
genuineness or due execution. If the oppositor discharges such burden to prove that it is
not genuine or not duly executed, the testator is given opportunity to present additional
evidence to rebut the evidence.
Section 9, Rule 76
Grounds for disallowance of will
See Art. 839, CC
1. Not executed and attested as required by law;
2. Testator was insane or otherwise mentally incapable to make a will
NB: what is required to be proven in testamentary capacity is determined at the time of
the execution. In probate cases, there is presumption of sanity of the testator. It is the
obligation (burden) of the other party to prove the incapacity.
- See Art. 798, CC – In order to make a will, essential that the testator must be of sound
mind at the time of the execution.
3. Executed under duress of influence of fear or threat;
4. Undue and improper pressure and influence
- Undue influence – that which compels the testator to do that which is against the will
from fear, the desire of peace, or from other feeling which he is unable to resist.
5. Signature of the testator procured by fraud or trick.
E.g., papipirmahin ng blanking papel tapos lalagyan ng last will and testament.
Grounds in Sec. 9, Rule 76 is exclusive. The list is exclusive; no other ground other than that
provide shall serve to disallow the will (Sps. Ajero v. CA).
Once the will is allowed; the court is satisfied that the will should be admitted. If the court is
satisfied that it shall be admitted to will, it shall issue certificate of allowance of the will, attested
by the seal of the court and filed with the Register of Deeds (insofar as the real estate is
concerned).
Will executed by foreigner may be probated here in the Philippines, so long there is a property
here in the Philippines. The will may be probated here (first instance) even if not probated in the
foreign country if he has properties here in the Philippines.
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So, if foreigner ka, you have two options:
1. Pwedeng isubmit to probate the will here in the Philippines without the need of probating
it first abroad. Not prerequisite that it is previously probated abroad.
2. If probated in other country, Rule 77 on re-probate because there is no judicial notice
of foreign judgment.
Reprobate – reauthentication of the will
Bakit reauthentication? Na-authenticate na abroad, then you submit it again to probate here in
the Philippines. Reprobate hence is governed by Rule 77. If probated in first instance here, Rule
76 75 applies.
In re-probate, the local court is going to acknowledge as binding the finding of the foreign probate
court provided its jurisdiction over the subject matter is established.
Is it required that the will executed by a foreigner abroad must be first probated in the country of
execution?
- No.
Will your answer be the same if it is argued that you need to prove it first in the foreign country so
you can ensure compliance with the legal formalities of the country of execution?
- Yes. Our laws do not prohibit probate of wills of foreigners executed abroad although
they have not been proven yet in the country of execution. A foreign will may be given
legal effect in our jurisdiction.
It is impractical to require that the will executed by the foreigner abroad should first be probated
abroad. When it is required, it is as good as depriving outright the inheritance of the heirs.
See Art 816, CC
- Will of an alien produces effect in the Philippines provided it is executed in the formalities
prescribed in the law of his country where he resides or observed in his foreign country.
However, it is not automatic that the court will re-probate it. For the reprobate, there should be
proven. It may be filed, recorded, allowed by the proper CFI.
Requirements for reprobate:
1. Petition for allowance in the Philippines
2. Copy of the will. Need to attach, and have the copy of the decree of allowance by the
foreign court allowing the will
3. Prove that the court that the court rendered the decree is a probate court;
4. Prove the law on procedure in probate in allowance of the will
5. Prove that the legal requirements for the execution of the valid will have been complied,
established by competent evidence.
It can be filed by the executor, or any person interested in the estate.
How to authenticate the document/decree?
R132 S19
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- Public documents – written official acts, records, of the sovereign, whether of the
Philippines or foreign country
R132 S24 – Proof of official record
Attested to by the official having custody, or deputy. If not found in the Philippines, in the
addition to the attestation, the certificate is made by officer, secretary of the embassy,
consul, secretary of legation of the country where the record is kept. Authenticated by the
seal of office (iba na sa Revised Rules)
R132 S25 The attestation must provide that it is the copy is the correct copy of the original. It must
be under official seal, or under official seal of the court
Summary of requirements; evidence that must be presented:
1. Due execution in accordance with the foreign laws;
- why the decree needs to be presented
2. That the testator is domiciled in the foreign country and not in the Philippines;
3. That the will is admitted to probate in foreign country;
4. The fact that the foreign tribunal is the probate court;
4. The fact that the law on procedure and allowance of wills in that foreign country
Required because our court cannot take judicial notice of foreign law/rulings. After filing, the court
shall issue order to comply with publication and notice, then publication and notice requirements.
As if it is an original probate proceeding. Then, hearing. Upon hearing, the court finds that the will
shall be allowed. Certificate of allowance signed by the judged, attested by the seal of judge, filed
and recoded by the clerk of court, registered with Registry of Deed
Letters testamentary shall then be issued. The letters shall only extend to the estate of the
deceased within the Philippines. Administration extends only to the assets of the deceased in the
state where the letters are granted. An administrator in US does not have power over properties
in the Philippines. In the same way, the administrator in the Philippines has no power over
property in foreign country. Then payment of debts and assets, and the remainder shall be
disposed of as provided with the will, as far as the will may operate upon it, and as provided by
law.
Mr. X was American citizen, domiciled in Maryland, USA. At the time of death, decedent in
Philippines. After the death, the will was probated in Baltimore, Maryland then admitted to probate
in that foreign court. Then a petition for probate was filed in Philippines. Which law shall apply
regarding intrinsic validity?
- Intrinsic validity (validity of provisions) is governed by lex nationalii (See Art 16, CC).
Shall be regulated by the national law of the person whose succession is under
consideration, regardless of where the property may be found.
Art. 1039, CC
Capacity to succeed is governed by the law of the nationality of the decedent.
Section 4
“ x x x such debts, after payment of just debts and expenses of administration, shall be disposed
of according to such will, so far as such may operate upon it.”
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The foreign law will not prove itself in our jurisdiction; we will not take judicial notice. So, the
petitioner is duty-bound to introduce evidence on the pertinent law of the state of decedent.
A petition for issuance of letters testamentary or administration is not an initiatory pleading. So
since it is not an initiatory pleading, there is no need to attach a certification against non-forum
shopping. If you failed to attach a certification against forum shopping in you petition for issuance
of letters administration or testamentary, it is not a ground for dismissal of the petition precisely
because it is not an initiatory pleading.
It is actually a continuation of the original action for probate of a will, if it starts with probate.
Section 1
Who are incompetent to serve as EXECAD?
1. Minor – Minors cannot perform functions as EXECAD
2. Not resident of PH
3. One who, in the opinion of the court, unfit to execute the duties of the trust and the
circumstances for unfitness such as: drunkenness, improvidence or lack of understanding or
integrity or conviction of an offense involving moral turpitude.
No rule on who are automatically appointed as EXECAD. There are guidelines for the
appointment but ultimately, the appointment is discretionary upon the court. Appointment is
discretionary upon the probate court, generally not subject of review except showing of grave and
clear error. Removal also is within the jurisdiction of the probate court; not also subject of review
except showing of grave abuse of discretion.
Guidelines in appointment of EXECAD (Sec. 6)
1. Executor named in the will
2. If executor named in the will is incompetent, did not accept the trust, or fails to make bond, the
administration shall be granted to the following mentioned in Sec. 6:
a) Surviving husband or wife, as the case may be, or next of kin, or both; or such person
as such surviving husband or wife, or next of kin, requests to have appointed;
b) If such persons in surviving husband or wife, next of kin, or persons selected by them
be incompetent or unwilling, neglects for thirty days after the death of the person to apply
for administration, may be granted one or more of the principal creditors; or
c) If no such creditor incompetent and willing to serve, may be granted to such other
person as the court may select.
Note: Even creditor may be appointed as an administrator.
Is order of preference absolute?
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- No. S6 is just a guideline; the appointment is subject to discretion of the court
Can the court appoint co-executors?
- Yes. Guideline in S6 does not disclose the appointment of co-executors. This is
especially true when justice and equity demand that you would want to have an opposing
parties or factions to be represented in the management of the estate. So you want a
representation, example, you have a compulsory heir and you have a creditor.
Can the surviving spouse bring an action for mandamus to compel the court to appoint her as an
administrator?
- While the surviving spouse is entitled to the preference of appointment, there are also
circumstances that would warrant the rejection of the appointment of the surviving spouse.
The court cannot be compelled by mandamus to appoint spouse as executor. Mandamus
can only lie to compel appointment, but not who appoint.
Is it automatic that the nearest of kin will be appointed as an administrator?
- No, well, sabi ng Supreme Court there is preference but again it is not absolute and at
the end of the day, it depends on the attendant facts and circumstances and base on the
discretion of the court. It’s not automatic just because you are the nearest of kin. Why?
because you might not be qualified, you might be unfit.
But even if the probate court is granted discretion in the appointment, the probate court
cannot arbitrarily make a decision. There has to be sufficient reason to disregard the
preferential right of the surviving spouse or the nearest of kin. If the person exercising or
having preferential right is unsuitable, then that is a justifiable reason. The probate court
cannot arbitrarily disregard preferential rights. There must be sufficient basis
Principal consideration of appointment – interest in the estate. There has to be interest in the
estate.
What do you mean by interest?
- It is one who will be benefitted by the estate. Because they will be interested in the
preservation of the estate. They have an interest in speedy and economical settlement of
estate.
Kasi kunwari heir ka, mas gugustuhin mong hindi ma-waste yung estate para may makuha ka.
Kasi the heir can only get distribution after all the debts have been paid. So obviously, the heir
will try to ensure that the estate will not be wasted. The interest must be material and direct;
cannot be contingent and indirect. How proven? Prove competent evidence of filiation. So you
need to prove it by competent evidence such as a birth certificate or an acknowledgment of the
father in writing whether in a public or private instrument.
Who are considered next of kin?
Refers to those whose relationship that they will receive as distributees. So, a compulsory heir is
one who has an interest. So one who is entitled to legitime is a person, based on jurisprudence,
who has an interest in the estate.
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Illegitimate grandchild, decedent is grandparents
CASE: Suntay v. Cojuangco-Suntay
The grandchild who was an illegitimate child was also legally adopted by the grandparents so in
that instance, the bar between legitimate and illegitimate will not apply precisely because the
illegitimate grandchild by the grandparents and now is, in effect, the child that is legitimate of the
grandparents pursuant to legal adoption.
So meron silang nirecommend na ibang administrator. But they did not give any reason why that
administrator should be recommended. Sabi ng Supreme Court, it’s not enough na walang
creditor and wala nang competent heirs or next of kin. When you nominate an administrator, you
need to show clearly the interest, the interest of the administrator must be shown. When you
nominate an administrator, the interest over the estate must be proven.
If the mother is appointed as the administratrix, and the heirs are all minor children. Is the
administratrix mother who also serves as a guardian of the children who are the heirs, required
to also post a bond for guardianship of minors before she can commence the discharge of
functions as an administratrix?
- No, sabi ng Supreme Court she is not required to pay a guardianship under Sec. 16 on
the rule on guardianship of minors before she can discharge her functions.
Preference – they are of the same level. Let’s say A and B are both compulsory heirs, is the court
authorized to choose from one of them?
- Yes. The court may consider suitability and fitness to serve the administration. Then, the
court can also consider the affidavits of the other heirs
Section 2. The executor of an executor shall not administer the estate of the first testator.
Executor of the executor shall not administer the estate of first testator. So hindi lang siya executor
of and executor, pwede rin administrator of an executor. Why? Kasi the first executor is the one
who is bound with duties of the testator not the executor of the executor.
Section 3
If the single woman becomes married, magiging problema ba yon? Obviously not because she is
only an administrator. She does not own the property, so it will not be brought into the marriage.
You know that under ACP/CPG, it must form part of the property of the spouse. Obviously, the
property subject of administration is not the property of the spouse, it is merely a trust.
Section 4
When the will is allowed and proved and there is an executor named in you will, then the court
will issue letters testamentary to the person named as executor. Provided that the person named
as executor is competent, he has no disqualifications, he accepts the trust and gave the bond as
required. However, the letters testamentary cannot be enforced until the will has been allowed
and proved.
Issuance of letters testamentary will only proceed after the will has been allowed and proved.
Section 5
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Vis-à-vis Sec. 6, Sec. 5 presupposes several executors but not all of them competent or accepted
the trust; or filed bond but others did. Yung mga natira will discharge the trust.
Section 6
If all of them disqualified, failed to file bond or did not accept trust, or there is a will but there is no
executor – letters of administration.
Last situation: if there no executor named in a will, it means there is a will but there is not executor
so we will proceed with letter of administration. Ito yung tinatawag na “Administrator with a Will
Annexed”. There is a will pero walang executor kaya magiging administrator with a will annexed.
Under Sec. 1, who may oppose the issuance of letters testamentary or administration?
- Any person interested in a will may state in writing the grounds why letters testamentary
should not issued to persons named in the will.
Again, we follow the same definition of a person having interest in a will, you should be an heir or
a creditor having claims. Interested person, again, is one who will be benefited by the estate such
as an heir or one who has a claim against the estate and just like the definition kanina, the interest
must be direct, it must be material not merely incidental or contingent.
Art. 824, Civil Code – If decedent has no compulsory heirs, he can dispose the estate in the will.
Precious right of the testator preserved.
If to have a decedent with compulsory heir, it does not follow that the nearest of kin has an interest.
For instance, a person has no compulsory heirs, and a nephew is not a compulsory heir. He (the
nephew) cannot intervene in the appointment of the executor. Why? If the person without
compulsory heirs names an executor, when the nephew claims he is an heir, pero wala namang
compulsory heirs, he cannot anymore intervene especially when there is an executor named in
the will and he has no interest. The choice of executor is a precious prerogative of the testator
and as much as possible, we have to respect the wishes of the testator. Only when the appointed
executor is incompetent can the court intervene (in the appointment).
Bar between adopted child and collateral relatives
Relationship in adoption is only limited between adopted child and adopting parent; the
relationship does not extend to the relative of the adopting parents or the adopted child.
Grandparent not covered. If the mother of the adopter dies, the adopted child is not an interested
party because there is no relationship between the adopted child and the grandparent because
the relationship is only between the adopter and the adopted child.
Opposition
1. In writing
2. State reasons for opposition
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There is hearing and notice. Hearing, then the court shall pass upon the petition.
Procedure of appointment of administrator
File petition in the probate court; not initiatory pleading. The person who must file is an interested
person.
Must allege:
1. Jurisdictional facts
a. Death of testator or the decedent;
b. Residence at the time of death, in the province where the probate court was
located
c. If decedent not resident, must allege fact thereof and left estate, and that estate
is within jurisdiction of the court.
2. Names, age, residence of the heirs
3. Probable value and character of estate
4. Name of person whom letters of administration are prayed.
Just like in petition for probate, no defect in the petition shall render void the issuance of the
letters. If you also look at the last sentence of Rule 79, Sec. 1, it says a petition may at the same
time be filed for letters administration with the will annexed that is why we said that the testator
has died kasi pwedeng mag issue ka ng letters administration even if there is a will but there is
no executor named in the will.
Woman cohabited with man who died w/o benefit of marriage but no legal impediment to marry.
Interested party?
- Yes, as a co-owner See Art. 147, FC
If you all look at Art. 147 of the Family Code, remember, there are two kinds of property
regime when there is no marriage or there is a void marriage, it falls under Art. 147 if there
is no legal impediment and its second paragraph provides that the rules on co-ownership
will apply. So any property acquired during the union without the benefit of marriage
without legal impediment is presumed or prima facie to have been obtained by their joint
efforts, hence, the rules on co-ownership will apply.
X in filing petition for issuance of LOA, but did not allege interest. Should the petition for letters
administration be dismissed for lack of jurisdiction because there is failure to allege interest?
- No. It should not be dismissed for lack of jurisdiction because interest is not among those
required in the jurisdictional facts. The allegation that he is seeking letters of administration
because of his interest is not a jurisdictional fact, however, it is a basis to dismiss the case
not on the ground of lack of jurisdiction but on the ground of legal capacity to institute the
proceedings. There is lack of legal capacity to institute the proceedings because he has
no interest.
Section 3
Court shall fix the time of the hearing. There should be notice to all interested parties.
How notice made?
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- See S3-4, R76. If you will remember, Sec. 3 talks about publication in a newspaper of
general circulation once a week for three consecutive weeks, and Sec. 4 talks about
personal service and registered service. Even if S4 is not complied, S3 must be made to
acquire jurisdiction over the person of all interested parties. Requirements in Section 4 is
not jurisdictional, only a matter of convenience.
. Publication is a means by which all persons of the whole world or the whole world and all
interested parties will be bound. It is a way to acquire jurisdiction over everyone. The requirement
of notice is essential for the validity of the proceedings because they do not want a party to be
deprived of his right to property without due process of law. In case of absence of notice to the
heirs, then the proceedings can be annulled because it is required to have notice.
Purpose: To bring interested persons within the court’s jurisdiction.
Section 4
Opposition to petition – any interested person may oppose. Need to allege the grounds i.e. the
incompetency of the person for whom letters are prayed for or on the ground that the one who is
opposing is actually the one who has the right to administration. Opposition may also include
petition for appointment to the oppositor.
If his ground is that he is the competent one to be issued letters administration, then in addition
to opposing, he may also ask for the issuance of letters administration in his favor.
There must be a hearing. But before hearing is held, there must be showing that the requirement
of notice is complied with. If compliance shown, then the court will try the case.
X did not file for petition for letters administration. Instead, X filed a motion to termination of special
administration and in the same motion prayed for appointment as co-administrator. Court granted
the motion for the appointment of X as regular administrator and termination of special
administration and required X to file a bond, and required X filed the bond. X filed, then court
issued letters of administration. Is it proper?
- No. They did not follow procedure as a requirement for due process. The appointment
was not threshed out by the court. The posting of bond and the filing of the inventory
shows the intention of X to serve as a willing administratrix, however, the appointment can
only be converted as one for special administration but it cannot be for regular
administrator because they did not follow the proper procedure for appointment of regular
administration. Due process requires that we follow the procedure.
Section 6
Letters of administration may be granted to any qualified applicant.
Qualified applicant – Even if you are competent but did not apply, obviously, letters of
administration will not be issued to competent. You must appear when notified.
Oh, asar na asar ka sa kabarkada mo, pinopormahan yung crush mo, nagging sila, feeling mo mas bagay
kayo pero hindi ka nag-apply, magiging kayo ba? hindi, diba? ganyan din po sa letters administration.
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So you and applicant, must be, and in addition to being an applicant, also appear when notified
and claim the issuance. Because even if you apply but you do not appear and you do not make
your claim and you do not present your evidence or proof, walang mangyayari. Sabi ng court,
even if more competent but there was an inaction, it implies indifference.
Kaya kapag crush na crush niyo tapos dedma dedma kayo kasi hiyang hiya kayo, pwede rin ma-construe
yon as indifference, isipin ng crush mo wala kang type sakanya. Pero wag din naman po masyadong
malandi ha, nakakturn-off din naman yung bigay na bigay masyado, sakto lang. Dun tayo a gitna lang ah.
Everything in excess is not good. Unless mapera yan, diba, walang magrereklamo sa sobrang mapera.
Who is Special Administrator? Special Administrator is representative of the decedent, appointed
by the court to care for and preserve the estate until the regular EXECAD is appointed.
Special administrator is not represented by the one who nominated him; he is an officer of the
court. As such officer, subject to supervision of the court. The special administrator would be
expected to work for the best interest of the estate not for the one who suggested their nomination,
ha? hindi ganon.
Principal object is to preserve the estate until it can pass to a fully authorized executor or
administrator.
When is Special Administrator appointed?
- When there is delay in or letters testamentary
“or from any other cause” – implied that there is denial of power to appoint regular
administrator or executor e.g. appeal, or probate proceeding took long, great number of
opposition.
So because of the delay in the proceedings, you wan someone to temporarily preserve the
property until we can finally dispose of that delay and finally appoint a regular administrator or
executor. The special administrator will take full charge of the state of the deceased until the
question causing the delay is finally settled and the executor’s and the administrator’s
appointment.
Duties of Special Administrator
When you appoint a special administrator, you should take into account the duties of a special
administrator in determining the appointment of special administrator. Where do you see the
duties? That is found in Sec. 2, Rule 80.
Note: Sec. 2, Rule 80: “Preserve” yung estate for the executor or administrators afterwards
appointed. Dun sa sale nakalagay “he may sell such perishable and other property as the court
may order sold”.
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GR: Special Administrator is not authorized to sell real estate; “sale” does not contemplate real
estate.
Special Administrators must make sure to prevent losses that will diminish the share.
Can debtor be appointed as SA? No.
What if debtor is common law wife? No also because debtor. You cannot expect the debtor to
preserve and protect the interest.
Take note that the appointment of a special administrator is limited to the grounds specified in the
rules. Only when there is delay in the appointment or in the grant of letters testamentary or
administration.
There is letters administration issued; parties opposed, seeking substitution. During pendency of
the substitution, is Special Administrator need to be appointed?
- No. There is issuance of Letters of Administration in the first place. Grounds for
appointment of special administrator is limited if there is delay in issuance of letters of
administration. Sabi ng Supreme Court, the special administrator will not be appointed as
there is already a regular administrator. Pending substitution, the old administrator still has
the right to continue the performance of functions as such administrator.
Issuance of regular EXECAD is appealable; Issuance of Special EXECAD NOT appealable.
Appointment of EXECAD is only for specified powers (see R80). Yung powers niya, yun lang.
R80 provides no preference; walang qualifications. Appointment lies within the sound discretion
of the court. However, the court is restricted with the qualification that although the court exercises
discretion, it is only limited to when the ground is present that there is delay for the issuance for
letters testamentary or administration. So the basis for the appointment of the special
administrator is broad enough to include any cause or reason for the delay in granting the letters.
When the court appoints a special administrator, the court does not determine the shares of the
estate. If the court merely appoints one who is entitled to administer the estate, the issue of
heirship is one to be determined later on in the decree of distribution.
Sec. 6, Rule 78 on order of preference of appointment of EXECAD; do we apply Sec. 6, Rule 78
to special administrators?
- No. Section 6, Rule 78 on preference for appointment of EXECAD shall not control in
appointment of special administrator. Revocation or removal of regular EXECAD not
governed by removal or revocation of Special Administrator.
The law or the rules does not specifically say who shall be appointed as special administrator and
the qualifications. So the court has the discretion in the selection of the person to be appointed.
Again, the discretion must be sound, it must not be whimsical or contrary to reason. No need pass
upon the issue of fitness or unfitness of the appointed SA
Bond, Duties of administrator (Sec. 4, Rule 81)
In addition to the appointment of a special administrator sa discretion ng court, before the special
administrator can enter upon the performance of his duties, he should file a bond, in such amount
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that the court directs and conditioned on making a return of a true inventory of the goods, chattels,
rights, credits, etc. and he will account for them as those he received when required by the court
and he will deliver it to the person later on appointed as executor or administrator or any person
authorized to receive them.
Now the bond will secure the performance also of the duties and obligations of the administrator.
Ano ba ung duties ng administrators? You look at Sec 1, Rule 81; you can also apply that to a
special administrator.
So when you talk about conditions in Sec. 4 sa special administrator, meaning the bond is
conditioned on the faithful performance of the administration, you relate that Sec. 4 faithful
performance sa Sec. 1, yung conditions. So di nyo lang ililimit sa Sec 4 ung special administrator.
Yung Sec 4 ung topic nya special administrator, correct? Tapos nakalagay din dun kailangan
icomply nya ung duties nya of administrator. Ngayon, ano ba ung duties ng administrator? Ang
duties ng administrator although in special administrator, kasama rin yung conditions under Sec.
1, you apply that also to duties of an administrator. What are those conditions? He has to
administer the estate, make a return of the true inventory, account for such that are received by
him, and deliver the same to the one appointed as executor or administrator.
The administration bond is for the benefit of the creditors and the heirs. You want to have the
bond to compel the administrator, whether regular or special, to perform the trust reposed in him,
and to discharge the obligations incumbent upon him. So the purpose is to safeguard the
properties of the decedent. The bond should not be considered as part of the necessary
expenses. Hindi yun pwede mareimburse. Bond is not chargeable against the estate.
Take note also that whether it is for a special or a regular administrator or executor, the posting
of bond is also in the nature of a qualification for the office of administration, such that if there is
inability, refusal or failure to post the bond, then the appointment may be revoked for failure to
post a bond. It is in the nature of a qualification for the office of administration. Simply said, if
Special Administrator did not post bond, the court can revoke appointment.
While the court may use its discretion, and depart from such reasoning, the reasoning to appoint
someone with interest, there is still logical reason to appoint someone who has interest. But there
is no basis to appoint someone who is a debtor of the estate. So it is recommended that the court
appoint someone with interest but the court may use its discretion and depart from that reasoning.
However, in departing from that reasoning, the court can never be justified in appointing a debtor
as a special administrator or a stranger to the deceased because to do so would be grave abuse
of discretion. So although may discretion siya, it should be exercised properly. General rule
someone with interest, can deviate pero wag debtor or stranger to the decedent.
Section 2
Special Administrator may only sell such perishable property, and other property as the court
orders sold. Special Administrators are not authorized to sell real property.
Can SA withdraw money from bank?
- Yes. The withdrawal of bank deposits may be viewed as taking possession and charge
of the credits of the estate. So that is within the power of the special administrator okay
taking charge and possession of the credits of the estate.
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Can SA waive money claims?
- No. Wala syang Karapatan.
Can SA pay money claims?
- No. Tandaan nyo ung money claims sa Rule 86 pa yan and before ka magbayad ng
money claims diba meron pa tayong statement of claims? So generally, taga-preserve
lang si special administrator, for the preservation until you have a regular administrator or
executor. While he can withdraw or the bank account meaning to take possession of the
credits, it doesn’t mean na gagamitin nya na yun sa pag bayad ng money claims kasi
subject to a separate proceeding yung determination on the part of the money claims. It
is the court that determines. Diba may ganong proseso tayo ung statement of claims.
Section 3
When the letters testamentary or of administration are granted, the powers of the special
administrator will cease. Tapos idedeliver nya na yung goods, chattels in his possession. And
then kung merong mga cases na nasimulan si special administrator, the executor/administrator
will now prosecute the case to final judgment. So with the appointment of a regular
executor/administrator, there is no more reason for the special administrator to continue
performing the functions, remember andyan lang sya when there is delay of appointment, kung
may appointment na, wala na syang silbi.
