Part I: INTRODUCTION TO SPECIAL PROCEEDINGS

Civil Action and Special Proceedings Distinguished

a. Definition
- Civil action is one by which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong.
- Action is a formal demand of one’s legal rights in a court of justice in the
manner prescribed by the court or the law. It is the mode of applying legal
remedies according to established rules.
- Special proceeding, pertains to remedy in which a party seeks to establish a
status, a right, or a particular fact.

Difference bet. Action and spec pro

- Action is an ordinary suit in the court, while spec pro is another remedy
furnished by law.

Example:
- in the recovery of property, the remedy of the plaintiff is to file an action.
-ifthe purpose is to seek the appointment of a guardian for an insane person, his
remedy is a special proceeding to establish the fact or status of insanity calling for
the appointment of a guardian.

b. Involved parties
-Action involves at least 2 parties (A plaintiff who initiates the filing of the
complaint, and the defendant who responds through an answer)
-Special proceedings usually involve just one party (Initiates the
proceeding with a petition, an application, or a special form of pleading)

c. Nature
-Special proceedings are non-adversarial since there is no definite adverse
party.

Rule 72. Subject Matter and Applicability of General Rules

Section 1. Subject matter of special proceedings. —rules of special proceedings are provided for in
the following cases:

(a) Settlement of estate of deceased persons;

(b) Escheat- when a person died without leaving any will or legal heirs, his real and personal
property will become the property of the state.

(c) Guardianship and custody of children;

a court grants someone other than a biological parent the right to care for a minor.

(d) Trustees;- a person or member of a board given control or powers of administration of

property in trust with a legal obligation to administer it solely for the purposes specified.
 (e) Adoption;- the act of establishing a person as parent to one who is not his real/leag child.

(f) Rescission and revocation of adoption;

(g) Hospitalization of insane persons;

(h) Habeas corpus; A writ of habeas corpus is used to bring a prisoner or other detainee
(e.g. institutionalized mental patient) before the court to determine if the person's
imprisonment or detention is lawful. A habeas petition proceeds as a civil action against
the State agent (usually a warden) who holds the defendant in custody.

(i) Change of name;

(j) Voluntary dissolution of corporations;

(k) Judicial approval of voluntary recognition of minor natural children;

(l) Constitution of the family home;

(m) Declaration of absence and death;

(n) Cancellation of correction of entries in the civil registry.

Note: This list is not exclusive, as long as the remedy seeks to establish a right, status, or a
particular fact, then it may be called special proceedings.

Example:

1. Liquidation of an insolvent corporation, such as a bank was classified as a special

proceeding resembling a petition for settlement of the estate of a deceased person. (Pacific
Banking Corporation Employees Organization vs. Court of Appeals)

2. Petition for annulment of marriage, is likewise a special proceeding since it seeks to

establish a status or right or a particular fact.

Other special proceedings:

-Summary proceedings- a civil or criminal proceeding conducted without formalities (such as

pleadings) for the speedy disposition of a matter.

-Actions mentioned in the family code such as:

a. Declaration of nullity of void marriage and annulment of voidable marriages

b. Legal separation
c. Provisional orders on support, custody of minor children, and administration of common
property
d. Violence against women and their children and protection orders
-Proceedings under the Child and Youth Welfare Code, child abuse and Child Employment Act
such as:

a. Declaration of status as abandoned, dependent or neglected children

b. Voluntary or involuntary commitment of children
c. Suspension, termination or restoration of parental authority

-Domestic adoption- the process of adopting a child from the country in which you live.
-Inter-country adoption- refers to the socio-legal process of adopting a Filipino child by a
foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the decree of adoption is issued outside the
Philippines.

-Liquidation- the process of liquidating business. converting property or assets into cash or cash
equivalents by selling them on the open market.

-Writ of amparo- remedy for person whose right to life, liberty and security are violated or
threatened with violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity.

-writ of habeas data- the writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information

-writ of kalikasan- legal remedy for the protection of one's right to “a balanced and healthful
ecology in accord with the rhythm and harmony of nature” under Section 16, Article II of the
1987 Constitution
-arbitration- a procedure in which a dispute is submitted, by agreement of the parties, to one or
more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties
opt for a private dispute resolution procedure instead of going to court.

-recognition and enforcement of arbitral award- defensive process in which a party to an

arbitration asks a national court to “recognize an award as valid and binding upon the parties in
respect of the issues with which it dealt”

Section 2. Applicability of rules of civil actions. — In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

-Rules on special proceedings are liberally construed, to promote objective of

securing a just, speedy and inexpensive disposition of every proceeding.

