Special Proceedings Powerpoint Reviewer Presentation Rule 75 to 80

7/28/2019 Special Proceedings Powerpoint Reviewer Presentation Rule 75 to 80

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Special Proceedings



What is a Special

Proceeding?

Remedy Party

Establish

Status

Seeks

Right

Particular Fact



What is Succession?

Mode of acquisition Property

RightsObligations

Transmitted Death

By Will or Operation of Law

Value



What is a Civil Action?

Party sues another

For the enforcement or protection of a right

The prevention or redress of a wrong



What is a Criminal Action?

State prosecutes

Person

Act or Omission Punishable by Law



What is a Will?

PERSON

PERMITTED BY THE FORMALITIES OF THE LAW

CONTROL TO A CERTAIN DEGREE THE DISPOSITION OF HIS ESTATE

TO TAKE EFFECT AFTER HIS DEATH



What are the kinds of

wills?

Holographic and Notarial Will



What is a Holographic

Will?

A holographic will must be entirely written, dated, and signed

by the hand of the testator himself. It is subject to no other

form, and may be made in or out of the Philippines, and need

not be witnessed (Article 810, Civil Code).



What is a Notarial Will?

Art. 805. Every will, other than a holographic will, must be subscribed at the

end thereof by the testator himself or by the testator’s name written by some

other person in his presence, and by his express direction, and attested and

subscribed by three or more credible witnesses in the presence of the testator

and of one another.

The testator or the person requested by him to write his name and the

instrumental witnesses of the will, shall also sign, as aforesaid, each and

every page thereof, except the last, on the left margin, and all the pages shall

be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is

written, and the fact that the testator signed the will and every page thereof, or

caused some other person to write his name, under his express direction, in

the presence of the instrumental witnesses, and that the latter witnessed andsigned the will and all the pages thereof in the presence of the testator and of

one another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the

testator and the witnesses. The notary public shall not be required to retain a

copy of the will, or file another with the office of the Clerk of Court.



Form of a Notarial Will1. In Writing;

2. Executed in a language or dialect known to the testator;

3. Subscribed by the testator himself or by the testator’s name written by some other person in his presence and

under his express direction at the end thereof, at the presence of witnesses;

4. Attested to and subscribed by at least 3 credible witnesses in the presence of the testator and of one another;5. Each and every Page must be signed by the testator or by the person requested by him to write his name, and

by instrumental witnesses in the presence of each other, on the left margin;

6. Each and every page of the will must be Numbered correlatively in letters placed on the upper part of each

page;

7. Must contain an Attestation clause, stating the following:

a. The number of pages of the will,b. Fact that the testator signed the will and every page in the presence of witnesses, or caused some other

person to write his name under his express direction, c. All witnesses signed the will and every page thereof in the

presence of the testator and of one another;

8. Must be acknowledged before a Notary public.

What are the special requirements if the testator is deaf or mute?

a. If the testator is able to read, he must personally read the will; or

b. If the testator is unable to read, he must designate two persons to read it and communicate to him, in some

practicable manner, the contents thereof. (Art. 807; see Rabuya, Civil Law Reviewer, p. 559)

Note: The law does not require that the persons reading and communicating the contents of the will be theinstrumental witnesses. (id., p. 560)

What are the special requirements if the testator is blind?

The will shall be read to him twice, once by one of the subscribing witnesses, and another time by the notary

public before whom the will is acknowledged. (Art. 808; id.)

Note: Art. 808 applies not only to blind testators but also to those who, for one reason or another, are incapable of

reading their wills, either because of poor or defective eye sight or because of illiteracy. (id.)



What is Probate?

A SPECIAL PROCEEDING TO ESTABLISH THE

VALIDITY OF A WILL



Rule 72

Section 1 Subject matter of specialproceedings

i) Change of name

j) Voluntary dissolution of corporationsk) Judicial approval of voluntary recognition of

minor natural children

l) Constitution of family home

m) Declaration of absence and death

n) Cancellation or correction of entries in the

civil registry



Rule 72

Section 2. Applicability of rules of civilactions.

In the absence of special provisions, the rulesprovided for in ORDINARY ACTIONS shall

be, as far as practicable, applicable in

SPECIAL PROCEEDINGS.



Rule 73 Venue and Process

Inhabitant of the Philippines at the time of his death = RTC where he

resides at the time of his death

Inhabitant of a foreign country = RTC of any province in which he

had estate

SECTION 1.

Exclusionary Rule: The court first taking cognizance of the

settlement of the estate of a decedent, shall exercise jurisdiction tothe exclusion of all other courts.




Inhabitant of the Philippines at the time of his death = RTC where he

resides at the time of his death

Inhabitant of a foreign country = RTC of any province in which he

had estate

SECTION 1. Where estate of deceased person settled

Exclusionary Rule: The court first taking cognizance of the

settlement of the estate of a decedent, shall exercise jurisdiction tothe exclusion of all other courts.