Why can’t it just be the special administrator forever? Kasi nga po ung special administrator limited
lang yung powers nya unlike an administrator that is regular or an executor. So there are important
duties that an executor or administrator can perform that a special administrator cannot perform.
Since the powers of the special administrator are only limited to the preservation this means that
the administration will be at a standstill if it were only placed in the hands of the special
administrator.
Section 1
Whether it is special or regular administrator or executor, before they can enter into the
performance of their duties or execution of their trust, and before the letters testamentary or
administration can issue, they need to post a bond. So first is appointment, so the process is file
your petition if it’s for administration or with the will annexed or with the will but no qualified, and
then notice, and then opposition and the court will hear it, and then appointment. Then after the
appointment, bond ka muna.
Letters will not be issued without a bond.
Amount – in a reasonable sum as the court directs.
The position of an administrator or executor is one of trust, so for the court to safeguard the estate
of the deceased, they require the posting of a suitable bond; as I said the ability to give a bond is
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in the nature of a qualification of office. It is a condition precedent to the acceptance of the
responsibilities of the trust.
Executor may refuse to enter into duties. If the administrator/executor does not want to enter into
the performance of his functions, ayaw nya maappoint, mapipilit mo ba sya? Hindi mo sya
mapipilit if he refuses kaya nga may ground na refusal.
Section 2
Partial exception to the bond.
If testator directs EXECAD to enter without bond, the executor may be allowed to give a bond in
such sum and with such surety as the court approved. This is conditioned to pay debts.
Is this absolute? No, because the next provision states the court may still require the executor a
further bond in case of a change in circumstances, baka kunwari kasi ung executor wala talagang
pera diba trustworthy siya pero he cannot afford the bond, pero kunwari nanalo sya sa lotto
change in circumstances pwede na sya magbigay ng bond or other sufficient causes. It is very
general so the court is given wide latitude of discretion when the court can require additional bond
in accordance with the conditions mentioned in Sec. 1.
Section 3
Bonds for joint executors
Pwedeng separate bond, pwedeng joint bond
Section 1
If the will is found, will the proceedings intestate converted to testamentary proceedings?
- If this happens, there is no conversion; there must be probate of will first.
So after the probate of the will that is discovered, we then proceed with the proceedings for letter
testamentary or letters of administration. Bakit letters of administration? Because it is possible
that there can be a will without an executor that is appointed therein. That is what we call an
administration with a will annexed.
May an administrator continue to administer the estate after the will has been proved and allowed?
- No. After the will is proved and allowed, the l
letters of administration will be
revoked.
Now, once the will is allowed and proved in court then that is the time that the letters of
administration will be revoked and all power under letters of administration shall cease, then the
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administrator previously appointed should surrender the letters to the court and then render his
account and there will be proceedings for the issuance either for letters testamentary or letters of
administration under the will.
Mere discovery of the will, automatically revoked the letters administration? No.
Section 1 presupposes na merong letters of administration issued already, so this means that the
deceased died intestate, walang will but may nahanap na will later on and it was proved and
allowed by court. So, if there's already letters of administration issued that presupposes that the
deceased was intestate but later on there is a will that is found, it is not automatic that the letters
of administration will be cancelled. (i.e., letters of administration issued pursuant to an intestate
proceeding,
Section 2
Several grounds, 5 grounds for removal or acceptance of resignation:
If the executor or the administrator neglects to render his account or settle the estate according
to law, or perform an order or judgement of the court (because under the rules the court can also
direct in addition to the duties and as an officer of the court the administrator must comply), or a
duty expressly provided by these rules, or absconds or becomes insane, or otherwise incapable
or unsuitable to discharge the trust.
“settle the estate according to law” – encompasses all requirements under Rules of Court
When the executor or administrator resigns or is removed then if there is more than one executor
or administrator, all those remaining will continue to discharge the trust alone.
5 executors, 1 become insane, is the court mandated to appoint another 5th executor? No.
The appointment of administrator, the suitability of the administrator lies with the discretion of the
court. In the same way the removal also lies within the discretion of the court that appointed the
administrator.
So if there is, for example, a removal of an administrator because he failed to pay the estate tax,
failed to render an account of the estate, he failed to settle the estate in accordance with the law,
and he also involved the heirs in a transaction with a pawn shop that caused prejudice to the
heirs, so all of those circumstances were considered by the court in removing the appointed
administrator.
Co-administrator left to US for 3 months because that co-administrator had to accompany her
ailing husband for treatment. While in US, she corresponds with other administrator. That coadministrator was terminated by the court because absconded, is it sufficient ground?
- No. According to the Supreme Court, in that instance, the administrator never abandoned
her role as a co-administrator of the estate she was not remiss; it was only a temporary
absence in the state, it does not disqualify an administrator and she was also
corresponding. So a temporary residence outside of the state maintained for the benefit
of health of the family of the executor or administrator is not a ground that necessitates a
removal. Because in that instance, the temporary absence was in account of health,
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another ground that is possible is an absence on account of business or even an absence
for the purposes of travel or pleasure. It would not necessarily establish the fact that the
executor or administrator has abandoned the performance of duties. In that instance, the
Court ruled that there was no intention to permanently change the abode or the residence,
it contemplates a return, so there is no refusal to perform the duties.
There is an administrator and all the heirs don’t like the administrator. All of them unanimously
asked the court to remove, is that sufficient ground?
- NO. According to the Supreme Court, the removal of the administrator does not depend
on the whims and caprices and dictates of the heirs and beneficiaries, because an
administrator is not a representative of the heirs. An administrator is entitled to protection
from removal without just cause. So if there is no ground for removal, even if it is
discretionary upon the court but there is no sufficient ground for removal then that can be
subject to a review for being grave abuse of discretion.
Section 3
Lawful acts of the EXECAD before revoked or removed are not nullified; they remain to be valid.
Remember just like in the discussion of quo warranto, we said that if na-oust na yung isa it does
not nullify the previous acts of the official ousted prior to the revocation, resignation or removal.
That is the same in case of an administrator or executor.
Section 4
Powers of new executors the same as the previous executor like collect and settle estate, or
prosecute or defend actions by or against the former EXECAD. Also, they can have judgments
executed.
Exception: If the court has granted the former EXECAD the authority to sell or mortgage estate,
the second appointed EXECAD will not have automatic authority. The second EXECAD should
secure authority from the court to sell or mortgage.
In one case, the first executor or administrator was granted authority to sell, tapos na-remove
yung first executor or administrator, a second one was appointed. Upon appointment, binenta na
niya agad, his basis was the first executor or administrator was authorized. The Supreme Court
said that the second executor or administrator never had such authority. So the second one has
the power under the rules, but if it is the power granted BY the court such as authority to sell or
mortgage, kailangan niya ng bagong authorization or approval coming from the court or what they
call renewal of license to sell.
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Within the period of 3 months after the appointment, this one applies equally whether you are an
administrator or an executor, the administrator or executor shall return to the court a true inventory
and appraisal of all the real and personal estate of the deceased which which has come into his
possession or knowledge (kahit wala sa possession nya pero alam nya)
Upon issuance of the letters of administration and letters testamentary, the court becomes dutybound to direct the submission of inventory. Upon direction, it shall be the duty of the EXECAD to
prepare and submit the inventory within the 3 months from issuance of letters administration or
letters testamentary.
Will the inventory include property of the decedent but in the possession of another?
- Yes. All property appearing to be ownership of the decedent shall be included in the
inventory.
The usage of the word ALL in Section 1 demands the inclusion of all the real and personal
properties that are within the knowledge or in the possession of the executor or administrator that
he knows to belong to the decedent.
The phrase “true inventory” implies that no property appearing to belong to the decedent can be
excluded regardless of whether they are in the possession of a third person or not. Kasi kung sa
decedent yan kailangan mabalik yan, kung nasa possession ng iba yan and it belongs to the
decedent, the court needs to know so that the court will know whether or not it will allow the
executor or administrator to bring an action to recover that property.
Inheritance tax appraisers – the court MAY appoint to give their assistance to the EXECAD. Not
mandatory
Purpose: According to the Supreme Court, the purpose of inventory and appraisal is to aid the
court in revising the accounts and so that the court can determine the liabilities and in determining
later on the final and equitable distribution or partition of the estate. So it facilitates the
administration of the estate, it also resolved the question on collation.
Collation – Art. 1061, CC – should bring into the mass which the heirs received from the decedent
during his lifetime that may be as an advance in the inheritance
May the court determine which property should be in the inventory?
- Yes. The court is vested wide discretion as to what should be included in the inventory.
So as long as the RTC commits no patently grave abuse of discretion, the order of the
court must be respected as part of the regular performance of its judicial duty.
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If there are some properties that are sought to be inventory but the third person claims belong to
it, and the claim is adverse to the claim of the decedent (not by virtue of inheritance) Can the court
adjudicate?
- No. The probate court is court of limited jurisdiction and only relate to the probate of the
will, exceptions:
1. The probate court can provisionally pass upon in testate or intestate proceedings the
question of whether or not to include in the inventory a piece of property, but the final
determination of the ownership should be subject of a separate action;
2. Question is of collation
3. All parties consent, and all interested parties are parties to the case
So an advancement of the decedent on the legitime of an heir can also be heard and determined
by the court having jurisdiction in the estate proceedings. It also extends to matters that are
incidental or collateral to the settlement and distribution of the estate. What is another example of
collateral or incidental matter? the status of each heir, or whether the property is conjugal or the
paraphernal property.
Section 2
Under the discretion of the court, there are some that should not be inventoried, and therefore not
be administered and not considered as assets of the decedents:
1. Wearing apparel of the surviving spouse or children
2. Marriage bed and bedding
3. Provisions and other articles necessarily be consumed in the subsistence of the family
of the deceased (unless used in business or in the line of business)
The court may also determine what would be included and excluded in the inventory.
Section 3
Subject to discretion of the court – widow and the minor or incapacitated children receive
allowance as provided by law.
“as provided by law” – provisions on support under FC
Which courts grant support?
- The court referred to in Section 3 Rule 83 is the court hearing the settlement of estate,
why, because that allowance is to be taken from the common mass of the property and
the court that has jurisdiction over the property of the deceased is the probate court and
not the guardianship court. The guardianship court cannot enforce that allowance from the
mass of the estate because as we said, if you remember in rule 73, once the probate court
has jurisdiction over the case it continues to the exclusion of other courts. So it is the court
hearing the settlement of estate that should effect the payment of the widow's allowance
considering that the properties of the estate are within the jurisdiction of that court.
Is the support limited to minor or incapacitated children?
- According to the Supreme Court, allowances for support under section 3 rule 83 should
not be limited to minor or incapacitated, as the support subsists (like education) subsists
after reached age of majority.
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Is grandchildren included?
- No, regardless of whether the grandchildren are minor. The law clearly limits it to widow
and children, regardless of the age of the grandchildren
May it be subject to attachment or execution?
- No. because it is a purely personal right essential to the right of the recipient.
May the right be renounced or transmitted to third persons? No. Intransmissible and not subject
to attachment. Is this rule absolute?
CASE: Versoza v. Versoza GR No. L-25609, Nov 27, 1968
The Supreme Court held that support in arrears is a different thing altogether, it may be
compensated with what the recipient owes the creditor, renounced and transmitted by onerous or
gratuitous title.
The Supreme Court directed payment of monthly widow allowance. The opposing parties argued
against the grant of the widow allowance on the ground that there has been an issuance of a
resolution from the DOJ finding probable cause against the widow for falsification. They said that
the widow is not really a widow but merely a common law wife and that she just falsified the
documents and therefore, is not entitled to the widow allowance. Is the DOJ resolution on
falsification sufficient to refuse to grant the widow allowance?
- No. A finding of probable cause does not conclusively prove the charge of falsification
against the widow, it only says that there is sufficient ground to file an information but it is
not proof of guilt beyond reasonable doubt. So until the marriage is finally declared void,
the same is presumed valid. So the widow is still entitled to receive the widow's allowance.
Should the other heirs liable to widow support?
- No. It is chargeable to the mass of the estateestate.
Sabi ng administrator, we cannot give the widow allowance kasi the vast and entirety of the estate
of the deceased is still to be determined by the court. Is that a sufficient ground to suspend
payment of allowance?
- No. It is not an excuse from complying. Those properties identified so far should be
charged for the support of the widow.
Support that was given, it was later on discovered that it exceeds the fruits and the rents pertaining
to the widow. What will happen?
- Yung sobrang allowance na nabigay, it will be deducted from the share of that widow to
the estate.
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Section 1
Executor or administrator should have access to and may examine and take copies of books and
papers relating to partnership business.
So yung mga invoices of the property belonging to the partnership. Tapos upon request of the
executor or administrator, dapat yung surviving partners of the partnership should exhibit to the
executor or administrator all books and property within their hands or control. As i said, may
application, it should be a written application. Tapos sa court din pwede kang mag written
application, so instead na irequest mo sa surviving partners, you request it from the court. Then
the court may order the surviving partners to freely permit the exercise of rights and to exhibit the
books, papers and property. Should they refuse, the remedy is they will be punished for contempt
until they comply.
Section 2
The executor or administrator is also required to maintain in tenantable repair the houses and
other structures and fences belonging to the estate, and then they have to deliver the property in
such repair to the heirs or devisees when the court directs them to do so.
The house of the administrator was burned, so kinuha niya yung pamilya niya at dinala sa bahay
belonging to the estate of the deceased. This happened in 1942, that property is under the
administrator’s administration but there is no payment of rent. In the course of staying there, he
incurred expenses for ordinary repairs ng bahay. Now, the administrator is asking for
reimbursement from the expenses he incurred for the ordinary repairs, kasi sabi ng administrator,
kung hindi ako tumira diyan the estate would pay someone to watch over the house, kaya ang
ibayad niyo na lang sakin is reimbursement since nakatipid kayo from paying someone to watch
over the house. May the administrator seek reimbursement for the ordinary repairs?
- No. The Supreme Court held that during the period of his occupancy he did not pay rent
and so it is reasonable that he should take care of the expenses for the ordinary repairs
of the house. But as regards his allegation that had he not occupied the same, the estate
would need to pay someone to watch and take care of the house, the Supreme Court ruled
that it does not excuse him from his responsibility for the disbursements made for the
ordinary repairs because had the administrator stayed in a different house, he would still
be making the same ordinary repairs.
Section 3
The executor or administrator shall have the right to possession and management of the real as
well as the personal estate of the deceased so long as it is necessary for the payment of the debts
and the expenses of administration
Possession and management of the real and personal of the deceased only when necessary for
payment of the debts and expenses of administration
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May the EXECAD lease the property for more than 1 year without court permission or SPA from
the heirs that authorizes the administrator to enter into the lease?
- Yes. Lease is considered as an act of administration. So the rules authorize the
administrator to administer the estate of the deceased that is not disposed of by will. So
the executor or administrator has the power to administer for purposes of liquidation and
distribution and he may therefore lease the property without need of securing permission
from the court or authority from the heirs; and once the lease has been formally entered
into, it cannot be annulled to the prejudice of the lessee.
Art. 1647, Civil Code
Sinabi natin di ba that the executor or administrator can lease without need for judicial authority,
so ang tanong, will they run counter with Articlr 1647?
- No. The same does not run counter in Art. 1647, it only says that only when the lease is
to be recorded in the registry of property that it cannot be constituted without proper
authority. Meaning, regardless of the period of lease, there is no need for special authority
unless the contract is to be recorded in the registry of property. So kung hindi mo irerecord sa registry of property, there is no need for special power of authority.
Art. 1878, Civil Code
It says, a special power of attorney is necessary to lease any real property. So ang tanong, if an
administrator can lease without need for court approval or power of attorney from the heirs, will it
not violate Art 1878?
- No. 1878 is for agency. A judicial administrator is not strictly only an agent similar under
the Civil Code. Provisions on agency does not apply on judicial administrators.
Administrator is not merely representative of the heirs, they are also representative of the
court. Kasi yung agency constituted yan by a special power of attorney, a judicial
administrator on the other hand, is appointed by the court. So an administrator is not
merely a representative of the heirs, he is first and foremost also a representative of the
court as an officer of the court. The acts of the administrator are controlled by the court
and subject to bond and the actions are further subject to laws and rules.
Letters testamentary were issued, after letters testamentary was issued the court directed the
deposit with the court of the rentals of the property of the estate. So the executor is the son of the
deceased and therefore is also an heir. So the rentals were deposited. After the deposit was
made, the executor asked the court to release 50,000 for the payment daw of real estate tax.
Court only gave 7,000. So the executor again asked for money for repairs, maintenance and all.
So the court asked for the executor to submit an accounting of tax required, expenses of
administration and repairs needed. The executor contends that he does not need to submit an
accounting of the expenses as under the rules, he is entitled to the possession of real and
personal property and that the court is depriving him of his right to ownership and possession of
the property as an executor. Is the executor correct?
- No. because as we said earlier, the right of the executor or administrator to the
possession and management of all real and personal property is not absolute, it can only
be exercised as long as it is necessary to the payment of debts and expenses of
administration. So it is correct for the probate court to require him to submit an accounting
of necessary expenses for administration before releasing any further money in his favor.
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So the executor, even if he is an heir, has no right to the ownership and possession of the
real and personal property of the decedent because the right of an heir is merely inchoate.
It must be noted that the executor is the trustee of the estate, so he holds the funds in trust, so
the executor or administrator cannot unilaterally assign for himself the possession of all properties
and the fruits thereof without even submitting an inventory and appraisal of value and rendering
a true accounting. There has to be an accounting of expenses, of administration, the amounts of
obligations of the estate, the taxes, and all of these things. Just because he submitted it’s not
automatic, it is still subject to the determination of the court as to their veracity, propriety and
justness.
Section 1
Every executor or administrator is chargeable in his account with the whole of the estate that has
come in to his possession tapos yung value that is chargeable is at the appraisement contained
in the inventory and should include interest, profit, and income of the estate, and it should include
the proceeds of so much of the estate that is sold by the executor or administrator and it should
be at the price at which it is sold.
Rule is, the chargeable amount is the amount as appraised in the inventory or if there is a sale of
property the sale of the price is sold but this rule is subject to exceptions:
For instance if you go to Section 2 if there is profit and the sale more than the appraisement, and
the appraisement value is 1M sold at a profit of 1.5M so the 500,000 na profit, the executor
administrator cannot profit from it. So papasok din yan sa chargeable amount, but take note that
in this instance its not just the appraised value at the price at which it was sold with the profit, but
if it is sold for less than the appraisement, so let’s say that the value of the appraisement it 1M
but the selling price is 800,000 so effectively there is a 200,000 loss. As a rule the executor
administrator will not be responsible for that loss, but if he’s responsible for the loss, then he will
be liable for that.
E.g. claims against the estate. Loan of 1M, then compromise 300K, EXECAD only entitled to
charge 300K
Accountable if debt not collected due to fault of the EXECAD.
Section 2
The executor administrator will not profit by the increase and in the same way, as long as there
is no fault in the part of executor or administrator any decrease or destruction the executor or
administrator will not suffer by that.
Section 3
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The executor or administrator will not be accountable for the debt that is due the deceased, and
if the debt that is due the deceased is uncollected meaning yung deceased yung creditor,
collectible or receivable siya ng deceased. If it remains uncollected and the executor and
administrator was not at fault then he will not be liable for that, but if it is uncollected because of
the executor or administrator’s fault then he will be accountable.
According to the Supreme Court, inferred from Sec. 3 is that as a rule, the EXECAD will not always
be personally liable for the debts of the estate.
Example: The name of the executor is Juan Dela Cruz of the estate of Dona Pepay, lets say
there is a judgment in a collection case against the estate. A vs. Juan Dela Cruz as executor. now
there was a judgement rendered that held the defendant liable for the amount being collected by
the creditor, so ang tanong when the ruling did not distinguish whether that defendant is liable
personally or as representative of the estate, sabi ng Supreme Court obviously it doesn’t mean
that the executor is the one liable, sinabi lang the defendant but it is the defendant in
representative capacity of the estate.
Now, if the executor or administrator is the one who uses or occupies himself any part of the real
estate as in yung example natin kanina na nasunugan ng bahay at tinirhan ito ng pamilya niya,
he should account for what is agreed upon between him and the interested party or interested
parties can be the heirs. and then that amount is subject to the adjustment of the court, but if the
parties do not agree as to the sum to be allowed, then again the court will determine it. if the court
is the one who determines it, the court’s determination is final.
Section 5
What will be deemed waste and damage that is sustained that may be charged and allowed
against the executor or administrator’s account for which the bond of the executor or liable will be
liable: when the value of the estate is lessen or unnecessary cost or interest accrues.
Take note, not necessary hindi lahat ng interest, or any person interested like an heir suffers loss
or all of these are caused by the neglect of executor or administrator or in unreasonable delay to
raise money by collecting debts or delay in real or personal property of the deceased or neglect
to pay the money that he has in his hands. So essentially any loss suffered by the neglect or delay
of the executor or administrator, it can be charged against the bond. so that’s the purpose of the
bond among others.
Section 6
The general rule is that the amount that is paid by the executor or administrator for costs that is
awarded against him shall be allowed in his administration account.
When you say administration account, yan yung mga pwede niyong subject for reimbursement.
So yung cost that he paid or that are charged against him allowed in the administration account.
The exception is that when the action or proceeding or the case or the preceding where the cost
was incurred or the cost was taxed was prosecuted or resisted without just cost or not in good
faith.
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Section 7
What are the expenses and fees that are allowed in favor of the executor or administrator?
Necessary Expenses
1. Care and management of the estate
Example: Prior to the death of the testator, nagfile siya ng action to annul a donation inter vivos
so, the executor after the death of the testator incurred costs for the reproduction ng transcript ng
stenographic notes dun sa case in relation to the dispute sa revocation of donation. Then,
nagincur din ng cost for this lis pendens dun sa property na nirevoke ang donation ng testator
and then may cost ng annotation ng lis pendens and then yung case was subject of appeal again
there are appeal fees. Are these expenses chargeable to the administration account meaning
pwede ma reimburse?
- Yes, because these are done in connection with the performance of the duty of the
executor or administrator to gather the assets of the estate, kasi nga yung donation ng
testator nirevoke niya so obviously if that donation is revoked then it forms part of the
estate. So, all of these expenses in relation to the case are expenses incurred so that the
testator can gather the assets of the executor and put it back to the estate. These
expenses can be charged against the estate.
2. Fees
1. Services
a. 4 pesos per day for the time actually and necessarily employed;
2. Commission – depends on the value of so much of the estate as comes to his
possession
a. 2% does not exceed 5,000;
b. 1% exceeds P5,000 but does not exceed P30,000;
c. 0.5% exceeds P30,000 but does not exceed P100,000
d. 0.25% exceeds P10,000
Is this absolute?
- No. A greater sum may be allowed if:
1. Estate is large;
2. Settlement has been attended with great difficulty;
3. Settlement has required a high degree of capacity.
Greater sum, whenever applicable, then yung 4pesos or commission na may schedule, provided
at the following circumstances are present, subject to the discretion of the court.
Is determination of fees appealable?
- Yes, appealable. However, it will not be disturbed on appeal unless there is grave abuse
of discretion.
Wide latitude or leeway of discretion is given to the trial or to grant a greater sum.
Example: A new administrator was appointed and then with the new administrator naka enter siya
ng agreement and negotiate to increase the amount of rent so with his skill on negotiation napa
akyat niya yung profit or income ng esate for 3 parcels of land. and then the other parcels of land
na hindi pa fully paid nabayaran nung administrator because of the measures made by the
administrator. Tapos, it was discovered na meron mga nakakuha ng advance money ng heirs
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which should not be allowed prior to distribution so upon motion nakuha ulit ng administrator yon.
In this instance the administrator is a lawyer. Will the fact that the execad is a lawyer entitled a
higher fees?
- No, just because he is a lawyer, it will not warrant higher fees but it os because of his
efforts, it is because that he was able to stop improvident disbursement of a substantial
amount and he was able to do this without a need to employ outside legal help that would
have incurred additional expenses.
So, the ruling of the court is for us to determine whether or not an administrator will be
entitled to a bigger amount in the special case, the act should not be the something
performed routinely. There has to be a step made to stop what appears to be improvident
disbursement of substantial amount without having who employed outside legal help at an
additional expense of the estate.
In one case, sabi nila, bigyan natin ng mas mataas si administrator kasi nabayaran niya BIR
taxes, sabi ng court that is routine; there is nothing special about that yan talaga yung duty niya.
That would not entitle a bigger compensation.
If there are two or more executors or administrators the compensation will be appropriated upon
them by the court according to the service that is rendered by them. So is that automatic that they
get equal amounts? It depends.
If the will provides the fee entitled to the EXECAD, then it is in full satisfaction of the fees unless
he waives. Unless he executor renounces his claim so yung exception is not for the increase, but
to remove it when he renounces his claim.
If there are objection to fees, the remedy is appeal
When EXECAD lawyer, cannot recover attorneys fees from the estate. Why? Kasi yung
compensation ng executor or administrator is fixed by the rule so it is in the nature of a commission
or is included in the will unless it is renounced, never as attorney’s fees. So, if the probate court
allows attorney’s fees in favor of an executor or administrator that is a lawyer then it is great abuse
of discretion according to the Supreme Court.
Who will shoulder the attorney’s fees then?
- Those liable are the client, i.e., the heirs, not the estate.
Section 8
Rendering of account – 1 year from appointment – Mandatory
Is this rule absolute?
- No, because the court can otherwise direct an extension if the extension is due to delay
in presenting of claims against estate or paying of debts etc.
Then it is not only a one time rendering of account, because the rules provide that the executor
or administrator will also further render accounts as the court may require until the estate is wholly
settled.
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The administrator submitted to the probate court yearly accounts, with the conformity of all the
heirs the administrator filed a motion praying that he will be relived of further duty to render a final
account. The court granted the motion, 3 months later there was already a project of partition,
approved; all properties were distributed. After the distribution of properties, one of the heirs
moved for submission for a final accounting which the court denied. Kasi nga daw excused yung
administrator from final accounting. So the court denied one of the heirs for final accounting, kasi
nga inexcuse na ng final accounting yung administrator. Is the court correct in denying the final
accounting motion?
- The court was correct. Bakit? The rule is that, it is the duty of the administrator to prepare
periodical reports of the assets and properties under supervision. But after submission of
the initial report, if all the parties beneficially interested, provided that they are all of age,
and not suffering from any legal disability, they may all, with the approval of the court,
release the administrator from obligation to render further accounts, by express or implied
agreement for as long as there is acquiescence of the heirs.