GENERAL RULE: Provisions on the following rules of civil procedure, also apply to
special proceedings:

a. Preparation, filing of service of applications, motions, and other papers

b. Omnibus motion rule
 c. Subpoena
d. Computation of time
e. Motion for new trial
f. Modes of discovery
g. Trial before commissioners
h. Demurrer to evidence

(where they are not inconsistent with or when they may serve supplement, the
provisions relating to special proceedings)

-A certification against forum shopping shall be required in special proceedings

(Sheker vs. Estate of Alice O Sheker)

Part II: SETTLEMENT OF ESTATE OF DECEASED PERSONS

Art. 777. The rights to the succession are transmitted from the moment of the death of
the decedent.

But before the transmission of rights, the procedural guidelines set forth in Rule 73 to
90 must be first observed.

Modes of settlement of estate

a. With court intervention
-Summary settlement of estate of small value
-Partition
-Settlement through letters testamentary or letters of administration with or
without the will annexed
b. Without court intervention
- or the extrajudicial settlement, which presupposes that the deceased left no
will, no debts, and all heirs are of legal age.

RULE 73. VENUE AND PROCESS

Section 1. Where estate of deceased persons settled. — If the decedents is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in which
he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First
Instance of any province in which he had an estate.

The court first taking cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts.

The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent,
or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of jurisdiction appears on the record.

Proceeding for settlement of estate

-Steps before compulsory heir may get his legal share.

a. Net estate, must be ascertained by deducting all payable obligations and charges from the value
of the property owned by the deceased at the time of his death

b. all donations subject to collation would be added to it

-Legitime of compulsory heirs can be established only thereafter it can be ascertained whether or not
the donation had prejudiced the legitime.

Jurisdiction over settlement of estate

-MTC and RTC take cognizance

-Jurisdiction depends on the gross value of the estate concerned

-MTC if not exceed 300,000 or 400,000 if within metro manila

-If exceed 300k to 400k RTC has jurisdiction

Note: only probate proceedings are triable in MTC, all other special proceedings fall in RTC and
family court.

RULE 73, Section 1 talks about venue and not jurisdiction (Garcia Fule vs. CA)

Since it refers to decedent’s place or residence or location of the decedent’s estate.

In order to determine the proper venue in estate proceedings, look into the facts of residency
in the Philippines and not the fact of citizenship.

 IF decedent is residing in the PH at time of death, regardless citizen or alien, the

estate must be settled in the decedent’s place of residence.
 IF decedent is not a resident at time of death, estate may be settled in any place
where any of the decedent’s properties are located.

NOTE: The court taking first cognizance of the settlement of the estate of the decedent shall
exercise jurisdiction to the exclusion of all other courts. HOWEVER, preference is given in favor of
court where Testate proceedings, as compared to intestate proceedings, are held. (Testate
proceeding take precedence over intestate proceeding)

When the probate court acquire jurisdiction over all properties, no other court can dispose of such
properties without the probate court’s approval (Applicable only to PH court)

EXCEPTION: Raising impropriety of venue, through 2 instances

a. In an appeal from the court, in the original case- When the estate proceeding was brought up
on appeal or
b. When the want of jurisdiction appeals on the record- a plain reading of the records will show
that the venue was improperly laid. For example, while a petition for probate of the will
 alleges that the decedent was a resident of Makati City at the time of death, the petition was
filed in Paranaque City. Obviously, the petition should be dismissed for improper venue.

-THIS CAN BE WAIVED IF NOT RAISED. objection of improper venue should be made in a
motion to dismiss, and before the movant submits himself to the jurisdiction of the probate
court.

Residence- refers to the actual or physical residence of a person,

Domicile- a dwelling place, a person's fixed, permanent, and principal home for legal purposes

Domicile” is your “permanent home,” while “Residence” is your “temporary home.”

Case of Cuenco vs CA-The court with whom the petition is first filed, must also first take cognizance
of the settlement of the estate in order to exercise jurisdiction, for the exclusion of all other courts.

EXTENT OF JURISDICTION OF PROBATE COURT

-Probate court has limited jurisdiction, it concerns the administration, liquidation and distribution of
the estate.

-Main function is to settle and liquidate the state of the deceased either sumarrily or through
process of administration

AUTHORITY OF PROBATE COURT

a. Determine the heirs

b. Make just and legal distribution of the estate.

Other Jurisdiction:

1. to approve sale of properties of a deceased person by his perspective heirs before final
adjudication
2. To determine who are the heirs
3. The recognition of natural child
4. Status of a woman claiming to be legal wife
5. Legality of disinheritance
6. To pass the validity of a waiver of hereditary right

-Its jurisdiction also extends to matters incidental or collateral to the settlement and distribution of the
estate, such as the determination of the status of each heir and whether property included in inventory is
the conjugal or exclusive property of the deceased spouse.