File in RTC Beginning 2004

In Metro Manila >P 400,000

Outside Metro Manila >P 300,000

File in MTC Beginning 2004

In Metro Manila <= P 400,000

Outside Metro Manila <= P 300,000




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.




What is the difference between absolute community of property and

conjugal property?




SECTION 3. Process

RTC may issue warrants and if a person does not

perform an order of judgment it may issue a warrant for

his apprehension and imprisonment.




SECTION 4. Presumption of Death

Sec. 4. Presum ption of death. - For purposes of

settlement of his estate, a person shall be presumed

dead if absent and unheard from for the periods fixed inthe 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.




SECTION 4. Presumption of Death

Under the Civil Code, the absentee shall be presumed

dead for the prupose of opening his succession after an

absence of 10 years, but if he disappeared after the ageof 75 years, an absence of 5 years is sufficient (Art.

390). If, however, the absentee was on board a vessel

lost during a sea voyage, or an airplane which is

missing, or was in the armed forces and has taken part

in a war, or has been in danger of death under other

circumstances, only 4 years is required (Art. 391).



Rule 74 Summary Settlement of Estates

SECTION 1. Extrajudicial settlement by agreement between heirs.




SECTION 2. Summary settlement of estates of small value.




SECTION 3. Bond to be filed by distributees.




SECTION 4. Liability of distributees and estate.




SECTION 5. Period for claim of minor or incapacitated person.



Rule 75 Production of Will

SECTION 1. Allowances necessary; Conclusive as to execution.




SECTION 2. Custodian of will to deliver.




SECTION 3. Executor to present will and accept or refuse trust.




SECTION 4. Custodian and executor subject to fine for neglect.




SECTION 5. Person retaining will may be committed.



Rule 76 Allowance or Disallowance of

Will

SECTION 1. Who may petition for the allowance of will.

Any executor, devisee, or legatee named in a will.

Any other person interested in the estate.

The testator himself may, during his lifetime, petition the court

for the allowance of his will.




Will

SECTION 2. Contents of Petition.

(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.




Will

SECTION 3. Court to appoint time for proving will.




Will

SECTION 4. Heirs, devisees, legatees, and executors to be notified

by mail or personally.




Will

SECTION 4. Heirs, devisees, legatees, and executors to be notified

by mail or personally.

Who are the compulsory heirs?

The following persons are compulsory heirs entitled to a legitime:

a.) Legitimate children (including legitimated and adopted children)

and descendants, with respect to their legitimate parents and

ascendants;b.) In default of the foregoing, legitimate parents and ascendants,

with respect to their legitimate children and descendants;

c.) The widow or widower; and

d.) The Illegitimate children.




Will

SECTION 5. Proof at hearing.




Will

SECTION 6. Proof of lost or destroyed will.




Will

SECTION 7. Proof when witnesses do not reside in province.




Will

SECTION 8. Proof when witnesses dead or insane or do not reside

in the Philippines.




Will

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 makea 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.




Will

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.




Will

SECTION 11. Subscribing witnesses produced or accounted for

where will contested.




Will

SECTION 12. Proof where testator petitions for allowance of

holographic will.




Will

SECTION 13. Certificate of allowance attached to proved will.



Rule 77 Allowance of Will Proved Outside of

Philippines and Administration of Estate

Thereunder

SECTION 1. Will proved outside Philippines may be allowed here.





Thereunder

SECTION 2. Notice of hearing for allowance





Thereunder

SECTION 3. When will allowed, and effect thereof.





Thereunder

SECTION 4. Estate, how administered.



Rule 78 Letters Testamentary and of

Administration, When and Whom Issued

SECTION 1. Who are incompetent to serve as executors or administrators.





SECTION 2. Executor of executor not to administer estate.





SECTION 3. Married women may serve.





SECTION 4. Letters testamentary issued when will allowed.





SECTION 5. Where some coexecutors disqualified others may act.





SECTION 6. When and to whom letters of administration granted.

R l 79 O i I f L tt



Rule 79 Opposing Issuance of Letters

Testamentary, Petition and Contest for

Letters of Administration

SECTION 1. Opposition to issuance of letters testamentary; Simultaneous

petition for administration.

R l 79 O i I f L tt






SECTION 2. Contents of petition for letters of administration

R l 79 O i I f L tt






SECTION 3. Court to set time for hearing. Notice thereof.

R l 79 O i I f L tt






SECTION 4. Opposition to petition for administration.

R l 79 O i I f L tt






SECTION 5. Hearing and order for letters to issue.

R l 79 O i I f L tt






SECTION 6. When letters of administration granted to any applicant.



Rule 80 Special Administrator

SECTION 1. Appointment of special administrator.




SECTION 2. Powers and duties of special administrator.




SECTION 3. When powers of special administrator cease; Transfer of

effects; Pending suits.

Special Proceedings Powerpoint Reviewer Presentation Rule 75 to 80

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