Once there is a discharge and as long as it is not a violation of law, it can no longer be
revoked or set aside, so in this case all the heirs give conformity to release already the
administrator for rendering a final account periodically and initial accounting meron, final
account na lang yung nirelease siya so that is allowed and as we said in administration of
estates of deceased persons judges are afforded discretionary powers. It cannot be
interfered with a unless there is grave abuse so yung heir na humingi na pumayag na siya
to release, it cannot be revoked anymore.
Note: It is the duty of the EXECAD to make periodic reports; after submission of initial report, if
all parties beneficially affected, release the executor from further report so long that there is
acquiescence of the heirs. Once made, it can never be set aside.
Executor appointed after the issuance of letters testamentary. He did not render account for 1
year, 6 years na wala paring account. Court directed the account but did not comply. Court set a
final deadline, and after the final deadline made final account. But the executor was already
removed. Is the removal justified or not?
- Yes, justified. Mandatory ang 1 year unless the courts extended it. No fact showing that
the period was extended. One of the grounds for removal is failure to render account. Late
submission did not cure failure to make account
Mr. X appointed co-administrator. Day after appointment, heir sought accounting from the coadministration, court denied because premature. Heir appealed. Is the remedy of appeal correct?
- No. With the denial of X’s accountability as co-administrator, it does not preclude or
forestall future accounting. Pwede pa nama later on. That motion fo accounting is
premature because it is due within 1 year from receiving the letters administration. 1 day
pa lang simula nung natanggap nya. Order or denial of motion to accounting interlocutory
order, and may only appealed upon showing GADALEJ
Section 9
Relates to matters of accounting rendered by the EXECAD. EXECAD may be examined upon
oath, relating to matters on accounting rendered by the executor or administrator. The court will
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examine as to the correctness of the account before it approves of the same. It follows therefore
that when EXECAD submits accounting, hindi automatic na okay na yon; the accounting is subject
to approval by the court.
If there’s an allegation of illegal transfer, the mere examination alone by the court, the examination
of the judge alone on the administrator executor does not finally settle the issue of illegal transfer,
because the examination is merely in the nature of fact finding inquiries so here the purpose is to
elicit information relative to the estate or properties.
The examination does not resolve automatically the issue on illegal transfers. In the same way,
the heirs, legatees, distributees, and creditors even of the estate should also have the same
privilege as the executor or administrator of being examined on oath on any matter relating to the
administration account. So lahat actually pwedeng iexamine.
If there is no objection made to the allowance of the account, and the court finds that it is
satisfactorily establish by competent proof then there’s no need for examination.
When court finds that it is satisfactorily proved, then no need for examination.
Section 10
Before the account is allowed, notice to all interested parties on the date and place of examining
the correctness of the account – personally or advertisement or both, depends to the court.
Because the parties may manifest their objection on all or any of the items o the account. The
court will evaluate this and then the court can examine all of them before approving the account.
Section 11 – Surety on bond
Upon the settlement of the account of the EXECAD, a person liable as surety, upon application
may be admitted as party to such accounting. Kailangan niya mag-apply para maging party siya
to such accounting. If did not apply, is it assumed that he is bound by the liability of the EXECAD?
Syempre ang magbabayad yung surety.
X appointed administrator and submitted bond with S as surety. Subsequently, X was dismissed
as administrator. New administrator appointed. X was directed to deliver the balance in the
money. Instead of delivery of allowance, submitted itemized authorized disbursements and
delivered on several occassions money to the adopted child of the deceased. Court found X guilty
of disbursement and charged with estafa. X pleaded guilty and convicted and made civilly liable
to return the disbursed money. The surety was directed to show cause why the bond the surety
made should not be confiscated. Surety: the court cannot order motu proprio confiscation of the
bond. May the court order motu proprio confiscation of the bond? Is the surety correct?
- No. A probate court is possessed with an all-embracing power not only to fix the bond
but also the forfeiture of the administrator’s bond. so pwedeng execution or forfeiture of
administrator’s bond, because this is necessary and part of or incident of the
administration proceedings. the probate court may have the bond executed in the same
probate proceeding. and the condition of the administrator’s bond is that the first
administrator X should faithfully perform his duties and orders and decrees of the court.
so otherwise, the obligation or whatever transaction is void, so here its established that X
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first administrator need disbursements without the courts’ authority, so obviously the bond
will be liable and hence the surety will be bound upon the same terms of the bond.
Surety contends relieved of liability as he did not receive notice of the examination of account, is
the surety correct?
- No. From the nature of obligation, the surety is the privy to the principal and is bound.
And in the absence of fraud or collusion, he is bound.
Bound sya don even though he was not participating in the proceedings kasi nga principal
niya si administrator. So even if they are not proceeding against the administrator nor were
they notified in connection with those proceedings still the court can issue an order for the
court confiscation of the bond.
“May be admitted as party to such accounting” – surety not entitled to notice kasi privy na sila sa
administrator, but may intervene. But he can do so upon application but it doesn’t mean he’s
entitled to notice kasi di may notice na siya through the administrator.
Section 1 – Notice to creditors;
Section 2 – Time within which claims shall be filed
So pagka-grant ng letters testamentary or letters of administration, mag iissue na din si court ng
notice and the court will require all persons that have money claims against the decedent to file
them in the office of the clerk. So dun sa notice sinasabi the court should also state the time for
filing the claims against the estate. The court can specify a time basta the time is not more than
12 months but not less than 6 months after the date of first publication.
Deadline for filing claims shall not be more than 12 months and not more than 6 months from first
publication. Note: reckoning point
If lumagpas ng 12 months, may file claim?
- Yes. As long as before at any time before the order of distribution is entered, 1) an
application 2) showing cause for failure to file within 12 months and upon such terms may
impose and 3) the period should not exceed 1 month from order.
Claimant was not able to file his claim because he was still negotitating with the heirs. Valid
justification to warrant extension?
- No, not sufficient. Not a good excuse. why? Alam na niyang patay ngayon wala siya
ginawa to present his claim. It’s not a good excuse that is neglect daw.
Creditor filed a collection for money claim against debtor. After presentation of evidence, debtor
died. Debtor was substituted by the executor. Creditor amended complaint impleading executor.
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Executor made counterclaim. Administrator appealed. While appeal, the creditor filed a contingent
claim beyond the period provided in the notice of claims. Creditor won appeal and became final
and executory. Now, the creditor in the estate case, the creditor moved for payment of the
judgment debt. Administrator opposed, the claim as time-barred. Court still allowed the claim.
Proper?
- Yes. At the time that the claim was filed, there was still no judgment in the civil case.
Nevertheless, there are also circumstances here, that warrant also the approval because
as you will remember here the administrator appeared in the case; sinubstitute niya yung
debtor and the administrator even filed an answer with counterclaim, therefore the
administrator had notice of the claim of the creditor and the administrator did not complain
and even substituted and filed an answer with counterclaim. The administrator actively
participated in the case to protect the estate against the claim of the creditor so there was
trial and he lost in the case, and the administrator even appealed he elevated the case.
Now, the judgment became final and executory and the administrator cannot make an
excuse na, hindi pwede wala akong notice of the claim, because obviously he knew of the
claim because he actively participated in that case. So while it is imperative that the claims
must be filed with the probate court, this period may also be waived by the estate
representative as in this case by the administrator’s acts and conduct of participating in
that case, filing an answer, filing a counter claim.Hhindi niya inobjectan yung claim na yon
in that civil case by alleging the statute of claims, never niya niraise yun.
BIR deficiency income tax of the deceased, filed the claim in the settlement of estate case pero
lagpas na yung period of filing the claims. Should the claim be allowed?
- Yes. See S5 on all claims for money of the deceased, express or implied, whether the
sum be due or not due or contingent, all claims for funeral expenses, expenses for last
sickness of the decedent, and judgment for money against the decedent.
Ang sabi ng Supreme Court, taxes are obligations created by law and not included in the
enumerated in Section 5 and by the principle of expression unius et exclusion alterius it
means excluded ang taxes dahil hindi sya kasama sa enumeration.
So if the statute enumerates things and excludes some, those excluded are not included. Hindi
daw yan mag-aapply sa obligations imposed by law, especially because of the taxes. Life blood
daw yan ng gobyerno, kaya kelangan talaga magbayad ng buwis. Tax against the estate of the
decease, or estate tax, does not need to submitted to for ordinary claims for money claims. So,
in the exercise of control of the court, the court may direct payment of taxes upon showing that
these taxes have been assessed against the estate.
Taxes claimed belatedly, i.e., after distribution of the estate. Allowed?
- Yes. The ones who will be liable are the heirs in proportion to their inheritance. The
reason for the liberal treatment of claims for taxes is the lifeblood theory. The neglect or
omission of government officials entrusted with the collection of taxes will not be allowed
to bring harm to the detriment of the people. So hindi kasama sa enumeration ng Section
5 ang obligations imposed by law.
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Sabi ng Supreme Court, even assuming that taxes fall under the period under the enumeration in
the Rules, still, hindi naman strictly six months to twelve months. It can be outside with the
discretion of the court.
Section 3
Publication of notice to creditors.
After the notice to creditors was issued, the executor or administrator should cause that notice to
be published three weeks successively in a newspaper of general circulation in the province
Is publication enough?
No. The rules say publication AND posting in the same period in:
- 4 public places in province
- 2 public places in municipality
Section 4
Within 10 days after notice is published after notice has been published and posted, file printed
copy with an affidavit that sets forth the days of the first and last publication, the name of the
newspaper in which the same is printed.
Section 5
Claims which must be filed under the notice. If not filed, it is barred, exceptions:
1. If it is set as a counterclaim in any action EXECAD may bring against the claimant.
Let’s say the executor tells Mr. X, “hoy pota ka, may utang ka against the deceased.” Sabi
ni Mr. X, “pota ka, may utang rin si deceased sakin.” May counterclaim siya. Yung
counterclaim, okay lang na hindi siya nag-file ng claims sa probate court because it is a
counterclaim in a case filed by the executor.
Anong claims? Money claims executed under a contract, express or implied, whether due, not
due or contingent. The phrase “contract, express or implied” includes purely personal obligations
other than those that have delict or tort as their source. So kung hindi siya delict, quasi-delict,
pasok siya sa “contract, express or implied.” Kung quasi-contract, pasok rin kasi hindi yan delict
or tort. So it’s not enough that there is a claim, there must be for money and it must arise from
contract, express or implied.
Paano kapag contingent pa lang siya?
- The contingent claim may be appraised at their present value. Ano ba ‘tong claims na
ito? Generally construed as debts or demands of pecuniary nature that can be or have
been enforced against the deceased during his lifetime and could be reduced into a
monetary judgment. Based on contract yan, obviously breach of contract kasi hindi mo
binayaran or hindi mo na-perform.
Do you file it directly against the executor or administrator?
- Hindi. You file your monetary claims sa estate, to the clerk of court by filing your notice
of claims within the statute of claims period. Dun ka sa settlement court mag-fi-file. But
there are still some claims that you can file against the executor or administrator. But for
now, know that there can be claims that you can file against the executor or administrator,
and these are limited to recovery of personal property, or to enforce a lien thereon, and
actions to recover damages for injuries to person, which can be delict or tort, and injury to
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property, pwede rin yon. Basta hindi delict or tort. Kapag delict or tort, sa executor or
administrator.
A creditor alleges that there are unpaid services for repair during the lifetime of the decedent.
Sabi ng creditor that is an obligation arising from law. Is the demand for payment of unpaid
services a claim arising from law?
- No, it arises from contract.
In addition to money claims, ng mga breach of contract na yan, kasami rin ang funeral expenses
and expenses of the last sickness of the decedent, and kung may nakuha na ng judgment for
money against the decedent, nanalo ka na before siya namatay or after mamatay, dun mo rin iclaim sa statement of claims. If the decedent is already facing an action or filed an action before
his death, itutuloy ni executor or administrator. And then if the debtor or creditor are mutual
creditors of each other, pwede na sila mag-set off.
If debtors and creditors are debtors and creditors of each other, may offset in settlement.
Execution in case of death of party
Sec. 7, Rule 39
Sec. 7(a) – If the creditor dies, after entry of judgment was issued by the lower court. It
presupposes that entry of judgment was already issued by the lower court. Final and executory
na yung kaso. If the party who dies is a creditor, all that will happen is the executor or
administrator may apply for enforcement of that judgment.
Sec. 7(b) Debtor dies and there is already an entry of judgment. The debtor dies, and the judgment
involved is one for recovery of real or personal property, or enforcement of a lien. As I said earlier,
you enforce it against the executor or administrator. You do not file this in the settlement of
proceedings case. You go and enforce it against the executor or administrator. So the writ of
execution may be issued against the executor or administrator, or against the successors-ininterest kung walang executor or administrator.
Sec. 7(c) There is already an entry of judgment issued. Now, the judgment involved is a money
claim. However, take note, and I cannot emphasize this enough, na mag-aapply lang yung (c)
kapag lang may order of entry of judgment (decision is final and executory) and after there
is already a writ of execution and after there is actual levy on the property. Kapag may order
of entry of judgment and meron nang writ of execution, pero wala pang levy on the property, hindi
mag-aapply ang (c).
Dapat actually levied upon any of his property. So ulitin ko, nagka-judgment against the debtor,
nagging final executory, tapos nagkaron ng writ of execution, nagka-actual levy na ng property,
tapos the debtor died. In that instance, there is no need for you to avail of Sec. 5, Rule 86 on the
filing of claims. Hindi na kayo mag-fifile ng claims sa settlement court. Basta actually levied na
yung property of the judgment debtor who died, pwede mo na ituloy-tuloy from levy to sale for the
satisfaction of the judgment. Kasi pag natapos yung levy, sale na yan at a public auction. Let’s
say yung utang is P500k, yung property nabenta ng P1M. Yung balance or sobra na P500k, the
officer who made the sale, will account the excess to the executor or administrator.
Money claims still pending must still be filed within the period in the settlement court. Exception:
1. Government, and it is for the payment of the tax; it is an obligation imposed by law;
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2. Recovery of personal or real property or enforcement of lien thereon, or delict of tort –
directly to the EXECAD
3. EXECAD filed against debtor and debtor filed counterclaim
4. When there is actual levy before death of the decedent. Deretso ka na sa sale.
Money judgments should also be filed in the settlement court. Kaya nasabing money judgment,
kasi nanalo ka na, pero hindi pa umabot sa stage ng levy of property. The only benefit of you
having a monetary judgment is that the judgment is already conclusive upon the courts. There’s
no need for you to have that claim. The court will recognize that judgment on your money claim.
What do I mean? Nag-file ka ng collection case against the debtor. You won the case. Sabi ng
debtor, “pakshet, may utang akong P10M. Inatake sa puso, namatay. Hindi nakapag-appeal kasi
namatay. The judgment became final and executory. Can the creditor execute the judgment in
that civil case? No. I-fifile yan sa settlement court. The only time that you will not file it with the
settlement court is if nakapag-levy ka na ng property. If there is no execution and actual levy yet
on the property of the debtor, kahit may favorable judgment ka na, dadalhin mo yan sa settlement
court. Because Sec. 5 categorically mentions monetary judgments.
The benefit of having a prior judgment is that the judgment (right to the claims) is already
conclusive upon the court. Kasi may judgment ka na, there’s no need for you to prove it, you just
need to file it. Wala nang proceedings for the court to determine whether it is a real claim or not.
Is filing of claim an initiatory pleading?
- No. It is more of a motion for approval of the claim. So a motion does not initiate a new
litigation. Rather it brings material or incidental matters in relation to the progress of the
case for the consideration of the court. It is not an independent right or entity. It is collateral
to the main case. Money claims are only incidental to the settlement of the decedent’s
estate. Note that the probate proceeding is initiated upon the filing of the petition for
allowance of the decedent’s will.
Mr X filed for collection of overtime pay against Z. X won. Z appealed. Z died then substituted by
EXECAD. The property was levied and sold to highest bidder (the employee). Employee sold to
third person. Motion to quash writ of execution was filed. During pendency of the motion employee
sold the property. The execution was set aside by the trial court.
1. Should the case be dismissed upon death of the employer pending appeal?
- No. R3S20. Sabi ng Section 20, pag namatay yung defendant before the
judgment, the case will not be dismissed. Instead, it will be allowed to continue
until entry of judgment. A judgment in favor of the plaintiff shall be enforced in the
manner of prosecuting claims against the estate. Yung manner ay nasa Sec. 5,
Rule 86.
2. What is the effect of death in the obligation?
- Let’s distinguish between a civil case and a criminal case.
Civil Case
As a general rule, the death of either the creditor or debtor will not extinguish the
obligation. Monetary obligation tayo ah. Because the obligation is transmissible to
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the heirs, except if the transmission is prohibited by law, stipulation of the parties,
or the nature of the obligation. Only purely personal obligations are extinguished
by death.
Civil liability of Criminal Case
Ano rules kapag namatay ang accused? Is the criminal liability extinguished? Yes.
The civil liability ex delicto (civil liability that arises from the crime) is also
extinguished. During the pendency of the case ‘to ah. During the pendency of the
case, if the accused dies, the criminal liability extinguishes also because of the
presumption of innocence. Ngayon, since you’re not criminally liable, the civil
liability that arises from the crime cannot exist without the crime.
However meron ka pang independent civil actions. And the existence of
independent civil actions is not based on the criminal case, but it is based under
Article 32, 33, 34, 2176 (torts). And that can survive. In other words, ang maeextinguish lang ay yung civil liability ex delicto. But civil liabilites arising from other
sources such as quasi-delicts, torts, law, pwede pa yan maituloy. If it is a quasidelict, you bring it against the executor or administrator.
If the accused is convicted, and together with the conviction there is a civil liability,
then that conviction and civil liability judgment becomes final and executory. After
it becomes final and executory saka lang namatay yung accused. In that instance,
the civil liability arising from the crime, tuloy. Because there is already a ruling on
the criminal liability. It’s just that you cannot have the accused serve the sentence
anymore.
In the case of death of defendant during pendency of appeal in a case for collection of sum of
money, may a writ of execution be issued in collection case?
- No. Namatay na yung defendant pending appeal and hindi ka umabot sa levy of
properties. When it is a money judgment, should file claim in the settlement court, basta
as long as not a tort or recovery of property filed directly to the EXECAD.
Writ of execution is void, binds no one. Void because of the improper remedy. It must be made
as a claim against the estate.
Liability of distributees
Sec. 4, Rule 74
“and if within the same time of two years x x x” This presupposes, for background of Rule 74, we
can have summary settlement or extrajudicial settlement of estate. Mabilis na yung proseso kasi
wala ka na i-aappoint na executor or administrator. Pagkatapos, ididistribute na yung properties.
Nakalagay dun, if the heirs are already in possession of their respective portions of the estate,
and it appears within two years from the distribution there are still outstanding debts of the estate
that is not yet paid, the court having jurisdiction of the estate may order for that purpose, but after
hearing, to settle the amount of the debts, and order how much and in what manner each distribute
shall contribute in the payment and may issue execution if circumstances require.
Period is 2 year, court can execute against distributes claim of creditors
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Bakit distributee? Kasi nakuha na yung share. So dito, meron tayong execution, hindi na ‘to
settlement of estate, filing of claims for unpaid obligations. This is specific to summary settlement
and extrajudicial settlement. Obviously sa extrajudicial settlement wala ka nang court
proceedings. If within that two year period it appears na merong claim, the court can execute it
against those distributees in proportion to what the court orders.
Why is it that even if you won the case already, you need to file the claim with the settlement
court? Sabi kasi ng Supreme Court, kasi all the properties of the estate are within the jurisdiction
of the court. The jurisdiction of the court is over the properties of the estate and continues until
the properties are distributed to the heirs. It is the probate court that has jurisdiction over the
properties from which payment of the claim will be sourced from, then you file it with the settlement
of estate proceedings.
What if nakakauha ka ng writ of execution (yung example kanina, X v. Z), minove to quash yung
writ of execution, but during the pendency ng motion to quash, binenta na nung empleyado to a
third person. After that saka sinet-aside yung writ of execution. Pwede ba yun?
- Yes. Because the writ of execution was void in the first place. Since it is a void order, it
has no legal effect and thus is not binding to anyone. Ang contention kasi nung purchaser,
he cannot be bound to set aside the writ of execution. Hindi naman daw siya party to the
case. Purchaser daw siya in good faith and for value and therefore he cannot be
prejudiced. Sabi ng Supreme Court hindi kasi alam niya yung motion to quash the writ of
execution. And before the motion to quash can be resolved, it was sold to him.
Father purchased 3 tractors and entered 3 chattel mortgages. Before he could fully pay the loan,
he died. Father left behind 2 heirs and left a holographic will saying that he leaves all his properties
to his son and his daughter. During probate proceedings, they entered a joing agreement
agreement to divide the tractors: two to the son and one to the daughter. and once they take
possession, they will assume the loan on the tractors in proportion. The creditor filed a collection
of a sum of money case against the son and daughter on the basis of the assumption of loans.
However, the civil case for collection was dismissed by the court.
1. Was the partition valid?
- No. Because there is still probate proceedings pending for the allowance of the
will. No property will pass to the heris without the will being approved. Hence they
cannot partition. In testate succession, there can be no valid partition among the
heirs until and after the will has been probated.
Since the probate court acquired jurisdiction over the proceedings, properties of
the estate are under the jurisdiction of the settlement court. Ang step before madistribute heirs, kailangan muna mabayaran ang mga outstanding debts. It’s
possible that these tractors may be sold in auction to pay for the outstanding loans.
Thus it’s improper for the heirs to distribute them among themselves.
2. Was the assumption of debt valid?
- No. The condition of assumption depends on the possession of the tractor. So if
they cannot possess the tractors, they cannot assume the loan. But they cannot
rightfully possess the tractors because the partition is invalid. Hence the condition
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is not complied with and accordingly even the assumption of loan has no leg to
stand on.
3. What is the remedy of the creditor?
- File a money claim in the probate court within the period for filing claims, not to
file a collection case.
Debtors died during the pendency of the case. No settlement case was filed after the death of the
debtor. Does this mean that the heirs are individually liable?
No. The liability is not against the heirs but against the estate.
CASE: Social Security Commision v. Alba G.R. No. 165482
Unpaid SSS remittances are not covered by Section 5, Rule 86. Because it is an obligation
imposed by law.
Claim for death for Workmens Compensation against the deceased? No, imposed by law
Necessary expenses of former possessor, claim under Section 5, Rule 86? Yes, implied contract
(quasi-contract)
Backwages against deceased employer, Section 5 Rule 86? Yes
In case of moratorium in payment, can it be filed against the estate? Yes.
Section 6
Presupposes that there is more than one debtor, and one of the debtor died.
In case of solidary obligation, is the only recourse against the estate? No.
If joint obligation, claim will be confined with the portion corresponding to one of the joint debtor.
E.g. P90,000 then there are 3 debtors, then only P30,000 may only be claimed against the joint
debtor.
X filed against collection against solidary debtors A, B, C. During pendency of case, one of
solidary debtors died, then the court dismissed the case. Is it correct?
- No. Art. 1216, CC. Grants the creditor satisfaction of debts from one, some, or all of the
solidary debtors. Case may proceed against the solidary debtors
Section 7
Remedies of a creditor that holds a claim against deceased secured by a mortgage or other
collateral security. These remedies are independent and mutually exclusive of each other so the
election of one bars the exercise of others. It also applies where the administrator is the one who
mortgages the property of the estate to secure the loan.
1. Abandon the security, prosecute the claim under Sec. 5, Rule 86 and share in the
general distribution of the assets. i.e, file claim under Sec. 5, Rule 86, akin to a collection
of sum of money, meaning foregoing the security
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2. Foreclose the mortgage upon the security by action in court on special civil action for
judicial foreclosure of mortgage; deficiency to be filed under Sec. 5, Rule 86 as an ordinary
claim against the estate; and
Who will be the defendant in foreclosure case? The EXECAD.
Paano kung wala pang EXECAD? Court authorize appointment of special
EXECAD.
Can you ask the probate court to foreclose the mortgage? No. Probate court is
court of limited jurisdiction. The only you can file in probate court is your claim
against the estate.
Can you avail both options simultaneously? No. Availment of one option forecloses
the other.
3. Rely on the security alone – if there is deficiency, you will not file it against the
settlement. You will not recover the deficiency anymore. This includes extrajudicial
foreclosure of mortgage. In case of extrajudicial foreclosure of mortgage, deficiency
cannot be recovered.
The EXECAD may still redeem the property foreclosed by paying the debt. After payment of debt,
the debt is released and may recover the property foreclosed. The remedy is exclusive; the
availment of one precludes the other. Same remedies are available even if obtained after the
death of the decedent.
Defendant X engaged services of counsel to represent him in a civil case during his lifetime, at
the time X agreed that he will pay the attorney’s fees at the amount of 20% of the value of the
property subject of litigation but payable upon determination of the case. Judgment was in favor
of X, but X died. Testamentary proceedings initiated, and that the administrator was substituted
in that civil case against X, the defendant. There is a charging lien against a lawyer. Where should
the charging lien be charged, sa civil case ba where X is the defendant or in the probate court
where there is testamentary proceedings?
- In the civil case. What is applicable here is Section 7 Rule 86 because here you have a
creditor who is the lawyer holding a claim secured by collateral security and yung
collateral security na yan is yung lien mo
Charging lien is an attorney’s lien. It is a right against judgment. In this case, the property
Is the collateral as the charging lien. In order to force the charging lien, notice must be
made and there must be approval of the court. Approval of the court in civil case is needed,
because it is tantamount to foreclosure of mortgage.
Saan mo gagawin yung notice and approval ng court, is it with the probate court or with
the same civil case?
- Where that property is subject of litigation. Dun sa civil case in that ordinary action not
with the probate court kasi it is similar to a judicial foreclosure and in that instance the
probate court has no jurisdiction for that so you execute the collateral in the case where
that is the subject.
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The estate was summarily distributed with the approval of the court. Mortgagee decided foreclose
under the third remedy. Property title already transferred to the first heir. Can it be foreclosed?
- Pwede pa but in this instance there is no executor or administrator appointed in summary
settlement of estate. But we said if you file an action for judicial foreclosure dapat file it
against the executor or administrator so in this instance since there is no one, and the
estate has been distributed so walang settlement of estate na procedure in accordance
with the process discussed. So you can foreclose it against the heir who received the
mortgage property.
Section 8
What if yung executor mo naman or administrator ang may claim against the estate that he
represents?