A probate court CAN NOT adjudicate or determine title to properties claimed to be a part of the
estate and which are claimed to belong to outside parties

Exceptions:
a. In a provisional manner to determine whether said property should be included or excluded in
the inventory, without prejudice to the final determination of title in a separate action

b. With the consent of all the parties, without prejudice to the rights of third persons [

c. If the question is one of collation or advancement

d. When the estate consists of only one property

A. Case of Romero vs CA- only the probate court can rule on whether properties are conjugal and form
part of the estate.

B. Heirs of Ypon vs Ricaforte

Exception on the need to institute a separate special proceeding;

a. When, for the sake of practicality, the parties in a civil case voluntarily submitted the issue to
the trial court and already presented their evidence regarding the issue of heirship, and the
RTC had consequently rendered judgment thereon
b. Also, when the special proceeding had been instituted but had finally closed and terminated,
hence cannot be re-opened

Jurisdiction over questions of title to property

General Rule: Probate court cannot adjudicate or determine title to properties claimed to be part of the
estate and equally claimed as belonging to outside parties.

Exception: To determine whether certain property should or not be included in the inventory, the probate
court may pass upon the title thereto but such determination is not conclusive and is subject to the final
decision in a separate action regarding ownership, which may be instituted by parties.

Order of inclusion or exclusion merely provisional and interlocutory

-The court acquires jurisdiction over properties through proceeding has supervision and control over said
properties, and has an inherent duty to see that inventory submitted bby administrator contains all the
properties, rights, and credits which law requires.

Inherent power
-to determine what properties, rights and credits of deceased should be included or excluded
from the inventory.

-To hear the observation, if there are properties left out as pointed by heir, with the power to determine if
such observations should be attended to or not. But no determination is final and ultimate as to the
ownership of the said properties.

-Final determination of ownership must be threshed out in a separate civil action and not in the
probate court.
EXCEPTIONS TO PROBATE COURT’S LIMITED JURISDICTION

a. Probate court may pass upon issue of ownership when interested partie are the heirs who
have all appeared into the proceeding and the rights of third parties are not impaired.
b. Without prejudice to the rights of third parties, all parties may consent to the probate
court passing upon the ownership of a property subject of probate proceedings.

Section 2. Where estate settled upon dissolution of marriage. — When the marriage is dissolved by
the death of the husband or wife, the community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased
spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or
intestate proceedings of either.

 Creditor cannot sue the surviving spouse for collection of sum of money chargeable
against conjugal property. REMEDY is to file a claim in the settlement of estate of the
decedent.

Rationale: upon death of one spouse, powers of administration of surviving spouse ceases and is
passed to the administrator appointed by probate court in settlement proceeding.

SETTTLEMENT OF CONJUGAL PROPERTY

 No longer necessary to file a separate proceeding for proper disposition of the estate
of deceased husband or wife.
 IF BOTH spouses DIED, the conjugal partnership shall be liquidated in the testate or
intestate proceeding.

Section 3. Process. — In the exercise of probate jurisdiction, Courts of First Instance may issue
warrants and processes necessary to compel the attendance of witnesses or to carry into effect
theirs orders and judgments, and all other powers granted them by law. If a person does not perform
an order or judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a
warrant for the apprehension and imprisonment of such person until he performs such order or
judgment, or is released.

Ancillary powers of a probate court

a. Issue warrants and processes to compel the attendance of a witness and to carry into effect
their orders and judgments

b. Issue warrant for apprehension and imprisonment of a person who refuses to perform an order
or judgment

c. All other powers granted to them by law [Sec. 3, Rule 73

Section 4. Presumption of death. — For purposes of settlement of his estate, a person shall be
presumed dead if absent and unheard from for the periods fixed in the Civil Code. But if such person
proves to be alive, he shall be entitled to the balance of his estate after payment of all his debts. The
balance may be recovered by motion in the same proceeding.

Presumption of death for the purpose of succession

Gen rule: No independent action for declaration of presumptive death

Except: spouse may seek the declaration of presumptive death of his or her husband for purpose of
remarriage under family code.

Civil Code: Article

390. After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all purposes, except
for those of succession.

The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened.

Family Code: Under Article 41 of the Family Code of the Philippines, if a spouse has
been absent for four (4) consecutive years and the spouse present had a well-founded
belief that the absent spouse was already dead, he or she can file a summary
proceeding to have the absent spouse declared presumptively dead, in order to
remarry.

Who are presumed dead for all purposes including the division of
estate among heirs in case of extraordinary presumption of death?
1. Person on board a Vessel lost during a sea voyage, or an airplane which is missing, who has
not been heard of for four (4) years since the loss of the vessel or airplane;

2. Person in the Armed forces who has taken pat in war, and has been missing for four (4)
years;
3. Person who has been in Danger of death under other circumstances and his existence has
not been known for four (4) years.

If absentee turns out to be alive, he or she may recover the balance of one’s estate after the
payment of all debts. BALANCE may be recovered on motion in the same proceedings.

-Person erroneously declared dead may recover his property in the condition it may be found at
the price that it may have been alienated but fruits and rents may not be recovered.
EFFECTS OF ABSENCE UPON THE CONTINGENT RIGHTS OF ABSENTEE

Article 393. Whoever claims a right pertaining to a person whose existence is not recognized must
prove that he was living at the time his existence was necessary in order to acquire said right. (195)

Article 394. Without prejudice to the provision of the preceding article, upon the opening of a
succession to which an absentee is called, his share shall accrue to his coheirs, unless he has heirs,
assigns, or a representative. They shall all, as the case may be, make an inventory of the property.
(196a)

Article 395. The provisions of the preceding article are understood to be without prejudice to the
action of petition for inheritance or other rights which are vested in the absentee, his representatives
or successors in interest. These rights shall not be extinguished save by lapse of time fixed for
prescription. In the record that is made in the Registry of the real estate which accrues to the
coheirs, the circumstance of its being subject to the provisions of this article shall be stated. (197)

Article 396. Those who may have entered upon the inheritance shall appropriate the fruits received
in good faith so long as the absentee does not appear, or while his representatives or successors in
interest do not bring the proper actions.

Cases: Cuenco vs. CA 53 SCRA 360

Uriarte vs. CFI 33 SCRA 252
Heirs of Marcelino Doronio 541 SCRA 479
vs. Heirs of Fortunato Doronio

RULE 74. SUMMARY SETTLEMENT OF ESTATES

(SECTIONS 1 TO 5)

Cases: Carreon vs. Agcaoili 1 SCRA 521

Hernandez vs. Andal 78 PHIL 196

General rule: The estate of the decedent should be judicially administered through an
administrator or executor. Exceptions: Law allows heirs to resort to 1. Extrajudicial settlement of
estate (decedent died intestate and left no debts)

Exceptions: Law allows heirs to resort to

1. Extrajudicial settlement of estate (decedent died intestate and left no debts) [Sec. 1, Rule
74]
2. 2. Summary settlement of estate (for estates of small value, when gross estate does not
exceed P10,000) [Sec. 2, Rule 74]

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no will
and no debts and the heirs are all of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may without securing letters of
administration, divide the estate among themselves as they see fit by means of a public instrument
filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary
action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means
of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in a pending action for partition, or the sole heir who
adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as
a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or
of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an
amount equivalent to the value of the personal property involved as certified to under oath by the
parties concerned and conditioned upon the payment of any just claim that may be filed under
section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition
for letters of administration within two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a newspaper of

general circulation in the manner provided in the next succeeding section, but no extrajudicial
settlement shall be binding upon any person who has not participated therein or had no notice
thereof.

Extrajudicial settlement of the Agreement (Without court intervention)

-This is to provide the decedent’s heirs with a cost-efficient manner of settling the estate.

Rationale: When a person dies, without leaving obligations to be paid, heirs, whether of age or not,
are not bound to submit the property to a judicial administration and appointment of administrator are
unnecessary proceeding.

-Extrajudicial settlement is not mandatory or compulsory.

SECTION 1

-Allows heirs to divide the estate among themselves as they me see fit, or resort to an ordinary
action of partition, and it does not compel them to do so if they have good reasons to take different
course of action.

REQUISITES FOR EXTRAJUDICIAL SETTLEMENT

a. Decedent died intestate

b. Left no debts at the time of settlement
c. Heirs are all of legal age or minors are represented by legal guardians or legal
representative
d. Settlement is made in a public instrument
e. Publication of extrajudicial settlement in a newspaper of general circulation in the province
once a week for three consecutive weeks.
f. Filing of the bond equivalent to value of personal property posted with Registry of Deed

-All of these is applicable only if the decedent left no will. It will be contrary to public policy if
decedent left a will and heirs still have extrajudicial settlement

MODES

Case called in recit-

Portugal vs Portugal beltran

IL Gato Case
VDA de Reyes case

Hernandez vs andal

AFFIDAVIT OF SELF ADJUIDCAITON BY THE SOLE HEIR

 If sole heir, it suffices that the heir execute an affidavit of self-adjudication of the whole estate
 If more than 1 heir,
a. Deed of extrajudicial settlement is resorted to if no disagreement among heirs
b. If there is disagreement, action for partition (JUDICIAL)

settlement must be made in a public instrument

Can heirs enter into oral partition? YES. Section one did not mention that a written instrument or
other formality is an essential requisite to the validity of partition.

BUT it must be filed with the registry of Deeds. Failure to file does not affect its validity when there
are no creditors or no rights of creditors are involve.

It must also be published in the general circulation once a week for three consecutive weeks.

EXTRAJUDICILA SETTLEMENT- WHOM BINDING

-Person who did not participate nor had notice of extrajudicial settlement will not be bound thereby.