Pwede naman pero kailangan magbigay siya ng notice to the court tapos insofar as that claim of
the executor or administrator there will be a special administrator who will be appointed. So meron
ka magiging executor administrator for all other claims and then for the claim belonging to the
executor administrator meron magiging special administrator. Notice to court in writing, and
insofar as that claim is concerned, there will be a special administrator/executor for that purpose.
This refers to claim as a creditor, not claim for ownership. If this is claim for ownership but not
arising from inheritance, the proper remedy is a different action for accion reivindicatoria; the
probate court has no jurisdiction over that.
Section 9
How do you file the claim, contents and notice? Nasa codal, basta ang claims niyo has to be
supported by affidavits and dapat nakalagay dun yung amount due that no payment has been
made which are not yet credited are now offsets to the sale if the claim is due.
If the claim is not yet due or contingent, there must be affidavit supporting particulars thereof by
the claimant. Can it be made by other person other than claimant? Yes, but there must be
statement why is it not the claimant who made the affidavit.
The claim, once filed, it is attached to the record in the case where letters testamentary or letters
administration were issued by the court.
Section 10
EXECAD must answer 15 days from service, the EXECAD must file answer. They will admit or
deny the claim; the denial must be specific. There must be basis of the specific denial or
admission. Denial for lack of knowledge – considered as specific denial.
Creditor claim against the deceased, and the deceased has claim against as creditor, may offset.
The EXECAD may claim offsetting of the obligation. If not raised by the EXECAD, no offset.
Can the 15 day period to file an answer be extended? Yes, the court in its discretion extend the
final answer.
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Section 11
EXECAD can entirely admit the claim. In such case, filed with the clerk of court, and in such case
the court MAY approve the claim without hearing.
In such case, automatic bay an iaapprove ng court?
- No, kasi sabi sa rules may approve without hearing, so may hindi automatic. if it is an
admitted claim, it’s not automatic to be approved but it may be approved by the court even
without the need for hearing. Pero pwede rin na in the discretion of the court even if it
admitted claim by the executor or administrator, magpapa hearing muna yung court.
Court may conduct a hearing and in such case notify heirs, legatee, devisee. If heir, legatee,
devisee opposes, they will be given 15 days to file opposition.
If no contest but did not admit, considered as admitted without contest.
What if the court set it for hearing but did not appear, no violation of due process; the right to due
process is not actual hearing but it is the right to be heard, which can be waived.
Section 12
If there is contested claim, there will be trial with notice to parties. It is also possible to be referred
it to a commissioner. In case referred to commissioner, refer to Rule 32.
Sec. 13
Any ruling of the court approving or disapproving the claim is this appealable?
- Yes.
What about if the probate court makes an order for the payment of the special administrator’s
commission at 1% of value of the estate, is this ruling appealable?
- Yes. The payment of the commission of the administrator is actually the ruling of the
court already on a claim, so that is an allowance of a claim so that is the final matter on
the bayad of the special administrator. So the commission is appealable, because that
commission is no less than a claim against the estate.
The court issued an order and in the order nagdesignate yung court ng accounting firm to conduct
an audit ng administration and at the same time nag order yung court ng payment of special
administrator’s commission. Is this entire order appealable?
- Not entirely appealable. There are two aspects: first is insofar as the appointment of
accounting firm – this is an interlocutory order, this is appealable by certiorari; second is
an order of commission – a final order. In special proceedings, there can be multiple
appeals, so there can be certiorari and appeal in one decision.
So dalawa yung remedies mo for those ruling of the court contained in a single order and can a
single order be a subject to two remedies?
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- Yes because in special proceedings we can have multiple appeals. So sabi ng Supreme
Court eh kung pwede nga multiple appeals sa special proceedings, then pwede ka rin
mag isang appeal isang certiorari kasi yung isa interlocutory yung isa final judgment.
Section 14
“If the executor administrator in the answer admits or offers to pay a part of the claim,” ang ibig
sabihin lang ng Section 14, kunwari may claim P100,000 and inoffer ng executor administrator is
P50,000 na lang nirefuse ng claimant, sabi ng creditor, ayoko nga pero later on ang naging
allowed claim niya lang is P25,000 which is lesser than the offer of the executor or administrator.
In that instance. the claimant is the responsible for cost when the adjudged claim is less than what
is offered by the EXECAD. Why?
Because the claim has no basis. The cost in relation to the claim is on the creditor because his
claim is without merit. Had he accepted that P50,000 o eh di hindi na naincur yung cost ng
litigation in so far that claim is concerned kasi mas bababa yung actual na nakuha niya.
Rule 86 – Money claims arising from express or implied contracts;
Rule 87 – Recovery of real or personal property or interest or enforcement of lien thereon or
damages.
Rule 87 are claims that survive the death of decedent. So when you say it survives the death, you
do not file it in the claim against the estate, but you can file it against the executor or administrator.
1. recovery of property or personal or an interest;
2. enforce a lien thereon and;
3. recovery of damages or injury to person or property
When you say injury to person or property, mga damages arising from quasi-delict or tort.
Why is recovery of property or interest therein or enforcement of a lien thereon claimed against
executor or administrator?
- Ginawa ng debtor during his lifetime, hiniwalay na yung estate for payment of the debts.
Effectively removed from the estate; it is already earmarked for the satisfaction of the debt.
- Probate court has no power to enforce lien provided by the statute.
Sec. 1
Monetary judgment against the EXACAD. No notice of claims filed. The Court allows revival of
monetary judgment by reason of no notice because ang bagal ng usad ng settlement
proceedings.
What if there is unreasonable delay in appointment of EXECAD?
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- In case of delay, the court may allow to claim against the heirs of the deceased. Basis:
Rule 3
What if there are no estate proceedings yet?
- In this case, the legal representatives are heirs, and hence case may be filed against
them.
Unlawful detainer, recovery for payment rentals, where it should be filed?
- Rule 87. Main action is recovery of property under Rule 87, the collection of unpaid
rentals are just incidental.
Quieting of title, can be filed under Rule 87?
- Yes. it is an action for recovery of real property.
Legal separation, can be filed under Rule 87?
- No. Filed it against the spouse. Upon death of spouse, the marriage is dissolved, hence
the action would not survive the death of the decedent.
Section 2
Since it is the EXECAD who will bring the action, the heirs do not have legal standing to file the
recovery of property. Exceptions:
1. No EXECAD appointed;
2. If there are appointed EXECAD, but the EXECAD is unwilling to bring the action;
3. If the EXECAD is already appointed, but the EXECAD would be made defendant in the case;
Deceased have paramour, and had children thereon. After death of deceased, the heirs in the
paramour executed extrajudicial settlement, prejudicial to the children. When the legitimate
children discovered, they filed for annulment of the extrajudicial settlement. No EXECAD
appointed. Pwede?
- Yes. Pending the filing of administration proceedings, heirs have legal standing. Basis:
Art. 777, CC. Rights are transmitted at the time of the death of the decedent.
Deceased is co-owner of undivided property with 2 other co-owners. 8 years after death of
deceased, the other co-owner sold undivided share to third person. Can administrator of
deceased co-owner exercise legal redemption?
- No. The administrator to possession of real property, and only insofar as administration.
The right of redemption is actually vested in the heirs in their individual capacity and not
to administration. The heirs shall only inherit what was at the time of death, the opening
of succession. However, there is no right of redemption at the time of death, the sale made
8 years after death.
Before her death, X made revocation of donation. X made GPA authorizing her attorney in fact to
administer for benefit of X. Subsequently, X death. Then, heirs of X sought annulment of
revocation of donation. Summons to attorney in fact
- No service of summons. Attorney in fact is only granted GPA. Summons can only be
served to EXECAD. GPA terminated upon death of the principal.
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Can the lawyer represent the estate because he was the lawyer during life?
- No. Dead client cannot be represented by the lawyer.
Section 3
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.
GR: Heir may not sue until his share is assigned.
Pendency of estate proceedings of the deceased. Deceased, father, has 2 heirs who filed action
for annulment of sale and nullification of title because the EXECAD who is the mother transferred
property who are conjugal property. The reconveyance case was dismissed because of the
pendency of the estate proceedings. Is it correct?
Is it correct that the probate court has no jurisdiction to rule on ownership?
- Yes, it has no right to rule on ownership, but only on provisional matters.
Sec. 3, Rule 87 optional? GR: EXECAD only to file, subject to exception
Section 6
Examination of documents believed to be in another person’s possession.
This can be allowed pursuant to Sec. 6 Rule 87 based on the administrator’s belief that the person
requested has in his possession the documents. So magpapa-subpoena kayo dyan. The purpose
of this examination is to illicit information and to secure evidence., para siyang discovery measure.
This is a procedure that is only inquisitorial in nature. So when you are asking for this examination,
the court will not really rule on whether it is embezzled or concealed, it’s just inquisitorial.
Interested parties may file an application for examination. If the court denies the application, is it
appealable?
- No. It is only interlocutory, and subject to discretion of the court. Hence not appealable.
In the same way, in this examination proceedings, the court will not yet rule on whether it is
concealed or embezzled. This procedure is the same as in Sec. 7. So yung Sec. 7 na examination
ng accounting ng administrator, ganun din yan, inquisitorial in nature, wala pa yang ruling ng court
on that matter.
Section 7
The court can cite the person entrusted to be examined and to render account. If refused, may
be cited for contempt until it complied.
Take note that Sec. 7 only contemplates property that was entrusted by the executor of the
administrator with respect to property that forms part of the estate. So as I said, this procedure
under Sec. 7 is the same as Sec. 6, it is an examination in nature and it is a fact finding inquiry. It
is intended to illicit information relative to the state proceedings. So the court is without authority
to render a final ruling on the issue of ownership because of the limited jurisdiction of the probate
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court. So if you want to bring a separate action then that would be the subject of a separate action
to recover ownership of property.
Section 8
Presupposes that before the letters administration or letters of administration or letters
testamentary are issued, there is a person who embezzles any property, money, goods or chattels
of the deceased.
Liability to person who sold, embezzled or alienated is double the value; determination of the
liability is in a separate civil action for possession; the probate court only has limited jurisdiction
to rule on ownership
Section 9
If there is property that is fraudulently conveyed by the deceased himself, it may be recovered.
How can it be recovered? The executor or administrator will prosecute and commence the action.
If there is a deficiency in the assets in the hands of the executor or administrator for the payment
of debts, then during the lifetime of the deceased, he conveyed real or personal property or an
interest therein or a debt or a credit and the purpose of which is to defraud the creditors or to
avoid any right debt or duty to the creditors or they conveyed the property in such a way that
under the law it is a prohibited conveyance in such a way that it would be void as against the
creditors or if that conveyance would have been a subject of an attachment during the lifetime of
the deceased.
So effectively, it is for the benefit of the creditors why he want to recover the property to form part
of the estate again.
If you look at the rules, sabi ng rules, the executor or administrator will not be bound to commence
the action unless the creditors will pay for the cost and expense. Kasi magfa-file ng kaso yang
executor or administrator to recover the property and since it is for the benefit of the creditors,
dapat yung creditors, iadvance nila yung cost for those cases or if they don’t advance the cost,
they should give security as the court may deem equitable.
Under this section, a conveyance by a debtor of an attachable property without consideration, so
merong tinransfer yung debtor-deceased walang consideration and walang provisions for
payment, so obviously it can be seen as fraud of the creditors kasi nilipat mo yung property mo.
It’s not a sale, nilipat mo lang siya so it’s is not within the reach of your creditors, so pwede yan
ma-recover.
In the Sec. 9 provision, the one who will bring the action for the benefit of the creditors is the
executor or administrator. Magaadvance lang ng cost or magbibigay lang ng security yung
creditor but the one who will bring an action is the executor or administrator
Section 10
Contemplates a situation where the creditor may bring an action. Situations in Sec. 9 but EXECAD
does not file the action. Creditor then may bring the case.
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So when may the creditor bring the action? Kasi sabi natin sa Sec. 9, it is the executor or
administrator that brings the action. It contemplates the situation in Sec. 9, however, the executor
or the administrator does not commence the action. Ayaw niya i-commence, nag bigay ka na
ng security, nagbigay ka na ng advance for cost, there is conveyance in fraud of creditors pero
ayaw i-file ng executor or administrator yung kaso, then the creditor may bring the case.
Can the creditor ask for permission of the court?
- Yes. It is clear under the provision, kailangan is with the permission of the curt. The
creditor will stands in the place of administrator. Para syang EXECAD with the approval
of the court.
The creditor shall also post a bond in an amount that will indemnify the EXECAD for the cost and
expenses. Kasi diba sinabi natin sa Section 8, yung creditor dapat yung mag-advance ng costs,
so ganun din ditto, so may bond to shoulder for the costs.
The creditor shall have a lien on the judgment. Kasi diba yung creditor yung nag-advance ng
costs, so kung nag-pray siya for reimbursement ng costs and the court grants it then the creditor
will pay the estate and at the same time the creditor is reimbursed by the debtor or the person to
whom the unlawful conveyance was made.
What if the conveyance was made in fraud of creditors in favor of EXECAD?
- Creditor may bring action against EXECAD but in this instance, but bond and permission
of the court is not necessary. Since ang kakasuhan mo ay ang executor or administrator
kasi sa kanya yung conveyance made so the creditor will file the case in his name.
General Rule: if there is a conveyance or transfer of property during the lifetime of the deceased
in fraud of the creditors, the first one who will bring the action is the executor or administrator and
the creditor should advance the costs, that is Sec. 8. Sec. 9 the first part says, if the executor
or administrator does not bring the action, then the creditor can do it with the permission of
the court and with posting of the bond, provided that the person to whom the conveyance was
made is not the executor or administrator, hindi sa executor or administrator tinransfer.
The third situation is that there was a conveyance in fraud of creditors and the conveyance was
made to the executor or administrator during the lifetime of the deceased, in such instance there
is no need for approval of the court and there is no need for posting of bond, the creditor can file
the case in his name
Section 1
If the estate has sufficient assets to pay the debts, then the executor or administrator shall pay
the debt within the limited time for that purpose.
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Wala tayong problema if the estate has sufficient assets to pay for all the debts. So magfa-file ka
ng money claims, after ng money claims, the court will hear the claims and then sinabi na natin
that there should be supporting affidavits and then the court after hearing will ascertain the amount
of the money claims and if the assets are sufficient to pay the debts, then the executor or
administrator will pay the debts within the limited time for that purpose.
Section 2
If the testator makes a provision in his will, kunwari sabi ng testator “this land covered by TCT
NO. 123 yung ipang-babayad ng lahat ng obligations.” So naka-earmark yung provision sa will ng
testator ung alin yung ipangbabayad ng debt.
If the estator makes provision for payment for debts, the provision is what will be followed. Paid
in accordance with the provisions of the will.
But if the provision made in the will is not sufficient to pay for the obligation, then whatever property
that is not disposed by will, yun yung iaappropriate for the payment of the obligation. So kunwari
merong siyang isa pang land, hindi siya naka-appropriate in the will tapos kulang yung
appropriated in the will, yun yung ipangsasagot. So as a rule, susundin natin yung nasa will, ‘pag
kulang, kung ano yung walang provison in the property, yun yung ipangbabayad natin ng kulang.
Section 3
Property not disposed of by will
Just like in writ of execution, ang uunhain is personal property for payment, that is in Sec. 3. But
take note of the provision in Sec. 3. Ang sabi is “the property that is not disposed of by will.” So if
that personal property is disposed in the will, hindi yan pwedeng payment for expenses.
If personal property is not sufficient or if the sale of that personal property is to the detriment of
the estate, hindi ipambabayad ng debts ang personal property. Sale of the real estate but there
needs to be authority of the court.
Let us say that there is a probate court and there are funds of the estate in the hands of an heir,
sabi ng court “hoy bayaran mo muna yung utang, gamitin mo yung pera in your hands”, sinabi
niya sa heir. Sabi ng heir, “hindi pwede kasi dapat ibenta na lang yung real property.” Is this
correct?
- No. Money is personal property, and ang uunahin mo is the personal property. It is more
advantageous na ipangbayad nya muna yung cash bago magbenta ng real property.
Section 4
Estate to be retained to meet contingent claims
Not automatic to pay contingent claims. So if the court determines that that contingent claim is
valid, ia-allow ng court na i-retain ng executor or administrator yung sufficient to pay for the
contingent claim when it becomes absolute.
If insolvent, in proportion to dividend of other creditors. You learned in credit transactions na kapag
insolvent yan, you will not really get paid the amount of your obligation; it depends on the
preference of credits, and then dun sa common, in proportion yan.
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Section 5
If contingent claims becomes absolute and previously presented in court within 2 years, or within
2 years presented, the court will allow the claim as long as not disputed.
Dalawa ang kino-contemplate dito, may contingent claim siya it was presented in court and it
becomes absolute within two years, or within that two years nag-present ng claims, pwede i-allow
yan ng court as long as it not disputed by the executor or administrator. But if it is disputed, it may
be allowed or disallowed by the court as the facts may warrant. Pag if it is allowed, then it will
receive the same payment as the other creditors.
If exceeding 2 years, court may still allow. If allowed, then the assets that are in the hands of
EXECAD which has not been exhausted ang ipangbabayad. If already distributed, pwedeng
ipambayad ang distributed na as far as the debt is concerned.
Note: this is the instance where the creditor may file against the heirs, but the liability is only
insofar as what the heirs received.
Pero kapag na-distribute na yung assets to the heirs, pwedeng ipangbayad yung na-distribute na
in so far as the debt is concerned. So the distributes or the heirs who already received their parts
will be liable for the debt but only in proportion to the estate that they received. In other words,
they cannot be liable more than the estate they received. Take note that this is the only instance
where the creditor can file an action against the distributee of the debtor’s asset. Kapag nadistribute na yung asset to the heir, that is the time na pwede sila dumirecho sa heir not the
executor or administrator but the liability of the heir is only insofar as the estate that was distributed
to that heir.
If the court did not allow the claim, hindi babayaran. So kailangan presented within the two years
or beyond the two years AND allowed by the court.
Section 6
If the devisees, legatees or heirs have actually entered already into the possession of the estate
or a part of the estate before the settlement of obligations. Hawak na nila yung property, they are
already in possession pero hindi pa nababayaran yung obligations, and then the obligations
became due, the settlement court may set the claim for hearing, then determine the liability of
each heirs. This is an instance where writ of execution may lie to enforce payment of the debts.
Note: this contemplate DEBTS. In case of claim of legacy, kunwari you are claiming that you are
entitled to a legacy, can you use execution para mabigay yung share mo as a legatee?
- This does not apply. The probate court is not supposed to order a writ of execution, it
generally does not render a judgment that is subject of execution.
Section 7
Sinabi natin na walang problem kung may pera yung estate in so far as payment, pero marami
tayong problema pag konti ang pera kasi pag konting pera pero hindi enough to pay for the
obligation, pwedeng insolvent yan diba? And ano ang mangyayari dyan?
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If estate is insolvent, magaapply Arts. 1059, 2239-2251 on preference of credits. Including in
preference of credits are administration expenses. In expenses of administration, the one who
will claim this is the executor or administrator alone.
Section 8
No assets to pay credits on one class of creditors after payment to those in preference, kasi alam
nyo na yung rules on preference of credits, diba? Determine kung saang class sila magfall under.
So if there are no assets sufficient to pay the credits of one class after the payment of those
entitled to preference over that class, proportion yan, in proportion to the claim.
Section 9
If you have an administration in the Philippines of an estate of one who is, at the time of his death,
not an Administration in the Philippines of an estate of one who is, at the time of his death, not an
inhabitant of the Philippines and was insolvent, but the estate is found in the PH, Section 9 will
apply. If the estate is in the Philippines, as far as practicable, his estate will be disposed of so that
his creditors will be paid in proportion to their shares.
Section 10
How are claims proved?
If the court has jurisdiction over that settlement of estates in Philippines and there are also claims
that have been proved in another country. This means that there are settlement proceedings in
that foreign country, and he is insolvent at the time of his death, and not inhabitant of the
Philippines.
It is required that before the court considers the claims proved in the foreign country that it is
shown that the executor or administrator had knowledge or opportunity to oppose those claims in
the foreign country. If the executor or administrator had the knowledge of or opportunity to oppose
or participate, then the court will get a certified list of claims in that foreign country. It will, then, be
added to the claims here in PH, so that we can see if he is really insolvent, or if his assets are
sufficient enough to pay for it. It can also be distributed to the claims proven in the foreign country.
It can also be distributed to the claims proven in the foreign country. We have to take note the
last provision of this Section—we want reciprocity. This means that if we are going to allocate
payment of claims proven in the foreign country, they have to do the same for us. They have to
do the same to the creditors residing in the Philippines. Otherwise, we will have to ignore them.
Section 11
The court will order the payment and distribution of assets that are received by the executor or
administrator for the purpose of payment of the creditors. The executor and administrator will not
make a move, unless the court makes an order of payment. So, basically, the courts will approve
the claims and then order the payment of the claims.
Section 12
What if the court makes an order for payment of claims but the order has been appealed?
The court may suspend the payment of claims, or the court may proceed with the distribution to
the creditors, but it is required that there will be a certain amount of money to be left in the hands
of the executor or administrator, which is sufficient to cover the appeal. It is because the appeal
can cover only a portion of the claims, and not all the claims.
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The court may order then to pay all claims that are not appealed already. Once all claim are
settled, the court should order payment of the claim.
Example: There are five claims, and there is an Order issued for you to pay the five claims. You
appealed only the first claim, so the other four claims may be continuously paid, and you will only
keep one claim to cover for it.
Example: There are five claims. Only four claims were approved, and the other claim was denied.
You appealed the denial of one claim. The court may order the four claims to be paid already,
then, the court will make provision for the one claim which was denied in case there would be a
reversal on appeal. It has to be paid by the executor or administrator. Once it is finally settled—
which means that there is a reversed Order—the court will order the executor to pay. It should be
in accordance with preference of credits.
Section 13
It is possible for it not to be distributed at the same time. There can be several orders from the
court for the distribution of payments of debts. The courts will just make orders from time to time
for the distribution of assets.
If court makes order for distribution, then payment should be in accordance with the order of the
court. EXECAD no discretion.
Section 15
Time to pay debt and legacies – should not exceed one year from issuance of letters.
XCP: can be extended, upon application of EXECAD and notice to interested persons. Each
extension should not exceed 6 months and whole period should not exceed 2 years.
Jurisprudence says that the period is only directory. However, the court should exert effort to
close the case within 12 months after it is presented. If prolonged, it is not the policy espoused by
the rules. The policy of the
Section 16
Pag may namatay na EXECAD, then new one is appointed, it is possible that payment of debts
may extend beyond period of the previous executor or administrator and should not exceed 6
months at the time, beyond the time the court would have allowed to original EXECAD. There
must also be notice and hearing regarding extension.
If we are going to sell a personal property for payment of obligations, we need an approval from
the court. So, the executor or administrator should make an application with the court. It is also
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required to give notice to the heirs and to the persons interested. Then, once you have notice and
hearing, the court may decide to sell a whole or a part of the personal estate, if it appears that it
is necessary for the payment of the debts or expenses of administration.
Pag magbebenta ng property for satisfaction of obligations, court approval needed by application
and notice to all parties interested.
The executor and administrator then cannot sell on his own, even if legitimate expenses. If the
probate court approves this, that is the only time that he will execute a Deed of Sale. If the executor
or administrator executed a Deed of Sale to sell the property for payment of debt or expenses,
even if it is a legitimate payment of expenses or debts, but it is without approval of the court, it is
not a valid Deed of Sale. The executor or administrator has, then, no authority to enter into that
Deed of Sale without the court’s approval.
Sale is not an act of administration, but act of ownership (inconsistent with duties of EXECAD).
Mortgage needs approval from the court.
If the personal property is not sufficient to pay the debts, or if the sale of the personal property
would be prejudicial for the heirs, or no sufficient property for payment of obligations, some of
personal property could be sold. If some cannot be sold, may be mortgaged. What is needed is
the court’s approval.
Section 7
If natalo sa case ang estate, and estate is a debtor, can there be execution in that money claim
against the estate?
- No. File it under Sec. 5, Rule 86. There could not be sale by the sheriff. So, it is not
allowed for there to be an execution by the sheriff to sell the property belonging to the
estate. It is not within the jurisdiction of the sheriff. Only the probate court could order the
sale of the property.
This section also provides that in order to enter into a mortgage, there is a need for approval by
the court. Under this Section, you will see that these are the procedural requirements in order for
the court to grant authority to sell, mortgage, or otherwise, encumber the property of the estate.
This procedure will fall under the probate court. It is the probate court that has jurisdiction to allow
the sale, mortgage or encumber the property. There must a petition by the executor or
administrator. In the petition, the value of the property must be stated, and the situation and other
circumstances that will show why the sale, mortgage and other encumbrance are necessary or
beneficial.
Not only the court approval is required, notice and hearing is required. If notice and hearing is not
done, the sale is a nullity; the authority to sell is null and void.
The court also may require the executor or administrator to give additional bond. Once the
requirements of petition, notice, hearing and bond (if necessary) have been complied with, the
court may now authorize the sale. All of these must be present. If the court authorized the sale
despite the absence of one of these, the action of the court is considered to be erroneous.
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Section 7(d)
The sale could be a public or private sale, depending on what would be most beneficial. If public
sale, there should be notice. Why? The sale should be beneficial to the estate and for that you
need as many bidders as possible. However, if it will be an auction sale, there has to be a notice
in accordance with sale by auction.
The deed of sale should be approved by the court.
Why do you need to give notice?
Notice is important in auction sale to have a reasonable price. To obtain this reasonable price,
you would want to have as many participants as possible because they would bid for the price,
and the highest bidder will win. Afterwards, they will report to the Registry of Deeds of the place
where the property is situated. They will register with the Registry of Deeds the certified true copy
of the order of the court with the Deed of Sale or with the deed entered into by the executor or
administrator. So, that shows that there is approval of the court, and that pursuant to such
approval, the executor or administrator sold or mortgaged the property. The Deed of Sale should
also be approved by the court.
What if conditional sale? Can there be a conditional sale approved by the court?
- Yes, it is within the jurisdiction of the court to approve conditional sale if beneficial to the
estate.
What if the Deed of Sale says that it is subject to the approval of the court? Is it a valid condition?
- Yes. It is a valid condition because, obviously, there can be no authority to sell without
the approval of the court.
Can the heirs sell a share in the estate?
- Yes, you can sell a share, but not a specific portion. Under Article 777 of the Civil Code,
it provides that there is transmission of rights at the opening of succession by the death.
If the heir wants to sell his share, but the share belongs to heir, but not a specific portion
or property until it has been given to the heir.