-Publication does not constitute constructive notice to the hr=eirs who had no knowledge or did no
take part in it because the same was no noticed after the fact of execution.

-There is also a need to file a bond, as a condition precedent to the filing of the public instrument.

-The amount of bond is equivalent to the value of personal property involved

-It must be certified by the parties involve

-Required only when personal property is involved.

-Real estate is subject to lien in favor of the creditors or other persons for two years from the
distribution of estate, notwithstanding any transfers of real estate that may have been made.

Disputable presumption of no debt It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two (2) years after the death of the
decedent [Sec. 1, Rule 74]

Section 2. Summary settlement of estate of small value. — Whenever the gross value of the estate
of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos,
and that fact is made to appear to the Court of First Instance having jurisdiction of the estate by the
petition of an interested person and upon hearing, which shall be held not less than one (1) month
nor more than three (3) months from the date of the last publication of a notice which shall be
published once a week for three (3) consecutive weeks in a newspaper of general circulation in the
province, and after such other notice to interest persons as the court may direct, the court may
proceed summarily, without the appointment of an executor or administrator, and without delay, to
grant, if proper, allowance of the will, if any there be, to determine who are the persons legally
entitled to participate in the estate, and to apportion and divide it among them after the payment of
such debts of the estate as the court shall then find to be due; and such persons, in their own right, if
they are of lawful age and legal capacity, or by their guardians or trustees legally appointed and
qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the
portions of the estate so awarded to them respectively. The court shall make such order as may be
just respecting the costs of the proceedings, and all orders and judgments made or rendered in the
course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it
involves real estate, shall be recorded in the proper register's office.

-What summary procedure means(no formalities for speedy deposition)

Section 3. Bond to be filed by distributees. — The court, before allowing a partition in accordance
with the provisions of the preceding section, my require the distributees, if property other than real is
to be distributed, to file a bond in an amount to be fixed by court, conditioned for the payment of any
just claim which may be filed under the next succeeding section.

Purpose of bond

What is judicial partition

Spuses villafria vs lazo

Section 4. Liability of distributees and estate. — If it shall appear at any time within two (2) years
after the settlement and distribution of an estate in accordance with the provisions of either of the
first two sections of this rule, that an heir or other person has been unduly deprived of his lawful
participation in the estate, such heir or such other person may compel the settlement of the estate in
the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation.
And if within the same time of two (2) years, it shall appear that there are debts outstanding against
the estate which have not been paid, or that an heir or other person has been unduly deprived of his
lawful participation payable in money, the court having jurisdiction of the estate may, by order for
that purpose, after hearing, settle the amount of such debts or lawful participation and order how
much and in what manner each distributee shall contribute in the payment thereof, and may issue
execution, if circumstances require, against the bond provided in the preceding section or against
the real estate belonging to the deceased, or both. Such bond and such real estate shall remain
charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after
such distribution, notwithstanding any transfers of real estate that may have been made.

-remedy of deprived heir

Section 5. Period for claim of minor or incapacitated person. — If on the date of the expiration of the
period of two (2) years prescribed in the preceding section the person authorized to file a claim is a
minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim
within one (1) year after such disability is removed.

RULE 75. PRODUCTION OF WILL, ALLOWANCE OF WILL

NECESSARY
(Sections 1 to 5)
Section 1. Allowance necessary. Conclusive as to execution. — No will shall pass either real or
personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive as to its due execution.

WILL is defined: as an act whereby a person is permitted, with the formalities prescribed by law to
control and ascertain degree the disposition of this estate, to take effect after his date.

kinds of will which a testator may execute

a. Notarial Will- acknowledge before the notary public by the testator and the attesting
witnesses
b. Holographic will- Article 810 of the CC definition: entirely written, dated, and signed by
the testator himself. (requires no attestation of witnesses.

Interpretation of wills

-when there is uncertainty in the face of the will, and application of the provisions, the intention of the
testator is to be ascertained from word of the will, taking into consideration the circumstances under
which it is made.

Note: will cannot be subject to a compromise agreement, because it would defeat its very purpose.

Allowance of will is conclusive as to its due execution

Probate- refers to a judicial act whereby an instrument is adjudged valid and is ordered to be
recorded. It is a method of establishing the proper execution of an instrument and giving notice of its
contents. Its purpose is to settle all the questions concerning the capacity of the testator and proper
execution of witnessing of his last will and testament.

When court determines due execution of will, it means:

a. The formalities of law have been complied with

b. Capacity of the testator has been established
c. The will is genuine

Probate of will is mandatory

-right of a person to dispose a property is invalid or nugatory unless there is a probate of the will

Note:

-requirement of probate is not limited to instruments designated as wills. But as long as instrument or
document involves the disposition of estate.

Nature of Probate proceeding

- Probate of will is a proceeding in rem (against a thing," which refers to a court's power to
adjudicate matters directed against property). Because it binds the whole world by virtue
of the publication of the petition.
Effect of probate

-For a will to take effect

Intrinsic validity

Gen rule: Probate court’s authority is limited only to the extrinsic validity of the will, due execution
thereof, the testator’s testamentary capacity and the compliance with the requisite or solemnities
prescribed by law.

How will is examined:

1. Testamentary capacity
Soundness of the mind: 3 important considerations
a. Nature of the estate- testator must have fairly accurate knowledge of what he owns
b. Objects of bounty- testator should know under ordinary circumstances who is his
relatives in the most proximate degrees.
c. Character of testamentary act- He must also know the document being executed is
gratuitously disposed of one’s property and shall take upon death, which is the very
nature of the will. And the extrinsic validity of will requires a careful consideration of
whether the formalities and solemnities have been complied with.

Note: Jurisprudence provides for an exception where the court may look into intrinsic validity of a
will

- When a will is void on face value, the probate court may disregard passing on the extrinsic
validity of the will for practical considerations?.

Section 2. Custodian of will to deliver. — The person who has custody of a will shall, within twenty
(20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction,
or to the executor named in the will.

Duties of a custodian

Custodian- refers to a person who receives a will woth knowledge, or ough to have known that he
was receiving custody of a will.

Note: Mere possession of a will does not make the holder a custodian of a will. A custodian is
chosen by the testator in advance, and entrusted with the custody fo a will by mutual agreement with
the testator.

Relationship: Bailor- Bailee relationship, Custodian is bailee, he is obliged to keep and preserve the
will safely for the benefit of the testator until latter’s death. Testator is the bailor, may order the return
of the will on demand.

Custodian duty:

a. Must keep and preserved the will safely

b. Keep its contents inviolate
c. Must not reveal its contents to anyone
 d. Upomm testator’s death, must deliver the will either to clerk of court where decedent resides
or to executor named in the will. (to ensure discovery will and discourage concealment)

Failure of custodian to present the will to court within period gvern in the rule, does not preclude its
probate.

Section 3. Executor to present will and accept or refuse trust. — A person named as executor in a
will shall, within twenty (20) days after he knows of the death of the testate, or within twenty (20)
days after he knows that he is named executor if he obtained such knowledge after the death of the
testator, present such will to the court having jurisdiction, unless the will has reached the court in any
other manner, and shall, within such period, signify to the court in writing his acceptance of the trust
or his refusal to accept it.

Duties of executors

-given 20 days from either knowledge of the testator’s death or knowledge that one has been named
as executor to present the will to the court having jurisdiction.

Section 4. Custodian and executor subject to fine for neglect. — A person who neglects any of the
duties required in the two last preceding sections without excused satisfactory to the court shall be
fined not exceeding two thousand pesos.

Section 5. Person retaining will may be committed. — A person having custody of a will after the
death of the testator who neglects without reasonable cause to deliver the same, when ordered so to
do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the
will.

-Here the court must be acting in the exercise of its jurisdiction over the admisnitration of the
estate of the deceased person.

If no pending case: Court must require the existence of petition, information or affidavit before
of such character to make an action under the provision.

RULE 76. ALLOWANCE OR DISALLOWANCE OF WILL

(Sections 1 to 13)

Section 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in
a will, or any other person interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the same be in his possession
or not, or is lost or destroyed.

The testator himself may, during his lifetime, petition the court for the allowance of his will.

Who may file petition for probate

a. Executor
b. Devisee (need not to e relative)
c. Legatee (Need not to be relative)
 d. Any other person interested in the estate (one who will benefit, such as heir, or one who has
a claim such as a creditor)
e. Testator himself (Before his death, petition the court for its allowance)

When will may be probated

-After the death of the testator

-During lifetime of testator, by himself

Reason: will lessen the number of contest upon the only questions that may remain for the courts to
decide afte rtestaor’s death will refer to the intrinsic validity of the testamentary disposition.

-testator can still alter or revoke the will even the will has been probated during his lifetime. He can
also make a new will.

Section 2. Contents of petition. — A petition for the allowance of a will must show, so far as known
to the petitioner:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, legatees, and devisees of the
testator or decedent;

(c) The probable value and character of the property of the estate;

(d) The name of the person for whom letters are prayed;

(e) If the will has not been delivered to the court, the name of the person having
custody of it.

But no defect in the petition shall render void the allowance of the will, or the issuance of letters
testamentary or of administration with the will annexed.

Contents of Petition

a. Testator’s death
b. Residence at time of death
c. Place where testator left estate, if he is non resident
d. The will has been delivered to court and is in the possession thereof, unless not yet
delivered
e. The value of estate to determine the court with jurisdiction

Jurisdictional facts
-refer to fact of death of decedent, his residence at the time of his death in the province where the
probate court is sitting, or if he is an inhabitant of a foreing country, the estate he left in such
province.