Example: He is entitled to the 20% of the net estate pursuant to the will. The heir can transfer
because the share belongs to the heir, but the heir cannot sell a specific portion of the estate,
unless it has already been distributed. This is similar to the rule on co-ownership. If there are 3
co-owners, can the co-owner sell his 20% share?
- Yes. Can the co-owner point to a specific portion of the property? Not yet, because that
is inchoate right. The same way here in settlement of estate—the specific property without
the approval of the court can be sold by the executor or administrator after complying with
Section 7. A share or the interest of an heir, because that belongs to him, he can sell it
even without the approval of the court.
Is the provision 2, 4, and 7 mandatory?
- Yes; it should be followed, otherwise the sale shall be null and void. It will render void
not only the contract, but also the authority of the court which authorized the sale.
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Sec. 2, 4, 8, Rule 89, Difference
Sec. 2 – specifically requires the EXECAD to file application for authority to sell, mortgage,
encumber, for payment of debts;
Sec. 4 – authority to sell real or personal for the benefit of heirs, devisees, or legatees, or person
interested. It is not limited for the purpose of paying debts.
Sec. 8 – application to authorize sell under a contract the deceased entered into to deed a
property during his lifetime. Does not specify who will file an application. The one who will file is
the one who will stand benefitted or injured by the judgment.
Example: The deceased entered into a contract to sell real property during his lifetime,
then, he died without paying the full purchase price. It was only fully paid after the death
of the deceased. In that instance, the next step after the contract to sell is to execute a
Deed of Absolute Sale because there is already a full payment. This is what is
contemplated in Section 8. Here, the court will authorize the conveyance because there
is already a contract entered into during the lifetime of the deceased
Section 3
How to prevent the sale?
- If a person interested will give a bond, amount fixed by the court. Bond is conditioned on
the payment of debts, devisees, or legacies and security of creditor and EXECAD. You
cannot stop the sale, mortgage or encumbrance, without having an interest and without
giving a bond.
Example: The executor asks for the authority to sell property for payment of taxes, which was
granted by the court. The property was sold to X. There was no opposition on the part of the
creditors and the heirs. After the property was sold to X, the taxes were paid, and some of the
proceeds were also used for the necessary repairs for the residence of the heirs. A third person,
who is not an heir or a creditor, filed for an opposition in the approval of the sale claiming that he
could have purchased the property at a higher price. May the third person, who is not a creditor
or an heir, oppose the sale, on the ground that he offered a higher price?
- No, he cannot opposed because he is not an interested party. It is settled that for a
person to intervene, he must have an interest. Even if he will try to offer a bond, he is still
not an interested party.
Court already approved the sale. Sale was already made, tax paid for, then proceeds were
already used for necessary expenses. Can the EXECAD move to withdraw the sale?
- No. Sale is consummated and proceeds used for necessary expenses; they already
benefitted from the proceeds of the sale for the payment of necessary expenses.
Section 4
Sale beneficial to heirs, devisees, legatees even if not necessarily for payment of debts. There
needs approval of the court. Without court approval, the sale is not valid.
Section 5
Sale of personal estate or mortgage of real estate when it is not necessary to pay the debts but it
appears from the records in another country that the obligation of the deceased in other country.
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Court may approve sale of property for payment of debts in another country
Section 6
The court may authorize the executor or administrator to sell, mortgage or encumber real estate
that is acquired by the executor or administrator on execution or foreclosure sale.
What does this mean? The EXECAD won in a case, where the executor or administrator
represents the deceased as a creditor.
He won as the highest bidder in a foreclosure or he won to recover the property executed upon.
So, these winnings may be authorized to be sold because if is part of the estate—it forms part of
the property. Those obtained by execution or foreclosure may be sold for purposes in Secs 2,4,7
Section 8
If deceased during his lifetime entered contract for conveyance or deed property or interest
therein, it is binding. Persons stand to be benefitted or prejudiced may file application. The one
who will execute the deed is EXECAD or the clerk of court. Before conveyed, there should be
application and notice to all interested persons. Notice is personal or mail or any means the court
deems appropriate.
Example: During the lifetime of Mr. X, he said that “I am the potential seller. I will enter into a
contract to sell over this car payable in 10 annual installments of P100,000 per year. Buyer paid
for 5 years P100,000, but eventually died. After the death of the potential seller, the buyer
continuously paid to the executor and completed the 10 annual installments. The buyer may apply
to the probate court to have a Deed of Sale, and the one who will execute it is the executor or
administrator. If the executor or administrator refuses, it can be executed by the clerk of court.
That will be sufficient to convey the property of the deceased. However, before conveyance of
this property, there must be application and notice to all the interested persons.
How do you give notice? As provided for by the Rules, it can be personally or by mail, and such
further notice as the court may deem proper. The court may add publication notice. However, the
conveyance will not be allowed if the asset is in the hand of executor or administrator, and it would
prevent the creditors from receiving payment of their debts. There must be notice to all heirs and
interested parties for application approval of conveyance of properties. If there is no notice, it will
render the conveyance void, as ruled by the SC. Essentially, if it is conveyance of property
belonging to the estate, it is not just court approval—you need notice and hearing. Why? Because
it is possible for the rights of the heirs or creditor to be prejudiced by that conveyance. You need
to give an opportunity for them to be heard.
In relation to PD 1529 on Dealings by Administrator Subject to Court Approval
Relate to PD 1529, Sec. 88 – the executor or administrator may alienate registered land belonging
to estate or any interested heir, but only upon approval of the court, obtained in accordance to
the Rules of Court. (this rule)
If court approved the sale, then registered, can the court sell the property to another person?
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- No, upon approval by the court and consummation of the sale, the property transferred
to another person, already ceasing to belong to the estate because of that conveyance.
Hindi na pwede ulitin ang sale to another because the probate court has no jurisdiction
anymore.
Under Sec. 8, is it only the EXECAD authorized to apply for the sale?
- No. Not only the EXECAD who is authorized to apply for sale. Difference between Secs.
2 and 8 are clear. In Section 2, executor or administrator are the only ones who are
allowed to apply. On the other hand, in Section 8, it does not mention—whoever will be
benefitted or who is interested can make that application.
Section 9
Deals with conveyance of the property held by the deceased in trust for another person.
Notice required, and then the property shall be returned to the trustor. It does not belong to the
estate.
Section 1
The court will order for payments of debts, expenses, and taxes. After payment of debts, there
should be application for distribution of the estate. Then there should be notice and hearing. The
court shall determine and order how to distribute and partition the assets if there is a residue.
After payment, it will be distributed to the heirs.
As to the issue as to who are the heirs, then the court can hear this controversy, and the probate
court shall decide on the issue.
Can there be distribution before payment of debts or obligations?
- Yes, so long as there is payment of bond conditioned on payment of the debts or
obligations.
Even if there are no debt, and tax has not been paid, can there be distribution?
- No. Unless there is a bond conditioned on payment thereto.
Claim is time-barred and no good cause shown for the delay for filing of the claim. Can you tell
the court that the distribution is not allowed because you still have an outstanding claim?
- No, because that claim is already time-barred. Even if it is an outstanding claim, but it is
already time-barred, there can already be a distribution.
Can there be partial distribution?
- Yes. Provided there be compliance with conditions:
1. Obligations have been paid; or
2. There is bond.
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There is probate of will. Then there is notice that the properties are distributed without payment
of taxes. Is it proper?
- No, no distribution without payment of taxes.
PD 1529, Sec. 92 – It is only upon issuance of the final distribution of the estate or in anticipation
for final distribution can new title be issued in favor of the distributees.
“Anticipation of final distribution” – may be recognized by RD;
Property sold at an auction. Heir redeemed the property.
May the heir redeem the property?
- May be redeemed by successor of interested, in accordance with Art. 777, NCC.
To redeemed, is there need for court approval?
- No need.
Does it matter if the court at the time there is no order of distribution?
- No, it is the right of the heir as a successor to redeem.
Can the heir who redeemed the property transfer title in the name of the heir?
- No. To allow that, is to allow distribution of property without approval by the court.
The property is part of the estate. The remedy of the heir is to ask for
reimbursement.
In settlement of estate proceedings, the distribution can only be made (1) after debts, expenses,
allowances and taxes have been paid; or (2) before the payment, provided that the distributees
give a bond in a sum fixed by the court and conditioned upon the payment of such obligations.
Sec. 2
Contemplates collation. Conveyances during the lifetime of the deceased will be collated to the
estate.
“may”, it contemplates that the probate court has jurisdiction over collation.
Art. 1061, CC – Every compulsory heirs that succeeds must bring into the mass of the estate what
has been received
Determination of advancement of the legitime is only on the probate court.
If a motion that is filed for collation but the body of the motion provides for inclusion for inventory.
Is the order in that motion appealable?
- No. It is not final decision.
Section 3
By whom expenses paid
Section 4
Certified true copy of final orders or judgments relating to the sale and irerecord natin sa Registry
of Deeds.
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What is escheat? It is a special proceeding where the personal or real property of the deceased
becomes property of the State upon his death without leaving any will or legal heir. It is
commenced by filing of a petition.
An escheat proceeding is an action in rem. Includes dormant bank accounts. Hindi po ito Bank
Secrecy Law; Unclaimed Balances Act ang titignan ninyo dyan.
Who files the petition?
- When person dies intestate but has properties, leaves no heirs entitled to the same.
Includes testate pero wala na naiwang heirs. SolGen in behalf of Republic who files
petition in the RTC.
Unclaimed Balances Act
Kapag Unclaimed balances Act naman, tingnan niyo yung Presidential decree diyan, you need to
know first the definition. What do you mean by unclaimed balances? Eto yung mga credits,
deposits, money, bullions, security or evidence of indebtedness, etc. remain dormant 10 years
or more. Deposited to Treasurer of the Philippines, for the use of the State or the National
Government.
There has to be a statement under oath of the managing officer ng lahat ng credits or deposits ng
persons known to be dead or hindi mo alam kung dead pero wala nang deposit or withdrawal,
meaning dormant na siya for 10 years or more. Alphabetical order daw dapat, tapos you will find
there yung requirements that must be stated in alphabetical order yung name, amount, date kung
kelan nagkalast transaction, yung interest. Tapos you need to also post this sworn statement in
conspicuous places within the premises of the bank and at least 60 days from filing. And then,
ifoforward niyo siya sa treasurer, yung treasurer iinform naman yung Solicitor General para sila
yung magfa-file ng case.
Kapag there is refusal to make that sworn statement, there is a liability here. If they make that
deposit to the Treasurer in accordance with the law, they are not liable because they are only
complying with the law.
And then, the Solicitor General, once informed siya of the unclaimed balances, magfa-file siya ng
case in accordance with the Rule natin but take note na magkaiba yung notice requirement sa
Rules of Court vs. Unclaimed Balances Act. Dito sa Unclaimed Balances Act, yung copy of the
complaint or summons kailangan iserve niyo yan very specific siya to the president, cashier or
managing officer of each bank.
Ang tanong, kailangan mo bang i-implead yung Bangko?
- It is a real party in interest and to serve summons on them, you need to serve it either to
the president, cashier or managing officer.
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Is it enough that you serve them summons under the Unclaimed Balances Act?
- No. According to the law, you serve them summons AND there has to be publication in
a newspaper of general circulation and in the locality of the bank.
Tapos they will be required to appear within 60 days after the first publication and they have to
show cause dun sa hearing why it should not be deposited to the Treasury and they will be notified
that if they do not appear it shall be cause for the government to obtain the relief that they are
praying for.
Insofar as the banks are concerned, summons are delivered on the president, cashier and
managing officer. Do you need to notify the depositor or other claimants of the unclaimed
balance?
- Yes. How do you notify them? Under the Unclaimed Balances Act, they are notified by
the publication.
So yung service ng summons, that is for the bank, but in so far as the depositors and other
claimants it is by publication. Kaya yung requirement mo is service of summons and
publication. Yung publication mo is to acquire jurisdiction over the persons of other
claimants and depositors. Peculiar to sa Unclaimed Balances Act.
Escheat, Proceedings
There will be an order of the court setting the time and date for hearing and the date of the hearing
should be not more than 6 months from the entry of the order and then meron tayong publication
once a week, take note, for 6 successive weeks.
May isang kaso ang tanong, pwede bang 3 successive weeks lang? No, 6 nga e.
So you need to comply with all of these requirements under the rules before the property can be
escheated, otherwise the court does not have jurisdiction to take cognizance of the case and
escheat.
The court will hear the case, then magkakaroon ng judgment. The personal estate shall be
assigned to municipality where the decedent last resided; real estate, to the municipality or city in
which the same is situated. If the deceased never resided in the Philippines, the whole estate
may be assigned to the respective municipalities where they are located and it will be for the
benefit of public schools, public charitable institutions and centers in such municipalities or cities.
Pwede bang ilagay yung mag property na yan, imbis na itransfer ilagay in a permanent trust?
- Yes, upon motion by an interest property tapos yung income na lang yung ilalagay niyo
sa municipality.
Can there be claimant in escheat proceedings?
- Yes, but the burden must be on the claimant; must establish title or right to the same.
Meron syang certificate of title proving na sa kanya yung property. Pwede bang magkaroon ng
demurrer to evidence in escheat proceedings?
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- No. But in case of lack of cause of action, may file motion to dismiss.
Who are interested parties in escheat proceedings?
- State; any person who claims direct right or interest may claim (e.g. claims to have
exclusive ownership, donee, heir)
If meron kang devisee, heir, legatee, widow or widower, pwede syang magfile within 5 year
prescriptive period for claim in escheat proceeding.
Bakit may 5-year period? Yung 5-year period daw is para magkaroon ng prescriptive period
against would-be claimants, para daw bilisan nila, hindi sila tamad mag-file ng claim kaya
nagbigay ng prescriptive period.
Pano kung maraming heirs na nag-appear tapos gusto nila idistribute sa kanila. Pwede ba yon?
- Escheat proceeding is not settlement of estate proceeding. They will need to institute
their settlement of estate if they want the properties to be distributed to all of them.
Other actions for escheat, so sinabi ko na kanina, yun ngang Unclaimed Balances Act.
Sec. 27, A.M. 03-02-05-SC
Provides that the effect of this Administrative Matter amends Rules 92-97. Pag guardianship of
incompentent, Rules of Court. Kapag minors, kahit baliw, A.M.
Take note that when we discuss Rule 92-97 in so far as guardianship is concerned, we are only
discussing incompetents, all provisions that pertain to minors, idisregard nyo sa Rules of Court
because as we will discuss later on sa guardianship of minors, the Administrative Matter amends
the Rules of Court in so far as it applies to minors.
Sec. 1
Applies to guardianship of minors.
What is a guardian?
- Under the Rules, ang guardian, this is really a trust relation. Here, the guardian acts for
another called the ward. The ward is someone that the law regards as one who is
incapable of managing his own affairs. So, the guardianship is supposed to further the
ward’s well-being. It is not for the benefit of the guardian, but for the well being of the ward.
Father and the mother are legal guardians. No petition needed anymore for father and mother to
become legal guardians. No court appointment necessary because by law, parents are guardians
of minor.
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But if became competent upon reaching age of majority, parents required to file petition for
appointment of guardianship.
The purpose of guardianship is for the care and custody of the ward and also to render assistance
as the ward may require and also to preserve the property of the ward.
So when you say care and custody, it also includes immediate care, control and for those that the
ward cannot be responsible for. Parang similar din sya sa locus parentis.
Rule 92 is only for incompetents. All provisions pertaining to minors, idisregard nyo sa Rules of
Court. As we will discuss later on, the administrative matter amends the guardianship as to the
minors.
Jurisdiction
If it is for incompetents under the Rules of Court – RTC;
If it is for minors, Family Court.
The venue under Rule 92 is you file it in the place of residence of the incompetent but if the
incompetent is residing in a foreign country, then it is where the property which is the subject of
guardianship is situated.
When we say incompetent, ito yong mga insane, suffering from civil interdiction, lepers, prodigals,
unable to read and write, weakness of mind, etc.
Even if a person is of age, he can still fall under guardianship. If insane, of age, dito tayo sa Rules
of Court. If insane, not of age, AM.
How does the court determine incompetency?
- We relate this to the Rules on Evidence. Under the Rules of Evidence, an expert opinion
is not required in order for you to determine the sanity of person, the mental sanity. An
ordinary witness is competent to give an opinion on the mental sanity of a person of whom
he is sufficiently acquainted.
So if you will remember under evidence, you need to lay the predicate before a person can give
an opinion. As a general rule, opinion is not allowed unless it falls under the exceptions for
ordinary witness and one of the exceptions in addition to the handwriting is also the mental sanity.
So mental sanity but you lay the predicate that the person testifying is sufficiently acquainted with
the person whose sanity is in question.
Section 3
Contemplates transfer of venue, if there’s a change in residence the incompetent acquired a
property as where he changes residence, they can just transfer the proceedings. So you do not
need to refile and pay additional docket fees, it’s just a transfer of venue.
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Who may petition for appointment of a guardian if the ward is resident of the Philippines?
- It can be any relative of the supposed ward, even a friend, or a person on behalf of that
resident incompetent who has no lawful guardian. So if may guardian na sya, hindi mo na
ipapaappoint ng guardian.
- If there’s already a guardian appointed judicially by the court and you want to replace,
the proper procedure is not for the appointment but for a motion to the court for the
removal of that present guardian for grounds provided by the rules and so that when
it is replaced then the court can will appoint a new one. So it is in the proceeding where
the guardianship was originally filed if you want to replace, but if there is no guardian yet
then you institute a petition by filing a petition.
This is also another example of a special proceeding. Now, the normal case title we usually have
is petitioner vs. respondent – that usual in an ordinary case. But in guardianship, wala syang
ganong parties usually parang In Re: Guardianship of (name of the alleged incompetent),
there are no named respondents in guardianship. Then ilalagay kung sino yong petitioner. Hindi
sya versus, no named respondents.
Section 2
What should be contained in the petition?
You have to allege matters provided in Secs. 2(a) to (e); take note that the petition has to be
verified but if there is defect in the verification, it will not render void the letter of guardianship
issued, similar to letters administration.
Ano ang jurisdictional facts mo?
- You have to allege the residence of the incompetent, that the factual allegations that
constitute proof that the person is indeed an incompetent and that warrants an
appointment of a guardian whether it is over the person and property or just over the
property.
After the filing of the petition, then the court will set the case for hearing. So there will be a time
and date for hearing so there will be a notice. So all of those mentioned in the petition residing in
the province should have notice, including the incompetent himself – the incompetent should also
be furnished a copy of the notice of the hearing. The Court can also direct such general and such
other special notice to be given.
It bears emphasizing that jurisprudence provides that service of notice of hearing is jurisdictional.
Without that notice, the court does not acquire jurisdiction to appoint guardian.
Sections 2 and 3 of Rule 93 provides that you need to include the names, ages and residences
of relatives of the incompetent and those that have the incompetent in his care. So the purpose
of this is that those residing with the incompetent in the province can also be notified of the time
and place of the hearing.
Based on jurisprudence there are two objectives for a petition for guardianship:
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1. For the court to determine whether or not the person is indeed incompetent. Whether or not
he does not have the capacity to decide for himself or his properties.
2. To determine who is the most qualified to be appointed as the guardian.
Do you need to give notice to the creditors of the ward?
According to Supreme Court, the Rules do not require that the creditors of the incompetent be
notified. If you look at the list, sabi you give the notice to those listed in the petition which are the
relatives, the persons residing with the incompetent, and those having him in his care. Wala don
yung creditors.
Hindi kelangan inotify ang creditors. Why? Because the presence of the creditors are not essential
to the proceedings in the appointment of guardian. Why? We go back to the two purposes. That
has nothing to do with creditors.
Section 4
Just like in settlement proceedings, for the appointment, pwedeng may mga magoppose dyan.
They can oppose the petition. They can object on the ground that the person alleged to be
incompetent is not really incompetent, or the person sought to be appointed is unsuitable.
If it is alleged by the oppositor that the person to be appointed is unsuitable, he shall include also
a prayer: either sya yung iappoint na guardian, or another suitable person yung iappoint na
guardian.
There will be a notice, then after notice, oppositors. After oppositors, there will be a hearing. And
then the parties will present their evidence. But before the parties present evidence, there should
be proof that notice, as required, were given to the persons required to be given notice. The court
cannot act in the guardianship proceedings if there is no notice to the incompetent himself.
Once they comply with the requirements for proving notice, then the court will hear evidence of
the parties, they can also present their witnesses. The incompetent should be presented in court.
Then, if the court is satisfied that the person is competent and the person sought to be appointed
as a guardian is suitable, then the court can render judgment.
But what about if the person of the incompetent is not a resident?
Pwede, because you want to have a guardian insofar as the properties, not over the
person of the non-resident. Again, if not a resident, then we institute in the proper court
where the property is situated, and in the same way, any friend, relative, or interested
person, whether in expectancy palang sya. Hindi pa actual yung interest, expectancy pa
lang, pwede rin. This is only insofar as the property; it does not include the person because
the court does not have jurisdiction since the person of the ward is in the foreign country.
Whatever judgment will be issued by the court, if there is appointment, Sec. 8 requires that it must
be served on the civil registrar where the incompetent resides, and where the property is situated.
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Just like in administration and execution, they cannot enter in their duties until they give a bond.
The refusal to give a bond is refusal to act on the appointment. Ganon din sa guardianship.
Kelangan mo munang magbigay ng bond. It is also conditional.
Just like with settlement of estate, the bond is conditioned upon several duties that you will find
under Sec. 1. The amount of the bond will be determined by the court. What are the conditions?
Just like in settlement of estate, meron ding inventory. Those that he has knowledge or come to
his knowledge. He will undertake that he will execute the management of the trust, everything for
the best interest of the ward, and to render true account, and whatever duties the court directs
the guardian to perform.
In addition to the bond, the court has discretion under Sec. 2 to require new bond to be given by
the guard. And if a new bond is given, then the sureties of the old bond will be discharged from
further liability. But this requires notice first to interested persons, and only provided that no injury
that would result in the interest of the estate.
The bond is filed with the clerk of court. In case that there is breach in any of the conditions
mentioned in Sec. 1, the bond will be answerable for that. So how do you have the bond
answerable for that? In the same proceeding, and may be in a separate action.
This is still insofar as the ward is not a minor. If the income of the property is insufficient for the
care of the ward and his family, or if the sale would benefit the ward, then a part of the property
can be sold, mortgaged, or encumbered. Tapos yung proceeds non can be used for the expenses,
can be invested. Pero before this can be done, just like in settlement proceedings, you need to
ask for the court's approval.
It is filed with the court who appointed the guardian. You set forth the facts: eto yung property,
kulang sya. Kelangan namin ibenta to para mabayaran yung expenses, or sobrang tumaas na
yung value nito, if we sell now, tataas yung value yung property, etc. You need to allege such
facts to necessitate the sale. Then, the court will not immediately act on the petition. The court
may make an order for the next of kin of the ward, and all other persons interested to appear in
the time and date that the court specified in the notice, and they will show cause why the petition
should not be granted. In other words, iiinvite nya yung mga persons interested, ano may
opposition ba kayo dito? Dapat ba hindi ibenta or okay lang? There will be a hearing. And, they
can present proof, witnesses on whether or not the sale, encumbrance, or mortgage is necessary.
The court, in its discretion, grant or refuse it.
If the court finds that it is beneficial for the ward to sell, encumber, or mortgage, then the court will
order that. And, together with the order, kelangan kasama sa order yung kung saan gagamitin
yung proceeds of the sale. Like, gamitin for the maintenance, expenses, or pwede sabihin, part
na ito iinvest. And then, it is important for the court to explain in its order and include the reason
why the sale, encumbrance, or mortgage is necessary or beneficial.
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Is it required that the sale is at a public sale? No. Just like in settlement of estate, if you have sale,
it can be public sale, or private sale. Then, the court will set the time, manner, of payment. Pwede
ring deferred payment, in the court's discretion,whatever would be beneficial to the ward.
Now, if there will be a sale, may bond pa ito. Yung original bond ng guardian yung magiging
security for the sale. Bakit kelangan ng bond? Para yung proceeds ng sale, maensure natin,
pupunta sya sa kilalagyan nya talaga. If the proceeds of the sale is used for the expenses, or
maintenance of the ward, or medical expenses, para maensure na magagamit for that purpose,
the bond stands as security. But, the judge also may require additional bond. Yung bond P100,000
pero yung proceeds P1,000,000. The court may, in its discretion, allow, or order additional bond.
Take note of this, applies whether on a minor or incompetent: once a court makes an order for
the sale, kelangan magawa nila yung sale within 1 year from the order of the court. If the sale is
not had within 1 year, hindi na pwede yung order na yon. Magaaply na ulit kayo ng bago. Basis?
Last sentence, sec. 4. No order of sale granted in pursuance to this section shall continue in force
more than 1 year after granting the same, without a sale being had. In other words,the effectivity
of the order to sell is only within 1 year from the order. If one year has lapse and no sale, you
cannot use the same authority to sell beyond 1 year. Need to apply again to the court.
The guardian cannot, on his own, decide this. It may ask the court; the court may authorize,
whatever may be for the best interest of the ward.
1. Care and custody of the ward and management of the estate.
Nakadepende yung extent ng guardianship mo on what the letters will provide. If the letters say
that over the person, over the person lang yan. Property and person, pwede rin. Property, pwede
rin. Pwedeng care or custody, or management, or pwedeng estate lang.
What do you mean by care and custody?
Guardian is authorized to have the custody of the ward. In one case, the women inherited a lot
from her father. She was brought into the new family of the father. Of age na sya. Yung new
family, tinitira lang sya sa basement, malnourished sya, niloloko sya; sa kanya yung property pero
nadissipate na nila, pinapasign sya ng kung anu-ano, hindi nakapag-aral. Nalaman ng relative sa
mother side, so nagpetition sila ng guardianship. Sabi ng Court, it falls within the definition of
competent kasi unable to care sya sa sarili nya. May sakit sya, hindi nya alam pano imanage
yung properties nya. Tapos, nagrant yung guardianship, then biglang kinuha ng half-sisters and
new wife ng father yung ward. What did the guardian do? Nagfile sya ng habeas corpus para
marecover nya yung ward. Is that proper?
Yes. Habeas corpus is a remedy for the judicial guardian. It involves all cases of illegal
confinement or detention by which the rightful custody was withheld from the one entitled thereto,
i.e., judicial and legal guardian appointed by the court. Since the guardian is duty-bound under
the law to take care of the ward, the guardian cannot take care of the ward without custody. So
habeas corpus should be granted in favor of the guardian (Hernandez v. San Juan-Santos, G.R.