Section 3. Court to appoint time for proving will. Notice thereof to be published. — When a will is
delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court
shall fix a time and place for proving the will when all concerned may appear to contest the
allowance thereof, and shall cause notice of such time and place to be published three (3) weeks
successively, previous to the time appointed, in a newspaper of general circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by the
testator himself.

2 WAYS HOW PROBATE COURT ACQUIRE JURISDICTION OVER SETTLEMENT

PROCEEDINGS:

a. Attachment of a copy of the will to the petition

b. Delivery of the will to the court

Note

-Mere delivery is sufficient, even if no petition for allowance is as yet filed.

- If petition for probate is made after deposit of the will, The petition is deemed to relate back to the
time when the will was delivered.

Notice of Hearing 2 obligations after the will is delivered to the court or a petition for its
allowance is filed:

1. Fix the time and place for providing the will when all concerned may appear to contest its
allowance
2. Cause the notice of the time and place to be published in for three successive weeks in a
news paper of general circulation on the province.

Section 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. — The court
shall also cause copies of the notice of the time and place fixed for proving the will to be addressed
to the designated or other known heirs, legatees, and devisees of the testator resident in the
Philippines at their places of residence, and deposited in the post office with the postage thereon
prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of
the notice must in like manner be mailed to the person named as executor, if he be not the
petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be
known. Personal service of copies of the notice at lest (10) days before the day of hearing shall be
equivalent to mailing.

If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.

- When settlement is initiated by person other than testator, the court is required to send
notice of the time and place of hearing to the designated or other known heirs, legatees, and
devisees who are resident of the PH.
- Only when they are known and their residence are also known

ALABAN VS CA

FACTS:
- Respondent Francisco Provido filed a petition for the probate of the Last Will and
Testament of the late Soledad Provido Elevencionado a
- Alleging that he was the heir of the decedent and the executor of her will.
- The RTC allowed the probate of the will and directed the issuance of letters
testamentary to respondent
- Petitioners after 4 months filed a motion for the reopening of the probate
proceedings a
- Claiming that they are the intestate heirs of the decedent.
- The RTC denied the motion and held that the petitioners were deemed notified of
the hearing by publicaction.
- And that its decision was already final and executory even before petitioners’
filing of the motion to reopen
- I appears that one of the peittioners, Fores, who is a niece of Soledad, filed a petition for
letters of administration with the RTC of Gen San, claiming that Soledad died intestate
without any issue, survived by five groups of collateral heirs, Flores, armed with special
power of Atty, prayed for her appointment as administrix of the estate of the decedent.
- RTC dismissed the petition for lack of jurisdiction stating that Ilo-Ilo has jurisdiction since
venue for a petition for the settlement of the estate of decedent is the place where the
decedent died.

ISSUE: WON there was a lack of jurisdiction.

HELD: NO, there was no lack of jurisdiction. Petitioners in this case are mistaken in
asserting that they are not or have not become parties to the probate proceedings.
According to the Rules, notice is required to be personally given to known heirs,
legatees, and devisees of the testator.

The will shows that only Respondent Fransisco was instituted as the sole heir of the
decedent. Petitioners, as nephews and nieces of the decedent, are neither
compulsory nor testate heirs who are entitled to be notified of the probate
proceedings under the Rules.

Respondent had no legal obligation to mention petitioners in the petition for probate,
or to personally notify them of the same.

Besides, assuming arguendo that petitioners are entitled to be so notified, the

purported infirmity is cured by the publication of the notice. After all, personal notice
upon the heirs is a matter of procedural convenience and not a jurisdictional
requisite.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any
other person interested in the estate may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed.
 Thus, even though petitioners were not mentioned in the petition for probate, they
eventually became parties thereto as a consequence of the publication of the notice
of hearing. As to the issue of petitioners not availing of other remedies first: As
parties to the probate proceedings, petitioners could have validly availed of the
remedies of motion for new trial or reconsideration and petition for relief from
judgment. In fact, petitioners filed a motion to reopen, which is essentially a motion
for new trial, with petitioners praying for the reopening of the case.

For failure to make use without sufficient justification of the said remedies available
to them, petitioners could no longer resort to a petition for annulment of judgment;
otherwise, they would benefit from their own inaction or negligence.

Section 5. Proof at hearing. What sufficient in absence of contest. — At the hearing compliance with
the provisions of the last two preceding sections must be shown before the introduction of testimony
in support of the will. All such testimony shall be taken under oath and reduced to writing. It no
person appears to contest the allowance of the will, the court may grant allowance thereof on the
testimony of one of the subscribing witnesses only, if such witness testify that the will was executed
as is required by law.

In the case of a holographic will, it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. In the absence of any such competent witness, and if the court deem it
necessary, expert testimony may be resorted to.