No. 166470).
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Kapag non-resident naman, guardianship over the estate lang. It is insofar of the estate of the
ward that is located in the Philippines. Then, once meron ka na guardianship proceedings for the
estate of the non-resident, no other court will have jurisdiction over the case. It is the only one
court kung saan nainstitute, just like in settlement
The guardian should also not only take care and have custody of the ward, pero syempre yung
mga utang nya should be paid. Paid in the income of the real estate of the personal estate; but if
not sufficient, ibebenta or ieencumber, but again these things should happen upon approval of
the court. Lahat ng accounts ng ward, isesettle ng guardian, actions for or against the ward, the
guardian will represent and shall appear.
"Compounding" is kunwari may utang ka, icocompound mo yan, meaning ididsischarge ko yung
loan but after I receive a just share in the dividends from your estate. That exact definition in Sec.
3. But you need the approval of the court before you compound.
As a rule, it is the guardian who will represent the ward in all actions. But this is not absolute.
There are some instances where another person may be appointed for that purpose in a particular
action. In the absence of the other designation, it is guardian who will represent the ward.
Obviously wag daw maglustay-lustay ang guardian, frugal daw sya and without waste dapat.
Maintenance of the ward; proceeds of the sale, the court will order to pay the maintenance tapos
nakacondition yung bond to ensure that the guardian will comply with the obligation.
Take note that in guardianship, the guardian represents the ward. Take note of Sec. 5: if the case
pertains to a partition where the ward is the co-owner, it is not automatic that the guardian will
represent the ward and join the partition proceedings, kasi kelangan mo muna ng authority of the
court. This is peculiar to actions for partition. So, before the guardian may represent the ward in
a partition proceeding, kailangan ng authority ng court for allowing the guardian to participate in
the partition. That authority for the guardian to participate will only be had after notice and hearing.
The court will investigate the necessity and propriety of the proposed action. The court will evalute
whether it is to the best interest of the ward. A court approval after notice and hearing, and
determining necessity and propriety before the guardian can appear and represent the ward in
partition proceedings.
Sec. 6
Etong provision ng embezzling or concealing, pareho sa settlement of estate. It is also inquisitorial
in nature; fact finding. The purpose is for the court to examine, elicit information, obtain evidence
of those suspected to have embezzled, concealed, or conveyed away the property of the ward.
But, after the examination, as a general rule, the guardianship court have no authority to
determine the right to the property because a guardianship court is a court of limited jurisdiction.
This provision is only inquisitorial, fact-finding, examination, gathering evidence lang sya. It is not
where you will recover the ownership of the property. Once you have the examination and have
the evidence acquired, then the guardian will be authorized by the court to institute the appropriate
case to recover the title of the property alleged to have been embezzled, concealed, or conveyed.
Is this rule absolute?
No, subject to an exception. Sabi ng Supreme Court, unless it is judicially decided that the
property really belongs to the ward. Anong example? In one case, merong issue whether
the donation to the ward is valid. May separate case. The Supreme Court sustained the
validity of donation to the ward, naging res judicata. Nagkaroon ng examination pursuant
to this section, because the donor is concealing the property. In that instance, there is no
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dispute as to who is the owner, kasi nga res judicata, then the guardianship court can
order the delivery. Dito, hindi na kinuquestion kung sinong may-ari, because it is known
that the ward is the owner.
But if there is dispute as to the owner, the guardianship court cannot order delivery. The remedy
is for the guardian to bring an appropriate action for the recovery of title.
If the claim is that, o kay ward ata itong property na ito and it is embezzled by X. Tapos sabi ni X,
hinde, akin to kasi nasakin yung title. In that instance, hindi clear yung owner. Yung guardianship
court cannot make a ruling on who is the owner. The proper remedy is for the guardian to bring
an accion reivindicatoria to recover the title, not in the guardianship proceedings. There is dispute
in the ownership.
Sec. 7
Among the conditions of the bond is to make an inventory. The guardian has to render an
account/inventory of the estate of the ward 3 months after appointment. And then it is not the only
inventory he should make. Annually, after the appointment, dapat meron ding inventory and
account. Tapos, pwede yan upon application of any interested person.The inventory and account
should be sworn to by the guardian. Dapat lahat ng estate nasa inventory and dapat may appraisal
value sya. For the determination of the appraised value, pwedeng assistance of tax appraisers to
appraise the value of the property.
If later on, there are properties discovered that are not in the inventory, then ipapasok natin sya
inventory.
After 1 year after the appointment of the guardian, and thereafter as the court may require, dapat
may guadian magppresent sya ng account under oath, settlement of the account. Mga expenses,
kasama dyan mga expenses.
Pwede bang magkaroon ng sweldo dito?
Basta hindi ka magulang, pwede ka makakuha ng compensation for the execution of the
services. The amount you will receive shall not exceed 15% of the net income of the ward,
should not exceed, pwedeng 15%, pwedeng lower, basta hindi mageexceed. It does not
matter if you are guardian of the person or just the property; in one case, sabi ng Supreme
Court, the rule did not distinguish. Entitled ka to compensation provided you are not the
parent.
To terminate the guardianship, you petition it to the court. Even if the person alleged to be
incompetent may file the petiion on the ground that you are competent. But not automatic, it has
to be judicially determined, in the same way that the court determined your incompetence, the
competence should be judicially determined. Who can file this petition? Also can file the guardian
himself, pwedeng relative or friend.
Petition should be verified, under oath, tapos iaallege nyo don na competent na yung
incompetent. After you file the petition, the court will set it for hearing, notice, the guardian be
given notice also, the ward also. There will be trial, mga relatives and witnesses; relatives may
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contest. The court will then determine whether or not competent na sya or incompetent pa. If
competent, the guardianship will cease. Pag nafind ka na nacompetent and guardianship ceases,
then naging incompetent again, then you just have appointment of another guardian. Walang res
judicata dyan, because meron kang bagong circumstance of incompetence. It would warrant new
appointment of a guardian.
When can a guardian be removed or allowed to resign?
E kung yung guardian mo yung naging incompetent, sya yung naging baliw, or otherwise
incapable of discharging the trust, wasted, mismanaged the estate, hindi nag comply sa
bond, hindi nagrender ng account or made a return 30 days after it is due, the court after
notice to the guardian may remove him and he has to surrender the estate of the ward.
Pwede ring magresign. Pag nagresign or naremove, there will be new guardian
appointed.
Based on jurisprudence, if you look at the grounds for the removal, sabi ng Supreme Court, the
enumeration is not made to become an exhaustive enumeration of grounds. It is more general
and inclusive expression, because of the word "unsuitable". In one case, among the grounds for
removal is that the guardian is insolvent, but not only insolvency, but also other grounds. Sabi,
wala naman yung word na "insolvent", pero sabi ng Supreme Court, it is more of an inclusive
expression.
Notwithstanding that, the removal is subject to the discretion of the court, but there must be cogent
reasons for this. It must be shown that the guardian is indeed unsuitable or incapable of
discharging the trust. It cannot be an arbitrary removal because the guardian cannot still be
remove without cogent reasons.
Bakit it is within the jurisdiction of the court? The court yung nakakaobserve, nakakakita sa
guardian.
Apart from Sec. 2, meron ka pang other termination of guardianship. Dedmahin sa Sec. 3 with
respect sa minor. Important last part "when it appears that upon application by the ward or
otherwise that the guardianship is no longer necessary." Basta hindi na nacessary.
The law empowers the guardianship court to appoint a guardian of an incompetent under the
terms and conditions that the court seem just and necessary. In the same way, the guardianship
with authority to terminate the guardianship upon showing that it is no longer necessary. Also, the
court has the power to modify the conditions or original terms of appointment. That is within the
discretion of the court.
Any judgment dito sa pagremove ng guardianship, like appointment, served with the civil registrar
where the incompetent resides or property is situated.
Section 27
The effect of this Rule amends Rules 92-97 of the Rules of Court. Pag guardianship of
incompetent, Rules of Court tayo. Pag minors, kahit baliw, dito tayo sa Rule on Guardianship of
Minors. Dyan yung basis nyo for distinction.
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Section 1
If the minor is also an incompetent, it shall fall under this Rule. The father and the mother are
legal guardians. Hindi mo kailangan magfile ng petition para ang magulang mo ay maging
guardian mo. By law, legal guardians na sila over the both property and persons and
unemancipated common children. No necessity of court appointment.
Kung naging baliw na sya at 30 years old na sya, magpetition sila for appointment. Kung minor
palang, no need to petition for appointment.
Family Code
Art. 209. Pursuant to the natural right and duty of parents over the person and property of their
unemancipated children, parental authority and responsibility shall include the caring for and
rearing them for civic consciousness and efficiency and the development of their moral, mental
and physical character and well-being.
209 ang basehan natin kaya may natural right ang parents to be guardians of their minor children.
Pursuant to parental authority, natural right yan. Kahit hindi kayo magasawa may parental
authority kayo sa kanya.
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of
their common children. In case of disagreement, the father's decision shall prevail, unless there
is a judicial order to the contrary.
211 is similar to Sec. 1 of the Rules, it is a joint exercise of parental authority, hence joint
guardianship of the common children. Father's decision shall prevail. Is this absolute? No, kapag
hindi makatarungan ang decision ni Papa, pwede magseek si mudra ng judicial relief.
Art. 212. In case of absence or death of either parent, the parent present shall continue exercising
parental authority. The remarriage of the surviving parent shall not affect the parental authority
over the children, unless the court appoints another person to be the guardian of the person or
property of the children.
Kapag meron isang absent or patay na parent, then the one who is present shall exercise parental
authority. This is important: if there is remarriage by the surviving parent, the remarriage of the
mother will not affect the parental authority over the children, as a general rule. Mere remarriage
will not affect the parental authority, unless the court appoint another person to be guardian of the
person or property of the children.
Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all relevant considerations, especially
the choice of the child over seven years of age, unless the parent chosen is unfit.
Pag naghiwalay ang parents, the parental authority shall be exercised by the parent designated
by the court. Kapag 7 below, mother unless found unfit. The court will consider the choice, but
shall decide.
Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority
shall be exercised by the surviving grandparent. In case several survive, the one designated by
the court, taking into account the same consideration mentioned in the preceding article, shall
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the
authority.
Kapag meron tayong death, absence, unsuitability of parents, meron tayong substitute parental
authority on the grandparent. Grandparents yung isa sa mga pwedeng guardians. They can have
substitute parental authority. Kapag maraming grandparents, hindi pwedeng bato-bato pik
nalang, idedesgnate ng court, but it will take into account the preference.
Art. 220. The parents and those exercising parental authority shall have with the respect to their
unemancipated children on wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by right precept and
good example, and to provide for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel, companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, selfdiscipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in
them compliance with the duties of citizenship;
(4) To furnish them with good and wholesome educational materials, supervise their activities,
recreation and association with others, protect them from bad company, and prevent them from
acquiring habits detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the circumstances; and
(8) To perform such other duties as are imposed by law upon parents and guardians.
Rights and duties yan ng parents and guardians.
Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when
the best interests of the child so requires.
Basis natin na even if there are parents but are found unfit, pwede magappoint ng guardian over
the person or property of the child, different from the parents. Itong 222 contemplates the
appointment of guardian other than the parents.
Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of
the unemancipated common child without the necessity of a court appointment. In case of
disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds P50,000, the
parent concerned shall be required to furnish a bond in such amount as the court may determine,
but not less than ten per centum (10%) of the value of the property or annual income, to guarantee
the performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court of the place where the
child resides, or, if the child resides in a foreign country, in the proper court of the place where
the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all incidents and issues
regarding the performance of the obligations referred to in the second paragraph of this Article
shall be heard and resolved.
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The ordinary rules on guardianship shall be merely suppletory except when the child is under
substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which
case the ordinary rules on guardianship shall apply.
Ito naman guardianship over the property. Kailangan ba ng appointment ng court before parents
to exercise guardianship over the property?
No. But need to post bond. Whether for the person or property of minor, not need
appointment. But nagexceed market value of property or annual income of the child, "or"
sya ha. Then they need to file a bond, in an amount that the court determines, which shall
not be 10% of the value of the property or annual income. Sabi ng Court, basis ay
aggregate property.
Why do you need to have a bond?
Kasi malaki-laking halaga na ito. Noong ginawa itong rules na ito yung P50,000 milyones
na yan ngayon. This is to ensure that the parents will faithfully comply with their
obligations, they need to give a bond. How? Kelangan mong magfile ng verified petition
for them to have the bond approved. Filed in the Family Court where the child reside, or if
non-resident, where the estate is found. It is to be conducted in a summary, special
proceeding.
Sa Family Code marami yang summary, special proceeding. Iba pa sa summary procedure.
Art. 226. The property of the unemancipated child earned or acquired with his work or industry or
by onerous or gratuitous title shall belong to the child in ownership and shall be devoted
exclusively to the latter's support and education, unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the child's property shall be limited primarily
to the child's support and secondarily to the collective daily needs of the family.
Kahit nasa guardianship ng magulang yung property ng minor, sa minor pa rin yan. It will only be
devoted for the exclusive support and education of the child. Unless dinonate yan sa kanya and
the donation provides otherwise and not completely for the ward. The right to the parents to the
fruits and income, shall be limited for the support.
For example, may lupa si ward, tas literal may fruits, binebenta sa palengke, yung proceeds
pambili ng diaper. Pwede ba yung proceeds pambili ng diaper? Pwede, kasi para sa child. Pwede
bang gamitin yung proceeds pampalaki ng breasts ng nanay nya? Hindi, hindi support yon.
When we speak of guardianship over the property of the minor, it only means like an act of
administration over the property. What is an act of administration? Care for, or preserve the
property. Anong ibig sabihin nyan? The legal guardian has the plenary power of administration of
the minor's property, which does not include the power of alienation. Alienation as in
conveyances, as in sale, hindi pwede.
If the legal guardians intend to sell a portion of the property or share of the property, they need
judicial authority. If you will sell the property of the ward, the guardian cannot do so on their own.
There is need for judicial authority because the legal guardianship is only an act of administration
over the property of the ward. No legal authority to sell without judicial approval.
What is the effect if they sell without judicial approval?
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Art. 1403, par. 1 - the contract entered into without authority is an unenforceable, pero pwedeng
iratify ni minor upon reaching the age of majority.
Sec. 2
Who may petition for guardianship of the minor?
Relative, or any person in behalf of the minor. Can the minor file himself? Pwede, provided that
the minor is 14 and above. Bakit 14? Ewan ko. Pag numbers, parang tax, we just memorize
(hahaha). Pwede din DSWD magfile ng petition for guardianship.
Saan ifafile ang petition?
Family Court where the minor is a resident. If not resident, where the property is located.
Section 4
It can be guardianship over the property or person, or both.
Grounds for termination
1. If the parents are dead, pwede yan. Continued absence, OFW sila, iniwan lang nila yung anak
nila mag-isa, pwede kang magpaguardianship dyan. Andyan yung parents pero pareho silang
incapacitated.
2. Suspension, deprivation, or termination of parental authority.
Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.
Do not confuse with right to support. Parental authority terminates upon age of majority, but even
if of age, enttitled still to support, because of education.
3. Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party concerned of parental authority;
or
(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority.
Kapag nakapulot kayo ng bata sa lansangan, hindi pwedeng yung parang sa pelikula na "ay ako
na mag-aalaga", baka ma-what crime if any ka! Magpetition ka muna sa court to declare the child
as abandoned, then after declared as abandoned, humingi ka ng guardianship. So, kelangan ng
declaration
of
abandonment.
4. Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising
the same of a crime which carries with it the penalty of civil interdiction. The authority is
automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender.
Suspended din ang parental authority upon conviction ng parent that carries with it the penalty of
civil interdiction. If you want to complicate this topic, if the parent is suffering from civil interdiction,
you can also have a guardian appointed for the parent who is suffering civil interdiction because
it falls under the definition of an incompetent.
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In 230, the reinstatement is automatic; no need for judicial decree. Reinstated upon service of
sentence, pardon, or amnesty of the offender. Yan lang ang automatic reinstatement.
5. Art. 231. The court in an action filed for the purpose in a related case may also suspend
parental authority if the parent or the person exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness.
The grounds enumerated above are deemed to include cases which have resulted from culpable
negligence of the parent or the person exercising parental authority. `
If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall
deprive the guilty party of parental authority or adopt such other measures as may be proper
under the circumstances.
The suspension or deprivation may be revoked and the parental authority revived in a case filed
for the purpose or in the same proceeding if the court finds that the cause therefor has ceased
and will not be repeated.
You need a court action filed for this purpose. There could be suspension of parental authority.
May nakita kayong child sa kalsada na nagbebeg, pwede mo bang sabihin na iuuwi mo na, kasi
yung magulang mo dapat masuspend parental authority? Gaga, kidnapping tawag dyan. Meron
pang parental authority, kelangan mo ng court action to suspend parental authority.
Pwede namang marevoke yung suspension or deprivation if, again you have an action that
revives that parental authority and the court finds that the cause for suspension or deprivation has
ceased.
6. Art. 232. If the person exercising parental authority has subjected the child or allowed him to
be subjected to sexual abuse, such person shall be permanently deprived by the court of such
authority.
Permanent deprivation
7. Remarriage and found unsuitable to exercise parental authority.
8. When the best interest of the minor so requires.
Section 5
Qualifications of guardian
1. Moral character.
2. Physical, mental, psychological condition. Anong psychological? Syempre yung fit.
3. Financial status
4. Relationship of trust with the minor
5. Availability to exercisethe powers
6. Lack of conflict of interest
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7. Ability to manage the property
Who may be appointed?
The court may appoint a guardian in accordance in the ff preference:
1. Surviving grandparents - sila din may substitute parental authority; then
2. In default - oldest brother and sister, pwede ba yung brother na 18 years old? Hinde, oldest na
over 21 years old dapat, unless unfit. Pano kung 8 years old yung kapatid? Lipat sa susunod;
3. Actual custodian - kung saan sila nakatira, but that actual custodian must be above 21 years,
unless unfit
4. Pag wala, any person who, in the discretion of the court, would serve the best interest of the
minor.
Minsan kung wala na lahat ng to, yung DSWD or NGO, nagpepetition sila, sila
maggaguardianship, court-appointed guardians.
Section 7
Contents of petition
Jurisdictional facts - fact na minor ang ward, residence of ward. Petition has to be verified,
certification against forum-shopping. If there is defect in the verification, it will not affect letters of
guardianship.
Just like in guardianship of incompetent, pagkafile ng petition, the court will set the case for
hearing; there shall be notice. If the minor is 14 or over, kelangan bigyan ng notice yung minor.
Just like with the incompetent, service of notice upon the minor is jurisdictional. Without the notice,
the court has no jurisdiction to appoint a guardian. So, kelangan maservan ng notice yung minor,
14 and above. The court can also direct general or special notice to be given.
Itong case study report, the court social worker should make a case study report. Paano nila
gagawan? Iinterview, the court will give time within which they file their CSR. Then, they will go
to the residence ng guardian, interview guardian, potential ward. The CSR is supposed to
recommend whether guardianship is proper; whether person sought to be appointed as guardian
is suitable. CSR is confidential.
Opposition to petition
Oppose interested persons, but it must be in writing, and based on grounds provided under the
rules. If you are saying that a person is to be appointed as a guardian is unsuitable, then you pray
that the petition be denied, or that you be appointed, or any other suitable person named in the
opposition.
After notice and opposition, it will be set for hearing. The court first must be shown proof of
compliance with the notice requirement. Then you will present the ward in court. The court will
hear the evidence. Take note that this is an instance where the court may, in its discretion, close
to the public the records of the case and hearing, because it involves a minor. This is consistent
with the rules on child witness.
Sec. 12
If minor resides in the Philippines but has property in the Philippines, relative, friend, or any
interested in his property whether in expectancy may file a petition in Family Court for
appointment. May notice, pero out of the country ang minor, the notice may be given by
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publication and other notice that the court may deem proper. There is leeway for the court on how
it will make the notice. Not mandatory that it's by publication.
Of course, dahil non-resident ang minor, the court can dispense with the presence of the nonresident minor. If the court is satisfied, it may appoint a guardian.
If there is already an order appointing the guardian, this order should be served on the civil
registrar and register of deeds. Register of deeds where the property is situated, and magrereport
sila ng compliance within 15 days from receipt of the order.
Sec. 14
Bond
Before he enters the execution of the trust or guardianship, an appointed guardian MAY (hindi
mandatory) be required to post bond, as the court shall determine and conditioned as follows:
1. Make an inventory (3 months from issuance)
2. Accounting of the ward
3. Perform all other orders
Where do you file the bond? In the family court.
If there is a breach of the conditions, then you proceed it in the same proceeding. Again, just like
in incompetents, they could be required to post a new bond and the old one will be discharged,
together with the liabilities of the sureties of the old bond, provided that no one will be prejudiced.
Sec. 16
Bond of parents - if parents are guardian you don't need to post bond, you just need to file verified
petition for the approval of the bond consistent with Art. 225 of the Family Code.
Sec. 17
General duties of the guardian
1. Care and custody of the ward, pwedeng management lang ng property, depende sa kung
anong letters of guardianship issued.
Pag guardianship over the property, this only extends to property within the Philippines. Kapag
outside jurisdiction ng Philippines, wala na tayong jurisdiction for that.
2. Pay for the debts. Pag kulang, out of the real property, but again need court approval for the
sale
3. Settling of accounts
4. Manage the property
5. Sell or encumber property, need the authority of the court, pareho lang ng
incompetent. Incompetent - pwede magexamine for embezzlement, concealment; gann din sa
minor, same rule applies. Again, the guardianship is without authority to make a ruling on
ownership. It can only order delivery if the ownership is not disputed. If in dispute, you need a
separate action for the recovery of the ownership of that property.
6. Verfied Inventory - may be required upon application of interested person
7. Render account - Needs to be approved by the court, like settlement of estate. For one year
and every year thereafter.
Power and duty of the court
Inventory has to have appraisal. The court may ask assistance of one or more commissioner in
the appraisal of the property subject of initial inventories. Pwede magreimbursement in
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reasonable expenses and compensation for a guardian NOT the parent. Pag parent hindi ka
susweldohan, trabaho mo naman talaga yan. DAW. Natural obligation nga yan eh. Legal din.
Sa minor, 10% maximum (vs. 15% in incompetent)
If you want to sell the property, pareho din sa incompetent, apply kayo with the court by verified
petition. Sabihin bakit ibenta and yung proceeds. Just like with incompetent, magoorder yung
court na yung mga interested and relatives, show cause why it should not be sold, tapos
maghearing, present witnesses, and the court may order or deny. If the court order the sales, the
court should explain why it is beneficial to sell, and then kailangan ilagay kung saan gagamitin
ang proceeds.
We can use the original bond for the sale, but pwede ring magdagdag ng bond. From the order
of the sale, kelangan mabenta yan within 1 year. Pag lumagpas ka ng one year, hindi na effective
yung order (see last line, Sec. 22). If lumagpas ng one year, ask another authority to sell.
Sec. 22 provides that the court may direct that the property be sold at a public sale. "MAY ORDER
xxx" meaning not mandatory, it can be also at a private sale, depending on the terms of the sale.
Sec. 23
Pwede rin mag order ang court for the investment of the property of the ward.
Grounds for removal or resignation of guardian
Pareho lang with incompetent: when the guardian becomes insane, incapable of discharging the
trust, unsuitable, wasted management, failed to render an account. Notice to the guardian,
remove him and require him to surrender his property.
Pwede ring magresign nalang sya. Tapos, magkakanew guardian. But note, wala sa Rules of
Court: no motion for removal or resignation shall be granted unless the guardian has submitted
proper accounting of the property and the court has approved. Pag di pa nakasubmit ng proper
accounting, hindi yan ireremove. Kailangan magsubmit muna sya ng accounting. Nagsubmit na
sya, pwede na ba yon? Hindi rin, sabi ng Rules, approved by the court. Submitted AND approved.
Only then can the court entertain the removal or resignation of the guradian.
Sec. 25
Termination of guardianship by verified motion or by the court motu proprio. Sino ang pwede
humingi ng termination? Yung humingi ng appointment in the first place. Sino yon? Relative,
person in behalf of the minor or the minor himself.
Grounds:
1. If he has become of age; or
2. Has died
Pag namatay ba, automatic na nawala? Kelangan mo muna sabihan ang court. And then the
court will rule on it. After the fact happens, inform the court, and then need a motion or the court
may do so motu proprio, and if it is satisfied that the grounds are present.
All final and executory orders, meaning for the appointment and termination shall be served on
the civil registrar or the register of deeds; both of them shall enter the final and executory order in
their appropriate books.
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Sec. 1
Kelan tayo nagkakaroon ng trustees?
You will appoint a trustee when necessary to carry into effect the provisions of a will or a written
instrument. Trust necessitated by a will or a written instrument. Pwede na may person named as
trustee, pwede rin na it requires a trust but hindi nagname ng person. In which case, the court will
appoint.
Trust - confidence reposed in one person, called a trustee, for the benefit of another person, called
the cestui qui trust, for the benefit of the latter.
If the will does not name the trustee, the probate court shall exercise sound judgment in appointing
a trustee in carrying into effect the provisions of the will. If a trust is actually created in a will, the
provisions should be carried into effect, in accordance with the purpose in the will.
Itong Rule 98 contemplates an express trust. So, when it is express trust, created by will or written
instrument. Hindi kasama ang implied trust. Ang implied trust, sa civil code, deducible in the nature
of the transaction.
Trust v. EXECAD
Parehong position of trust, parehong position under judicial authority. Pero, duties of EXECAD
are fixed by law; yung duties ng trustees are dependent on the intention in the instrument, or
established in the contract or will. Duty nya kung anong nakalagay sa will. EXECAD kung ano
nasa Rules of Court. In other words, trust, kung anu-ano, kasi depende yan sa terms of the
instrument that creates the express trust.
There needs to be bond. If walang bond, it is refusal of the trust. Just like with guardianship, and
just like in EXECAD. Amount fixed by the court. Kapag bond ng trust, it is payable to the
Government of the Philippines. Conditions under Sec. 6: inventory, dispose the estate according
to the provisions of the estator or instrument provides, accounting, pag nagexpire ang trust, settle
the account.
The power of the trustee is only within the jurisdiction of the Philippines. The authority cannot
extend beyond the jurisdiction of the court where the trust was appointed.
In the execution of the trust, the trustee has to comply with the instrument and the powers and
duties provided under the Rules.
Meron din pong compensation ang trustee.
Removal, resignation of trustee
The court may remove a trustee on the ff. grounds:
1. If it is essential to the trust;
2. Trustee is insane or becaome incompetent;
3. Otherwise incapable of discharging the trust, or unsuitable.
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Pwede rin syang magresign. Whether it is the court who appoints the trustee or pursuant to named
person in the instrument, pwede syang magresign.
Proceedings for sale or encumbrance, with the approval of the court.
*Incomplete
Habeas data - similar with amparo with right to life; right to privacy, life and liberty is violated, or
threatened to be violated. Need unlawful act or omission by a public official or employee or private
individual. Pag habeas data, engaged in gathering, collecting, and storing data or information
regarding the person, family home, and correspondence of aggrieved party.
Habeas corpus, actual violation to liberty; Amparo and data, pwede yan yung threatened pa lang.
Yung habeas data, security mo, yung privacy.
Writ of amparo, where do you file it?
RTC of the place where the act or omission was violated. Pwede rin any of the elements; in the
place where any of elements occured. Pwede rin Sandiganbayan, Justice of Sandiganbayan;
pwede rin CA, any justice of CA; or Supreme Court, or any justice of SC.
Writ of habeas data
Where the data is collected, gathered, or stored, at the option of the petitioner. RTC, CA, SC,
Sandiganbayan only if the action concerns public data files or government offices.
Habeas corpus - merong special jurisdiction ng MTC; walang ganon sa amparo and habeas data.
In habeas corpus, enforceability of the writ depends on which court issues the writ. If RTC, judicial
region; CA, SC, Philippines. Kapag amparo, enforceable anywhere within the Philippines,
regardless of who issued the same. If amparo is issued by the RTC, it is returnable to such court
or judge. If issued by SB or CA, return it to SB, CA, any Justices, or to the RTC of the place where
any of the elements occurred. If the element occured in San Juan, and you filed in amparo in CA.
Can the return be filed in Makati? No, because the element did not happen in Makati, but in San
Juan.
The higher the court, it includes the lower courts where you will return the writ. When you apply
SC, you can return it in CA, SC, Sandiganbayan, RTC of the place where it occured.
Ganon din sa habeas data. Enforceable within the Philippines regardless of who issues the same,
returnable before the RTC that issued it, SB, SC, CA. Pareho lang sila.
Respondents
Respondents sa habeas corpus, may or may not a public officer, like in custody of minors. In
amparo, respondent is public official or employee, or private individual or entity, but an
indispensable element is government participation in held in Navia v. Pardico (G.R. No. 184467).
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For the writ of amparo to issue, there has to be an allegation and proof that the person subject
are missing, and you have to show by substantial evidence that the disappearance was carried
out with the authorization, or support of the State, or political organization. The petitioner in
amparo case has the burden of proving by substantial evidence the indispensable element of
government participation.
Sa amparo, all you need is substantial evidence, lesser than habeas corpus, which is clear and
convincing evidence. Bakit clear and convincing sa habeas corpus? Kasi, the evidence you need
to overcome the presumption of regularity is clear and convincing, because that is a presumption,
a legal presumption. An officer can raise regularity presumption in habeas corpus. This does not
apply in amparo; only substantial evidence is required. Habeas data, respondents is your public
official, employee, or private individual or entity engaged in the gathering, collecting, etc.
Who may file the petition?
Habeas corpus – Petition signed and verified either by the party for whose relief it is intended, or
by some person on his behalf (Rule 102, Sec. 3). There must be a relation between the petitioner
and the detainee if the petitioner is not the detainee himself (see 2013 Jara Notes).
Amparo - aggrieved party, kung kaya; if nagdisappear, any qualified person, pero may order sya.
Meaning, pagnafile na ng isa in this order, it precludes the other from filing it:
1. Any member of the immediate family of the aggrieved party: spouse, children, parents.
2. Ascendants, descendants, collateral relatives within 4th civil degree of consanguinity or affinity;
3. Any concerned organization, association, or institution.
The right to file is successive.
If the party himself files the petition, it means others cannot file anymore.
Habeas data - aggrieved party
In case of extralegal killings or forced disappearances, mayroon ding order:
1. Aggrieved party;
2. Immediate family;
3. Ascendants, descendants, 4th degree
Contents
Habeas Data
Sec. 6. Petition. - A verified written petition for a writ of habeas data should contain:
(a) The personal circumstances of the petitioner and the respondent;
(b) The manner the right to privacy is violated or threatened and how it affects the right to life,
liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or information;
(d) The location of the files, registers or databases, the government office, and the person in
charge, in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction
of the database or information or files kept by the respondent.
In case of threats, the relief may include a prayer for an order enjoining the act complained of;
and
(f) Such other relevant reliefs as are just and equitable.
Writ of Amparo
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SEC. 5. Contents of Petition. – The petition shall be signed and verified and shall allege the
following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the respondent may be described by an
assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation
by an unlawful act or omission of the respondent, and how such threat or violation is committed
with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs.
Allege the facts that constitute the granting of the writ, meaning circumstances, right violated,
actual or threatened. Need to allege the actions and recourse taken by the petitioner.
Kapag data, may update, rectifications, suppression, destruction of the file or database.
Docket fees
In habeas corpus, criminal case, released ka, sino matatax? Government. Civil case, tas
narelease ka, sino matatax? Applicant.
Amparo - whoever the petition may be, he is exempted from payment of docket fees.
Habeas Data - Need indigent petitioner to be exempt from payment of docket fees. Only indigent
are exempted from paying docket and lawful fees.
In other words, amparo lahat exempted; habeas data only indigent.
Summary hearing amparo, it shall conducted not later than 7 days from issuance of the writ.
Walang ganyan sa habeas corpus. Pag habeas data, 10 working days from issuance of the writ.
It is only in habeas data where the defenses may be heard in the chambers. Bakit kelangan sa
chambers? If you are invoking defense that is based on national security or state secrets,
obviously it can be compromised if divulged. So, it has to be in the privileged nature or for the
interest of public, it may be heard in the chambers.
Served personally amparo writ, if cannot be served personally, then the rules on substituted
service will apply. Ganon din sa habeas data. Kapag nagrefuse ka to make a return, false return,
or disobeys amparo, may contempt and imprisonment
Habeas corpus, fine or contempt. Amparo, imprisonment, or fine for committing contempt. Data
ganon din.
Contents
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Amparo - Mahaba haba ang contents ng amparo. Why? The burden is on respondent to show
efforts and steps taken to look for the person disappearing or subject of alleged killing.
Respondent files return 5 working days from service of the writ.
More contents required in amparo: requires action taken by the official in determining the
whereabouts, lawful defenses, information relevant to the case, verifying identity. In habeas
corpus, we can have a general denial; in amparo, cannot have a general denial. Kung wala sayo,
need to allege in the return efforts taken, investigation, witnesses, circumstances in looking for
that person alleged to have disappeared.
Very specific in amparo that the presumption of official duty has been regularly performed will not
apply. You cannot invoke it as a defense. No similar prohibition in habeas corpus.
Return ng habeas data, lawful defenses, disclosure ng information, whether respondent has
control over the data or information, actions taken, and the accuracy of the data.
If you fail to file a return in amparo, the justice or judge, will hear the case ex parte. Similar in
kalikasan. No such similar prohibition in habeas corpus. Pero pareho sa habeas data.
Are there prohibited pleadings in habeas corpus?
No. See Rule 102, no prohibited pleadings
Meron sa amparo and habeas data.
Is it correct that we do not have interim relief in habeas corpus?
No. Safekeeping in adjournment is an interim relief in habeas corpus.
Amparo and habeas data, marami: temporary protection order, inspection order, production order,
witness protection order.
TPO can be issued by the court upon motion or motu proprio. Can be for the aggrieved party or
immediate party to be protected in govt agency or accredited person or private institution.
Inspection order - verified motion, then hearing, then the court may order the person in posession
to permit entry, inspection, survey, measuring.
Production order - upon motion, one in possesion of documents
Witness protection order - upon motion or motu proprio, witness may be refered sa DOJ to be
admitted in WPO (RA6981). Pwedeng ipasok sa DOJ Witness Protection program, pwede ring
irefer sa ibang govt agencies or accredited persons capable to keep them and ensure their safety.
Under Rule 102, is there a period within which to render judgment?
Wala. Pero in habeas data and amparo, should be rendered within 10 days from the time the
petition was submitted for decision, not from the filing of the petition. From the time it orders the
case submitted for decision, 10 days magrurule na. Habeas data, ieenforce yan within 5 working
days.
Appeal
Is there appeal in habeas corpus?
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Yes. In habeas corpus, when the court finds that the prisoner is unlawfully restrained, ididscharge
from confinement. But, the discharge will not be effective until a copy of the order has been served
to the officer who is detaining; or hindi madidischarge if an appeal is filed. Pag hindi sa nagappeal, marerelease ka; pag nagappeal sya, hindi ka pa marerelease.
Period to appeal:
Habeas Corpus: 48 hours from notice from judgment
Amparo: 5 working days from notice.
Mode of appeal
Amparo: Rule 45 to Supreme Court. This is an instance where a R45 petition but you can raise
both questions of fact and law.
Both amparo and habeas data appeal is Rule 45, and may raise issues of facts and law.
Institution of separate actions
The rules shall not preclude separate civil, criminal, or administrative actions. When a criminal
action has been commenced, the rules provide that there should not be a separate petition for
amparo or data. Reliefs requiested, if ever dun na sa separate case. No such provision in habeas
corpus.
Quantum of proof
Substantial evidence - amparo and data
Clear and convincing evidence - habeas corpus. Why? Need to overcome presumption of
regularilty
Sec. 20, Amparo
Archiving and revival of case
Kelan iaarchive? They will try to keep alive the amparo case and will not try to dismiss and archive
it if they cannot proceed with the case for a valid cause. Valid cause? If petitioner or witness
cannot appear due to threats on their lives. Gano katagal iaarchive? There will be a periodic
review of archived cases. The court, upon motion or motu proprio, will order the revival after
review of the case. Pero, the petition shall be dismissed in case of lapse of 2 years from the notice
of the order archiving it.
Suppletory application of Rules of court in habeas corpus and amparo.
Based on recent jurisprudence, there is new standard on relaxed admissibilty in amparo cases:
new standard of relaxed admissibility in amparo cases. May substantial evidence ka na, may
relaxed rule of admissibility ka.
Sabi, you need to prove governmnet participation. Instead of looking at evidence piece-by-piece,
the courts will look at the totality of the evidence. Kunwari, may isang evidence. It would have
been inadmissible for being hearsay. Hindi yan agad ididisregard ng court. Rather, the court will
look at the totality of the evidence. Bakit? Kasi daw, the court recognize that it should not reject
outright evidence because it is admissible in evidence. As long as it survives the test of reason,
i.e., it is relevant, the court will consider it in totality with the other evidence. Just beceause it is
inadmissible, hindi automatically disregarded.
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Bakit may ganon? The government's participation or evidence of that is usually hard to produce.
Direct evidence is hard to produce, kaya it will look at the totality of the evidence. Rather, titignan
yung totality yung evidence.
I. DOMESTIC ADOPTION (RA 8552)
In adoption, it creates a legal tie between the adoptor and adoptee. Take note that in RA 8552,
all proceedings here, the records, books, the files of the court, even of the DSWD are strictly
confidential. Any disclosure of information will be sanctioned.
One of the things that a lot of students that don’t know about adoption process is that there is a
pre-adoption process. So, before you file the case in court, may pre-adoption process. Saan itong
pre-adoption process? It’s with the DSWD. The DSWD provides counselling services between
the biological parents, and the prospective adoptive parents and the prospective adopte. Now, if
the biological parents are unknown, they will try to locate it; pero pag wala talaga, then there is
placement of the child with the DSWD or the child-placing agency accredited.
If they cannot find the biological parents, they cannot just automatically assume parental authority.
The child should first be registered as a foundling. Then, subsequently, there will be proceedings
for the child to be declared an abandoned child. SO, who may file for petition for adoption under
the RA 8552? You know this already, it can be any Filipino citize, alien, guardian. Sino ba ang
pwedeng guardian? Yung DSWD, if naapoint silang guardian kasi wala yung parents, foundling
yon, or declared abandoned, they can be the ones who can also cause the giving of consent for
the adopted child. We discussed this under guardianship.
So, yung Filipino citizens, andyan na, imemorize nyo yan, together with the alien. The alien has
to have the same requirements of the Filipino, but additionally, there has to be diplomatic relations
between the Philippines and the foreign country of that alien, such that they would allow reciprocal
rights. And then, kailangan ang alien nakatira sa Philippines for 3 continuous years prior to the
filing of the adoption. Pero yang residency na yan, may subject to exception:
1. If that alien is former Filipino citizen, and seeks to adopt a relative wihin the 4th degree
of affinity or consanguinity; or
2. Iaadopt nya yung legitimate son or daughter ng Filipino spouse nya; and
3. Married sya to a Filipino citizen and both of them jointly adopt a relative within 4th
degree of affinity or consanguinity ng spouse nya.
As a general rule, the spouses should jointly adopt. If one spouse only gives consent, pero hindi
sya joint in the petition, hindi magpprosper ang petition. Is this rule absolute?
Exceptions
1. If the spouse seeks to adopt the legitimate son or daughter of the other;
2. If he seeks to adopt his own illegitimate son or daughter, provided there is consent of
the spouse; or
3. The spouse is legaly separated with each other.
So, why do you want to have joint adoption?
So that they have joint exercise of authority over the child. In the case of Michelle Lim and
Monina Lim, here the spouses did not jointly adopt; the husband only gave his consent, but
he did not jointly file the petition together with the wife. That is why the petition did not prosper.
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So, who may be adopted under the Domestic Adoption Act?
A child legally available for adoption: dapat yung child na yan should have been voluntarily or
involuntarily committed in the DSWD. How will you do this? Pwede yan through the accredited
child-placing agency. It means that the biological parents are freed of their parental authority.
Pwede din yung nagkaroon ng rescission for adoption. Any person below 18 years of age
volutnarily committed to DSWD or judicially declared availble for adoption.
Meron tayong voluntary commitment of child. Sino itong pwedeng voluntarily commit? Pwedeng
parent, guardian of the dependent, or abandoned or neglected child. Icocommit nyo sya sa
DSWD, or a licensed child-placement agency. So, the child must be surrendered in writing by the
parents or the guardian for the voluntary commitment. Isusurender nyo yan for the care or custody
of the DWSD or the accredited agency. Ngayon, kapag yung parent naman patay na, or legal
incapacity, or the child was abandoned for at least 1 year, yung surviving parent or the available
parent who is present, alone, can make that written authority for commitment. So, when they
make that commitment, the DSWD receives the child and they have the authority to train, educate,
care for the child, and for the preparation for the placement of the child. Once you voluntarily
commit your child for placement sa DSWD, magtterminate yung exercise of parental authority ng
biological parents.
As I said, an illegitimate child may be adopted. The legitimate child of one spouse may be adopted
by the other spouse. Can a child of legal age be adopted? Pwede rin. A person of legal age,
regardless of civil status, kahit may asawa na sya, pwede parin yan maadopt. But the question
is, what will happen to parental authority? Because parental authority ceases at the age of
majority? Notwithstanding that the adopting parents can no longer exercise parental authority
over the child, still, there will be a legal tie between them, because there are other consequences
of adoption, not just authority. What are the other consequences? That person will be elevated to
the status of a legitimate child, the right to inherit, the right to use the surname of adopting parents.
So as long as the child is not disqualified under the law or the rules, pwede yan.
Jurisdiction and venue
Sa Family Courts natin yan of the city or the province where the prospective adoptive parents
reside. Kelangan nya ng certificate of non-forum shopping to be attached to your petition. Can
you join a petition for adoption with a petition for change of name? If it will just be the surname,
okay yan, because that is the consequence of a legal adoption: the surname of the adopted child
will be changed to the surname of the adopting parent. But if you will be changing the first name,
kunwari yung bata na iaadopt mo, pangalan nya Procopio, di mo trip, gusto mong palitan, gusto
mong gawing Christian, kasi Christian ka. Can you have that change of name? No, sabi ng
Supreme Court, just because you are adopting a child, it does not follow that you can change the
first name. What is the legal effect in the adoption is the change of surname because of the legal
tie that is created between the adopting parents and adopted child. But if you will be changing the
first name, the first name should meet the grounds for change of name under Rule 103: ridiulous,
causes confusion, etc. In the absence of those grounds, you cannot change the name, even if
you baptize the child. Again, adoption does not authorize the adopting parents to change the first
name unless the grounds are present. Adoption is not a ground for the change in first name. So,
if only the grounds the present, that is the only time you can change the first name. If you want to
seek rectification of a birth, pwede rin yan gamitin. It is more of a rectification ng simulated birth,
na administrative process na sya under RA 11222.
Does the adopted child need to give consent? If the child to be adopted is 10 years or older, then
gagawa sya ng written consent or affidavit. In the same way, if the adopting parents have children
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10 years or older, kelangan mo rin ng consent nila, pati yung illegitimate children. And then the
spouse of the adoptee, if any, kailangan din ng consent.
Meron dalawang klaseng study report dito. Meron tayong child study report, and meron din tayong
home study report. Yung child study report, gawa yan ng DSWD. So in essence, they will prepare
this report, iinterviewhin nila yung child to be adopted, the prospective adopting parents, and then
they will make recommendation to the court, whether or not parang beneficial yung adoption, or
not. Then the home study report is made by the court social worker. It is to see whether the child
would fit the environment. Now, the case study report needs to be attached to the petition. That
is one of the requirement. Kung tatanungin yan sa bar, it has to be attached. However, in real life,
in practice, we don't really attach it because if you ask for it from the DSWD and ask for case
study report, they will ask to file the petition, and then for the court to direct them to make the
report, which is contrast with the rules that requires the case study report already attached to the
petition. What I do in my adoption cases, is that I allege that the rules require and that we
attempted to obtain from the DSWD, who in turn said that we should get first a court order. I
include there undertaking that it will be submitted to the court once prepared and is made available
by the DSWD, asking the court also to direct the DSWD to make the case study report. But, don't
answer that in your Bar. For your bar, it must be attached because that is what the rule provide.
File ka ng petition, then there would be order of hearing. The court will state the date and place
of the hearing; it should be set 6 months from the date of the issuance of the order. Tapos,
kailangan ng publication, because it is an action in rem, because it involves status, binding around
the whole world. And then, you need to cause the publication for 3 consecutive weeks in
newspaper of general circulation. If you are going to join a change of name petition together with
your adoption, then you need also to comply with the jurisdictional requirements for change of
name, including the venue. Kaya pag malabo, hindi sya pasok, paghiwalayin mo. Pero pag pasok,
pagsamahin mo.
Take note that under Rule 103, iba yung date of hearing nya, diba? Shall not be within 4 months
after the last publication of the notice, nor 30 days prior to an election. So, the newspaper will be
selected under the supervision of the executive judge. Niraraffle yan kung kaninong newspaper
kayo magpapapublish.
There will be a hearing. In the hearing, you need to present your jurisdictional requirements: that
you have caused the publication of the order, and then, there will also be a supervised trial
custody. Before the issuance of the decree of adoption, the court shall give the adopter trial
custody of the adoptee for the period of at least 6 months. Ito yung parang test period nila within
which the parties are expected to adjust psychologically and emotionally. So, imomonitor to ng
social worker. During this temporary period, there is temporary parental authority vested on the
prosepctive adopting parent. But int practice, what I do, especially when the adoptee is the
illegitimate child of the adopting, or the foreigner spouse who wants to adopt, I have a prayer for
the waiver of the supervised trial custody. What is my basis for that? In the supervised trial
custody, may court may motu proprio or upon motion, reduce the period or exempt the parties
from the supervised trial custody. If it finds that it is for the best interest of the adoptee, then the
court can reduce or except.
Who are your indispensable parties? The adopting parents, the adoptee, kung yung biological
parents are known, they should be with their consent. Kung wala, and they are under placement
in DSWD, and there is already declaration of legally available for adoption, okay na yun. Kelangan
nyo rin, especially when it involves change of name, yung mga civil registry where the registration
is found, PSA, OSG, yan, isama nyo yan, prosecutor's office
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Decree of Adoption
Once there is decree of adoption, successful ang supervised trial custody, iggrant na yan ng court,
yung decree. The decree of adoption will take effect as of the date of the original filing of the
petition. So, magreretroact sya. Yung date of adoption would've been the date of the petition. But,
before you can do that, you must comply with the registration requirements. You need to have
the certificate of finality of the decree, meaning hindi sya inappeal. You need that certificate of
finality registered with the civil registrar where the child is originally registered, dapat within 30
days of the receipt of the certificate.
May an illegitimate child adopted use the surname of her natural mother as her middle name?
CASE: In re: Stephanie Astorga Garcia, G.R. No. 148311
Inallow ng Supreme Court. We have no law on middle names. So, walang nagpoprohibit nyan.
Although we have no law on middle names, sabi ng Supreme Court, walang masama kung iallow
natin yan kasi it will identify the lineage of that person. Maaidentify nya yung lineage ng biological
mother nya. And even if adoption terminates parental authority, that adopted child is still entitled
to inheritance from biological parents. So, that lineage would still establish the right to
successional rights. So, inallow sya ng Supreme Court.
CASE: Republic v. CA and Wong, G.R. No. 97906
Si Maximo Alcala was adopted by naturalized Filipino citizens. As a consequence of his adoption,
he bore the surname Wong. Upon reaching the age of 22, he sought to change his name. Sabi
nya, kasi daw nakakaembarras yung paggamit ng Wong eh naiisolate sya sa relatives and friends,
because it suggest Chinese ancestry. In truth, he is a Muslim Filipino residing in Muslim
community. He wants to erase any indication that he is of alien nationality. Sabi nya, he is being
ridiculed for having a Chinese surname. It hampers his business and social life. Sabi, his adoptive
mother does not oppose to his desire to revert to his former surname of Alcala. The OSG opposed
this: that is ingratitude to the memory of his adoptive father, and to his adoptive mother. Should
the change of name be granted?
Yes, pwede. A change of name would not define or effect a change in one's existing family
relations, or in the rights and duties flowing therefrom. It does not alter his legal capacity as now
legitimate child. It will not alter his citizenship. What is altered is only the name and for his best
interest and grounds found to be proper.
Juan was being adopted. Together with the adoption, his adoptive parents sought to change his
name to Michael, the name he is baptized with. May his name be changed since he is being
adopted?
No, the law allows the adoptee to bear the surname. Pero kung first name, the grounds must be
present, and in the absence of those grounds, hindi pwede.
Rescission
Can the adopting parents rescind the adoption?
Hindi. Adoption is not for the benefit of the adopting parents, it is for the benefit of the adopted
child. So ano po ang gagawin kung ayaw na nila nitong inadopt? Idisinherit nalang if the grounds
are present. But, rescission maybe done upon the instance verified petition by the adoptee who
is 18 years of age, or if minor, with the assistance of DSWD.
There are grounds under the Civil Code. Saan nya ifafile? Sa Family Court. Ano ba yung
grounds?
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1. Repeated physical or verbal maltreatment of the adopter despite having undergone
counselling.
2. Attempt on the life of the adoptee;
3. Sexual assault or violence;
4. Abandonment or failure to comply with parental obligations.
Once filed a petition, the court will issue an order requiring the adverse party to answer the petition
within 15 days from receipt. And then, the court will render judgment whether to rant or deny
rescission.
Kapag ginrant sya, then the parental, if minor, babalik sya sa DSWD. Pati successional rights,
idedeclare ng court to revert back to the status prior to the adoption. Then, there will be registration
of this decree with the civil registrar concerned.
X was adopted under the Civil Code. Wala pa ang Domestic Adoption Act. Under the Civil Code,
pwedeng magrescind ang adopting parents. In the present time na in effect ang Domestic
Adoption Act, may the adopting parents avail of their right under the Civil Code to rescind the
adoption?
No. Kasi, RA 8552 already abrogate and repealed the right to rescind under the Civil Code by the
adopter.
Meron ding book of adoptions. The Clerk of Court should keep this book of adoption stating the
date of the issuance of the decree, and compliance with the civil registrar.
II. Inter-Country Adoption
Sino ang iaadopt mo?
Ang iaadopt mo dito ay Filipino child, pero ang magaadopt ay foreign national, or a Filipino citizen
permanently residing abroad.
Parehong Filipino or foreigner pwede sa Domestic and Inter-Country. Ang iniba lang, sa ICA, ay
ang magaadopt ay permanently residing abroad. Pero kung foreigner yan pero dito permanently
residing here, mag-domestic adoption ka provided they fall under the qualifications. Kapag
permanently abroad, Inter-coutnry adoption tayo.
Magffile ka ng verified petition to adopt a Filipino child. Sino magfafile? May be filed by a foreigner
or Filipino citizen permanently residing abroad. Saan mo ifafile? In the Family Court having
jurisdiction over the place where the child resides or may be found. Pwede rin sa Inter-Country
Adoption Board.
Just like in Domestic Adoption Act, only a child legally available for domestic adoption can be the
subject of inter-country adoption. If the court sees it sufficient in form and substance, itatransmit
yan sa ICAB. Pwedeng deretso sa ICAB.
Magaapply ka, may mga records, documents, communications. Lahat yan, confidential. Hindi yan
pwede marelease without the written authority of the ICAB. Yung ICAB, yan yung central authoirty
to all matters relating to inter-country adoption. It is composed of Secretary of DSWD as ex-officio
chairman and 6 other members to be appointed by the President for non-renewable term of 6
years. Dapat may isang appointed na psychiatrist or psychologist; 2 lawyers who shall have the
qualifications of an RTC Judge; 1 registered social worker; and 2 representatives from NGOs
engaged in child caring and child-placement activities.
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Yung mga requisites on who may adopt, di ko na yan iisa-isahin, nasa batas na yan. So katulad
ng Domestic Adoption, kailangan may diplomatic relations. Meron tayong tinatawag na
"matching", matching the child to the applicant. You have a matching conference, mangyayari
yan before the placement committee. So, magseset ang ICAB ng guidelines on the matching
process. Dapat may matching proposal, presentation ng social worker, magdedeliberate sila, then
the committee action are: either approval, disapproval, or deferment. Di muna sila magrurule. Sila
din magrurule sa MR, if any. THe matching committee will endorse the proposal to the ICAB for
its approval and appropriate action. Ano ba yung nasa proposal? Ilalagay nila yung reasons and
recommendation for the placement. It is the board who shall act on the matching proposal of the
committee. If it is approved, then there will be a notice of matching. It will be sent to the foreign
adoption agency within 5 days from the date of approval. Pero, kailangang may kasamang child
study report, healthcare certificate, medical certificate ng child, recent photographs, itemized preadoption placement costs.