Petitioner should present the following:

a. Evidence that the order of the court fixing time and date for proving that the will have been
published for three consecutive weeks prior to time appointed
b. Evidence that notice of such hearing has been served upon known heirs, legatees and
devisees of the resident testator at least 20/;10 days prior
c. If petitioner not executor, evidence that notice has been served upon executor, if his or her
place is known.
d. Testimonies of subscribing witnesses in support of will.

Required testimony

-If no one contest the petition for probate, as a general rule: the testimony of one witness is sufficient
for the court to admit the will to probate.

The court may resort tso expert testimony if there is no competent person who can testify to the
foregoing.

Section 6. Proof of lost or destroyed will. Certificate thereupon. — No will shall be proved as a lost
or destroyed will unless the execution and validity of the same be established, and the will is proved
to have been in existence at the time of the death of the testator, or is shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless
its provisions are clearly and distinctly proved by at least two (2) credible witnesses. When a lost will
is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal
of the court, and the certificate must be filed and recorded as other wills are filed and recorded.
Proof of lost or destroyed will

-May be proved by a photocopy, coupled with testimony of subscribing witnesses

-For Holographic Will

General Rule: will cannot be probated because the best and only evidence is the handwriting of the
testator in said will. However in case of Bonilla vs Aranza, a photocopy of the will that was lost may
be presented in lieu of original that was lost

Will, whether notarial or holographic may only be prived upon concurrence of the following
requisites:

a. Its execution and validity are established

b. It must have been in existence at the time of the testator’s death, or shown to have been
fraudulently or accidentally destroyed during lifetime of the testator without his knowledge
c. Its provisions must be clearly and distinctly proved by at least two credible witnesses.

Section 7. Proof when witnesses do not reside in province. — If it appears at the time fixed for the
hearing that none of the subscribing witnesses resides in the province, but that the deposition of one
or more of them can be taken elsewhere, the court may, on motion, direct it to be taken, and may
authorize a photographic copy of the will to be made and to be presented to the witness on his
examination, who may be asked the same questions with respect to it, and to the handwriting of the
testator and others, as would be pertinent and competent if the original will were present.

Section 8. Proof when witnesses dead or insane or do not reside in the Philippines. — If the
appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that

none of them resides in the Philippines, the court may admit the testimony of other witnesses to
prove the sanity of the testator, and the due execution of the will; and as evidence of the execution
of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of
any of them.

Section 9. Grounds for disallowing will. — The will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature thereto.
Section 10. Contestant to file grounds of contest. — Anyone appearing to contest the will must state
in writing his grounds for opposing its allowance, and serve a copy thereof on the petitioner and
other parties interested in the estate.

Section 11. Subscribing witnesses produced or accounted for where will contested. — If the will is
contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil
Code of the Philippines, if present in the Philippines and not insane, must be produced and
examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the
court. If all or some of such witnesses are present in the Philippines but outside the province where
the will has been filed, their deposition must be taken. If any or all of them testify against the due
execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility,
the will may nevertheless, be allowed if the court is satisfied from the testimony of other witnesses
and from all the evidence presented that the will was executed and attested in the manner required
by law.

If a holdgraphic will is contested, the same shall be allowed if at least three (3) witnesses who know
the handwriting of the testator explicitly declare that the will and the signature are in the handwriting
of the testator; in the absence of any competent witnesses, and if the court deem it necessary,
expert testimony may be resorted to.

Section 12. Proof where testator petitions for allowance of holographic will. — Where the testator
himself petitions for the probate of his holographic will and no contest is filed, the fact that the affirms
that the holographic will and the signature are in his own handwriting, shall be sufficient evidence of
the genuineness and due execution thereof. If the holographic will is contested, the burden of
disproving the genuineness and due execution thereof shall be on the contestant. The testator to
rebut the evidence for the contestant.

Section 13. Certificate of allowance attached to prove will. To be recorded in the Office of Register
of Deeds. — If the court is satisfied, upon proof taken and filed, that the will was duly executed, and
that the testator at the time of its execution was of sound and disposing mind, and not acting under
duress, menace, and undue influence, or fraud, a certificate of its allowance, signed by the judge,
and attested by the seal of the court shall be attached to the will and the will and certificate filed and
recorded by the clerk. Attested copies of the will devising real estate and of certificate of allowance
thereof, shall be recorded in the register of deeds of the province in which the lands lie.

RULE 77. ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES

AND ADMINISTRATIONOF ESTATE THEREUNDER
(Sections 1 to 4)
Cases: Suntay vs. Suntay 95 PHIL 500
Fluemer vs. Hix 54 PHIL 610

RULE 78. LETTERS TESTAMENTARY AND ADMINISTRATION,WHEN

AND TO WHOM ISSUED
(Sections 1 to 6)
Case: Nittscher vs. Nittscher 537 SCRA 681