Yung applicant mismo, sya dapat magnonotify ng foreign adoption agency, in writing, of his
decision on the matching proposal. Pareho silang magdedecision. Tey have 15 calendar days to
decide. If di sila nagdecide, iisipin yan na reject; it will be deemed rejected.
Any matching agreement should only be in accordance with the inter-country adoption rules.
Unless it is a relative, or on exceptional cases that the ICAB approves. If the applicant accepts
the matching proposal, magkakaroon ng confirmation and then, the board will issue the placement
authority within 5 working days. And then, there will be a copy of placement authority transmitted
to the DFA and the foreign adoption agency.
Pagkatapos maissue ang placement authority, bago ipagdeparture ang child abroad, the child will
be given necessary preparation and guidance ng DSWD. Tapos dapat, it should be the applicant
ang magsusundo. They should physically fetch the child from the airport within 30 days after
notice of issuace of the visa of the child. The unjustified failure of the applicant to fetch within the
period will result in automatic cancellation of the placement; ibig sabihin, hoy, hindi kami
nagmamakaawa na iadopt yo mga Pilipino, ganon. Kung ayaw mo, di wag. Cancelled agad.
Tapos non, magkakaroon ng trial custody once the child is transferred abroad. This one will be
supervised by the foreign adoption agency. 6 months. Tapos non, magkakaroon ng supervised
pre-adoptive placement. Magkakareport on this one. If the pre-adoptive relationship is found to
be unsatisfactory after the supervised trial either to the child or applicant or both, or the foreigna
agency finds that the continuous placement is not in the best interest of the child, then the
relationship shall be suspended. Magmamake sila ng temporary care nung child, iaalis from the
prospective adopting parents. Pero before this ruling is made, it must be shown that the foreign
adoption agency exhausted all means to remove the cause for that unsatisfactory effect.
If naterminate yung pre-adoptive relationship, magsstart ulit yan ng process. Maghahanap sila.
The child will then be repatriated as last resort, if found to be in the best interest of the child.
If satisfactory naman yung relationship, magkakaroon ng written consent by the board to the
adoption. Ang mageexecute nito ay ang DSWD to the foreign adoption agency. Tapos, tapos na
ba yon? Hinde.
Pagkatapos non, the applicant will file for petition for adoption. Ibig sabihin, itong lahat ng
prosesong ito, ay preparation lang ng adoption. Pag namatching matching na, and successful
ang supervised trial, the prospective adopting parent should file a petition of adoption with the
proper court or the tribunal where the applicant resides within 6 months after completion of the
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trial custody. Itong inter-country adoption, ang process ng ICAB, they do not issue decree of
adoption. Essentially, they find matching, they supervise the pre-adoption process, and if found
satisfactory, they will consent to the adoption. So, in effect, ang entire process ng inter-country
adoption is whether magcoconsent ang ICAB to the adoption of that Filipino. If consent is given,
the foreigner must institute a petition in accordance to the rules.
A man's name is the designation by which he is known in the community in which he lives and is
best known. Ang name ng word or words that distinguishes a person from other individuals. So,
since it is for the identity of the person, the State has interest. There are two parts in the name:
the given name or the proper name, or first name, and the surname, or the family name. Dedma
sa middle name. Pero by practice, meron tayong middle name, pero wala talaga sa batas yan.
First and second name lang.
Name mo is your name as it appears in the birth certificate. Then, family name is the name that
identifies the family to which you belong. The given name may be freely selected by the parents,
sobrang freely selected, kahit ano pwede like yung recently ang pangalan Covid, Covid Rose,
Covidubidapdap. Pagtanda nalang nya at the age of majority magpachange of name nalang sya
dahil sure yan magfafall under any of the grounds.
Characteristics of Name
1. Absolute;
2. Intended to protect individuals from being confused with others;
3. Obligatory, nobody can be without a name;
4. Fixed, unchangeable, immutable, at least at the start; and may be changed only for good cause
and by judicial proceedings;
5. Outside of commerce of ma, hindi pwede bilhin;
6. Inalienable, intransmissible by inter vivos or mortis causa;
7. Imprescriptible.
No person can change his name or surname without judicial authority. So, merong record ang
State of all our names, and if you change it, it is pursuant to a decree and will also be recorded.
The state has the interest in the names of individuals, as well as in change of names. Change of
name is not a matter of right; it is a privilege granted only for proper reasonable cause.
In one case, his name is Julain Carulasan Wang. Mag-aaral sya sa Singapore, gusto nya gawing
Julian Lin Wang, kasi hindi daw mapronounce sa Singapore ang "Carulasan", yung letter R,
subject daw sya sa ridicule. Is this allowed by the Supreme Court?
No. While there is no law governing middle names, this does not mean that the middle name has
no practical or legal significance. Middle name serves to identify the maternal filiation of a person,
and that is way to distinguish one from others with the same name.
In case of annulment of marriage, the wife, if guilty party, she shall resume her maiden name and
surname. If innocent spouse, she MAY resume her maiden name or continue to use her
husband's surname, unless the court decrees otherwise, or ikasal ang either of one of them ulit
(remarry).
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Widows may use the deceased's husband surname. Bakit kelangan ng ganyang batas? With the
death, naterminate yung marriage. Technically, single ka na. Pero sabi, you may still use your
deceased husband's surname.
Legal separation, what is the effect? It is only separation of bed and board; kasal ka parin.
Insofar as married people are concerned. Kapag si Anna Cruz Santos married kay Pedro Reyes.
Anong mga pangalan nya?
1. Retain maiden name: Anna Cruz Santos, kasi sabi "may" sa Civil Code, so pwedeng
retain.
2. Pwede gamitin ang surname ni husband, magiging Anna Santos Reyes; or
3. Hypenated - Anna Cruz Santos - Reyes; or
4. Kelan natin gagamitin ang Mrs.? Hindi natin sasabihing Mrs. Anna Santos Reyes, mali yan,
Ms. Anna Santos Reyes dapat. Gagamitin mo lang ang Mrs. kapag kasunod nya ang
pangalan ng husband: Mrs. Pedro Dizon Reyes. Bakit? Kasi Mrs. really stands for "Mistress
of", so Mistress of Pedro Dizon Reyes. All others, Ms. lang yan.
Sa mga magiging abogado, ikasal after maging abogado, may additional requirement. Your name
in the roll of attorneys is your name as a lawyer. If you get married, and you will use your married
name, then you need to change your name in the Roll of Attorneys. So let us say your name is
Anna Cruz Santos, you became a lawyer and signed Roll of Attorneys as Anna Cruz Santos. So
the lawyer authorized to practice law is Anna Cruz Santos. If she marries Mr. Reyes, and she will
now use Anna Santos Reyes, then she will need to file a petition with the Supreme Court to
change her name in the Roll of Attorneys to reflect her married name. That is additional
requirement for lawyers.
All births, ieenter yan sa civil register.
Jurisdiction and Venue
RTC has jurisdiction over petitions for change of name under Rule 103. It is incapable of pecuniary
estimation. Where is the venue? Petitioner's place of residence at least 3 years prior to the date
of filing.
The petition should be verified. Then, dapat nakalagay yung name nya, and the name he wants
it to be changed to.
A petition for change of name is a proceeding in rem. Kailangan ng strict compliance for
requirements for the court to vest jurisdiction over the whole world. Yung publication, tsaka yung
order.
May peculiar period ang order dito sa Rule 103. Sec. 3 major difference between Rule 108 - the
petition should be signed and verified, have to include the ground for the change of name. If the
court finds the petition sufficient in form or substance, iiissue nya yung order sa Sec. 3. Three
successive weeks in a newspaper of general circulation, but the date of hearing should not be
within 30 days before an election, nor within 4 months after the last publication of notice.
There has to be publication as well. The petition, and the order of publication and the hearing
should be contained in its title or caption the applicant's real name, his aliases, other names, and
the name he seeks to adopt. Lahat ng names, in other words, dapat nandoon. There must be
effective publication that recites the name, or the names of the applicant, the cause for the change
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of name, and the new name asked for. Failure to comply will result in the court not acquiring
jurisdiction to hear and determine the petition.
There are only limited grounds for the change of name: ridiculous, dishonorable, extremely difficult
to write or pronounce, legal consequence of adoption or legitimation, change of name to avoid
confusion, one has continuously used and has been known by a FIlipino name and he was
unaware of his alien parentage, change based on sincere desire to adopt a Filipino name and
erase the signs of former alienage, all in good faith; surname causes embarrasment and there is
no showing that it is for fraudulent purpose.
In one case, nagkaroon ng order for change of name for publication. Kaya lang, yung date ng
hearing na nakaset ay hindi nagcocomply sa 4-month limitation. Ginawa ng court, nireset ang
date that complies with the 4-month limitation. OSG did not object and in fact participated in the
proceedings. Later on, judgment was rendered allowing the change of name. OSG appealed
because of alleged failure to comply Sec. 3. Should it be reversed?
No, the judgment should be sustained. Hindi naman nagreklamo yung OSG. In fact, it was notified
as in fact it participated in the proceeding.
When change will avoid confusion
Yung pangalan nya sa birth certificate, Yu Chi Han. Sabi nya, naging Catholic na sya, so ang
inembrace nyang name ay Alejandro Go Yu. Confusing daw kasi ang tawag sa kanya ng friends
nya Alejandro, yung iba Yu Chi Han, yung ibang documents Alejandro, yung iba Yu Chi Han, is
that a valid ground?
It will not be granted. The confusion is due to his unauthorized use of a name other than his true
name. The situation could be remedied by using his true name (Yu Chi Han v. Republic, G.R. No.
L-22040).
CASE: In the matter of change of name of Yap Ek Siu v. Republic, G.R. No. L-25437
Petitioner Yap Eksiu instituted an action to change his name to William Tanchon. Bakit? Kasi daw
yung classmates daw nya tawag sa kanya William, pagkatapos yung tatay nya nanaturalize, yung
surname ng nanaturalize nyang father ay Tanchon. Dahil ba nanaturalize ang tatay nya ay pwede
na rin mapalitan ang surname nya?
No. Sabi ng Supreme Court, tawag ng classmates sa kanya William pero sa lahat ng
documents nya yung Chinese pa rin nya. He is still a Chinese citizen. Mas confusing kung
Chinese ka tas Filipino ang name nya.
Gusto nya iadopt yung surname ng asawa ng nanay niya. He is an illegitimate child. His mother
remarried, so he has a stepfather. But the stepfather never adopted him. He wants to change his
name so that he will have the surname of his stepfather. Stepfather has children from previous
marriage. Will it be granted?
No. To warrant change in name will invite confusion as to the paternity to the prejudice of the
stepfather and the separate siblings.
Take note that in change in name, there is what we call an adversarial proceedings. We have
opposing parties; it can be contested. It must be heard in an adversarial proceeding; it cannot be
in a summary proceeding. Just because there is no opposition, it does not mean that the court
should not go through the same process. THe court is expected to exercise its judgment to
determine whether the petition is meritorious, even if there is no opposition.
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We have judicial, we have for typographical errors.
Judicial - Rule 108
Typographical errors - RA 10172
Sec. 2
Nasa transfer certificate of title, Juan dela Cruz, married to Maria. Gusto nya tanggalin, icorrect
yon, hindi naman sa married. Tanong: does that fall under Rule 108, to correct the TCT?
No. It is in the first sentence of Sec. 2, Rule 108: it is entries in civil register. Ang TCT,
wala sa civil register, nasa registry of deeds.
Can we treat Rule 103 petition as Rule 108 petition, and vice versa?
Pwede naman, it's not the title, but the body (of the petition). As long as nagcocomply
yung 103 denominated petition mo with 108 and vice versa, pwede. But note the difference
between 103 and 108, like ung date of hearing, very specific na wala sa Rule 108: not
within 30 days before election or within 4 months after last publication of notice. Yung mga
indispensable parties, OSG sa 103, Civil Registrar 108.
Pwede ka ba magkachange of name and correction of entry? Yes, as long as you can comply
with venue and jurisdictional requirements.
If you are to going to divorce your spouse abroad. One of you is a foreigner, is it enough that after
you get your foreign decree of divorce, can you already remarry, can the Filipino spouse after the
foreign spouse obtained a divorce decree abroad?
No. Because, we do not recognize that foreign decree; you have to have a recognition of
foreign decree. After the recognition of foreign decree, pwede na ba? No. Kailangan pa
ng correction of entry under Rule 108.
You can either file a recognition of foreign decree, then subsequently correction of entry, or you
can join it in one petition. However, that if you join it, you need to comply with the requirements
for both 108 and foreign decree recognition. Let us say that the marriage took place in Bacolod.
So, the entry is found in Bacolod. If you want to correct that entry, you must file it in RTC of
Bacolod. But if the Filipino spouse is a resident of Makati and she will file a foreign decree. Under
the rules for foreign decree, you file it in Makati. But for Rule 108, you need to file it in Bacolod.
But according to Dean Jara, venue is procedural; it can be waived. So if hindi magreklamo yung
kabila, edi ijoin mo. Pag nagreklamo, edi madidismiss, and ifile nyo sa proper court.
Ang tatandaan nyo sa Rule 108 is kung saan entry found, where the entry is found, because you
want to join as a party the Civil Registrar where the entry is found.
The indispensable parties must be notified; obviously whose entries need to be corrected. Take
note of the coverage under RA 10172. Kapag hindi nagfafall sa RA 10172, Rule 108.
An illegitimate child can have the surname of the father, as long as he is recognized, in writing.
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Ano ang coverage ng RA 10172?
Expanded na. Kasama na day and month of birth. Ano ibig sabihin non? January 1, 1990.
Yung January, tsaka yung 1. Yung 1990 hindi kasama. Sex, is now allowed provided that
it is patently clear that there was clerical or typographical error or mistake. Citizenship,
108 yan.
We have typographical and clerical error under RA 10172. When you say it's clerical, it is an error
made in the process of writing, copying, or transcribing, or typing the entry in the civil registrar. If
it is clerical, it must be harmless or inocuous such as a mispelled name or misplaced place of
birth; mistake in the entry of day and month. Kapag date, hindi RA 10172. It must be visible to the
eye.
CASE: Republic v. Cagandahan
With the law, it removes clerical errors in Rule 108. If clerical errors, dun tayo sa RA 10172. Anong
ifafile mo? Verified petition with the local civil registry of the city or municipality where the record
sought to be corrected is being kept.
If nagmigrate na yung petitioner to another country, tapos impractical na syang bumalik sa
Pilipinas para lang magfile ng petition na yan, it can be filed in the place where he is currently
residing or domiciled. Magcoordinate nalang yung dalawang civil registrars na yan.
May posting of petition in conspicuous places for 10 consecutive days, and the city or civil registrar
or consul general shall act on the petition; they should render a petition in 5 working days, and
itatransmit nila yung decision sa Office of Civil Registrar. If petition is denied, pwede mong iappeal
to Civil Register General, or file the appropriate petition in court. So, kapag clerical yan hindi ka
didiretso sa court, dito ka muna dadaan. Pag denied magaappeal ka sa court.
CASE: Silverio v. Republic
Had a sex change. Is that a ground for correction?
No. Ang birth certificate is the recording at the time of birth. Nung birth, male sya. So hindi
pwedeng palitan, kasi accurate namang male sya nung pinanganak. Sex change not a ground.
In Cagandahan, may CEH sya. Merong characteristics of both male and female, and it is
recognized that having both female and male reproductive organs, only one of thosebecomes
more developed. It only becomes more apparent as the person ages. In her case, it was allowed.
Kasi nga naging mas dominant yung one characteristic nya over the other.
CASE: Republic v. Olaybar
Nagpagawa ng passport sa agency. Pagkatapos gumawa sa agency, ninakaw ang kanyang
identity ng ibang ate gurl, na ginamit yon para magpakasal sa isang Korean national. Nung
ikakasal na ang ating bida sa kasong ito, kumuha sya ng CENOMAR, nagulat sya married na sya
to a Korean national, civil wedding. Should she file a petition for nullity of marriage?
No. There is no marriage to begin with; here, the petition for correction of entry should be granted
that she is not married, because she was never married in the first place. That is a correction of
entry. But if instead she is the one married and any of the essential or formal requisites is absent,
then the ground is nullity of marriage.
Can a illegitimate child allowed to use the surname of father, can a mother file a petition to change
the surname of the child to remove the surname of the father?
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No. It is the choice of the child and provided the grounds are present. But the child can
only do it age of majority. Why? Because the use of the surname of the father is for the
benefit of the child that cannot be cannot taken away by the mother.
Ano nangyayari dyan? Kasi minsan, nanganak sila tapos they are born out of bigamous marriage
or something. Para hindi sila mahuli ng adultery, iibahin nila yung pangalan ng magulang.
Pagkatapos non, pag mas matanda na sila, nakapagabroad na sila, nakapagnaturalize na sila,
gusto nilang ipetition ang mga anak nila, pati illegitimate, hindi nila mapetition kasi sa birth
certificate iba ang magulang, kasi gumawa sila ng simulated birth, e hindi nila macorrect kasi
baka mahuli sila, kaya mayroon tayong ganitong batas.
Inaallow nito that one who is responsible will not be criminally, civilly, or administratively liable
provided that they did that simulation of birth for the best interest of the child, and the child has
been treated consistently treated by the persons as his own. Provided further that the person who
filed the petition for adoption with application of rectification does that within 10 years from the
effectivity of this act.
Ano pa bang example ng simulation? Yung iba ayaw na dumaan sa proseso ng adoption.
Generally kasi, hindi ka makakaadopt in legitimate process ng newborn child, bakit hindi pwede?
Kasi nga may proseso pa tayong pre-adoption process. Ang pinakabatang maaadopt mo ay 6
months na yan. Super fast process na yon. Yung iba gusto nila yung newborn, so yung iba may
ginagawang pagkaanak ibibigay na yung bata saka irerecord yung birth na ipapalabas na anak
mo where in fact hindi naman anak. Ito rin yon, to correct that.
Section 6
Take note that under Sec. 6, RA 11222, meron tayong rule on admissibility of evidence. Sabi dito,
all petitions, documents, records, and papers relating to adoption, rectification of simulated births
cannot be used as evidence against those who simulated the birth of the child, or those who
cooperated in the execution of such simulation in any criminal, civil, or admin proceedings.
GInagawa nila yan to avail the benefits of this law.
Section 7
Who are persons qualified?
Filipino citizens, legal age, full legal capacity, good moral character, and have not been convicted
of any crime involving moral turpitude, emotionally and psychologically capable of caring children.
Kapag married couple where one of them is a foreign national married to a Filipino, kelangan
yung foreigner residing at least 3 continuous years in the Philippines, katulad ng domestic
adoption.
Administrative adoption procedure in Art. 4, RA 11222
You will file a petition to rectify and together with the rectification, kasama na rin yung adoption
mo. So andun yung facts, yung grounds, admit the simulation, a copy of simulated birth or
foundling certificate. Bakit may foundling certificate na peke? Palalabasin na foundling, pero hindi
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talaga. You need to have an affidavit of these interested persons, certification from the barangay,
photographs of the child.
The adoption process that you file the petition with the social welfare and development in the city
or municipality where the child resides. Tapos, ieexamine nila yung petition and supporting
documents. If it is not sufficient in form or substance, ibabalik nila sayo para icorrect, if sufficient
in form or substance it will go to Regional Director, then they would establish the identity of the
child, they will prepare the recommendation, and then they may require additional information to
be submitted, then isasubmit yan sa Secretary of DSWD for recommendation, then the Secretary
will decide on the petition. The Secretary, in deciding, will issue order of adoption if they find that
the adoption will redound to the best interest of the adopted child. Then, the order will state the
name by which the adoptee will be known, and magkakaroon ng cancellation of simulated birth
record. Ang magiging bago is yung decree of adoption and the new record that will arise out of
this administrative adoption. Icacancel yung peke, magiisue ng bagong birth certificate. It has to
be recorded to the civil registry.
What would be the effect of administrative adoption? Just like a judicial adption, may legitimacy,
parental authority, and successional rights.
Rescission
Can there be rescission of an administrative adoption?
Yes, but just like in domestic adoption the one who can only file is the adoptee. Same grounds sa
domestic adoption
Effect of rescission
Restored sya to the status prior to the adoption.
You have to distinguish absence and declaration of presumptive death.
There cannot be a judicial decree, unless it is for summary declaration of presumptive death for
purposes of marriage. For purposes of successional rights, you cannot have a decree of
presumptive death. It is only a presumption. If for successional rights, you just file your petition,
then allege that there is presumption legal that the person is death arising from the grounds
present under the Civil Code.
Yung absence na decaration, the purpose of this is to have a person administer the property of
a person who has been absent. The period depends on whether there is an agent/administrator
left, or none.You have an action to declare a person absent for the purposes of appointing an
administrator. 4 years - 2 years.
Do not confuse absence to presumptive death. Yung period iba.
Sa Civil Code merong 10 years, 5 years, yun yung for declaration of presumptive death. You do
not institute an action to declare a person dead; you just allege that you raise for intestate or
testate succession. But if the person is absent, and you want a person to be declared absent, 2
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years or 4 years, if the case may be, you want the person to be declared absent so that you can
appoint a person to be declared an administrator so that he will take care of the properties of the
absentee.
There are provisional remedies that you can avail in nullity, annulment proceedings. Support,
custody, protection order, HDO, visitation, administration. These are interim reliefs. OSG has to
be included as a party and the prosecutor.
It is required that the petition should be verified, and grounds for denial, collusion.
Jurisdiction and Venue
Jurisdiction - Family Court
Venue - Residence where they have been residing.
Under the new rules, additional requirement if it is declaration of nullity: not enough that you are
residing there, you have to show proof of residency. Ano yung mga proof? Govt IDs showing
picture, signature, and address that is within the jurisdiction of the court; utility bills showing at
least 6 months before filing of petition the address; proof of residence, ownership, or lease
contract, as the case may be. Barangay certification sworn to showing residence and that you are
a bonafide resident of that address. Sworn certification of your lawyer that your lawyer went to
you residence and affirms that indeed, you are a bona fide resident of that area
Bakit kelangan nitong requisites?
Kasi merong mga nangyaring kaso in the past na nahuli na merong nababayarang judges.
Kunwari sa Visayas pero taga-Luzon ka, eh gusto mo sa judge na yon para magrant yung petition
kahit walang grounds. So ang gagawin ng iba, gagawa ng fake residence, kukuha ng isang bahay
don, irerent nila for purposes of filing the petition para may address ka. So, para madeter yan
they made all these requisites.
Now, in Family Cour cases, before we even proceed with the case, we have to have compliance
with the requisites. The OSG has to be joined, and there is no default in nullity, annulment cases.
If there is no comment or answer filed in relation to the petition, the court will order the prosecutor
to conduct a collusion hearing. What is a collusion hearing? They will determine kung
pinagusapan nyo to. Marami silang tatanungin. Very straightforward, "pinagplanuhan nyo ba to?"
It is for the prosecutor to make a recommendation and report to the court on whether or not there
is collusion. Obviously, if there is collusion, your petition will be dismissied.
Can you bring an action for nullity of marriage after your death?
Hindi na, pag patay ka na, wala ka na marriage to speak of. The marriage is dissolved by death.
Who can bring an action?
Only the parties. Pag annulment, exception yan, pwede yung parents or guardian of insane or
nagmarry sila without parental consent but within a limited period only.
If it is a nullity of marriage, it is imprescriptible. Why? Because a void marriage can never prescribe
to become valid. Pero ang annulment and legal separation may mga prescriptive period yan that
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you must comply with. Pero, sa legal separation, pag nagprescribe yung ibang ground tapos
nagkaroon ka ng new ground, pwede yan.
Example. Physical violence, nangyari 2000. Nanahimik ka lang. 2010 nangyari ulit. Yung 2000
nagprescribe na but yung 2010 you have a new ground for legal separation. But since 2020 na,
pareho nang nagprescribe. Binugbog ka kahapon, yung dati hindi na, yung kahapon pwede na
for legal separation, pwede rin yang VAWC kung trip mo.
Do not forget the cooling period under legal separation. You will not apply the cooling-period if
the ground is also one constituting VAWC. Waived yan.
Pag nakakuha ka ng decree of nullity of marriage, or annulment, you need to comply generally
with Art. 50 and 51 of the Family Code. Yung 50 and 51 is liquidation, partition, and distribution
of properties, and delivery of presumptive legitime of common children. Upon entry of judgment
and granting of petition of nullity or annulment, on motion of either of the parties, the court shall
proceed with liquidation, partition, and distribution of the properties of the spouses, including
custody and support of common children, and delivery of presumptive legitime, pursuant to Art.
50 and 51 of the Family Code. You relate it to Secs. 19 and 21 AM No. 02-11-10-SC, unless
naadjudicate na yan in previous proceeding. However, that rule only applies to void marriages
under Art. 40 and 45 of the Family Code. That rule on compliance in 50 and 51 only applies to
void marriages and marriages under 40 and 45 of the Family Code. 40 - bigamous marriage
(second bigamous marriage contracted); 45 - voidable marriage. Art. 50 and 51, in relation to Sec.
19 and 21 of the rules only applies if the marriage that is nullified or annuled falls under Art. 40,
or 45.
If the ground for annulment of marriage is Art. 36, Arts. 50 and 51 do not apply. Bakit? Kapag Art.
36 ang nullity of marriage, what is your property regime? Not ACP, it will falls under Art. 147. If
the marriage is void and there is no legal impediment, the property regime is 147. if void and has
legal impediment, the property regime is 148. SInce it is under Art. 147, since walang legal
impediment.
If falls under Art. 147, it is in the nature of co-ownership. That is why we do not comply with 50
and 51. Since we follow instead rules on co-ownership, ano ang gagawin kapag co-ownership?
Paano hahatiin? Rule 69, partition. Pwedeng judicial, pwedeng extrajudicial.
To repeat, if the marriage is void, and it is specifically under Art. 36, we do not comply with Art.
50 and 51. Therefore, we do not comply Sec. 21 on Rules of Annulment.
CASE: Dino v. Dino, GR No. 178044
If nullity of marriage is due to Art. 36, Art. 50-51 and Sec. 21 of AM No. 02-11-10-SC will not
apply.
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