Spec+Pro+Lecture

7/30/2019 Spec+Pro+Lecture

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Remedial Law Review Atty. Tranquil Salvador Special Proceedings

Jeric Angeles 4B 2010-2011

The lease rentals sought to be claimed was for the period of April 1993 to December

1998 but the decedent passed away in 1989. So there was a question here that they were

trying to answer on transmissibility. The general rule is that heirs are bound by the

contracts entered into by their predecessors. Except when the rights or obligations are

not transmissible by nature, by stipulation or by provision of law. The SC said that it is

the general rule but the lease rentals accrued after his death therefore the estate should

not be held liable.

Sale of real property, should it be with the consent of the probate court? It is a clear

provision of law. But there is a lot of jurisprudence on this matter. One jurisprudence is

the case of Lee vs. RTC of QC. 1.) Any disposition of estate property by an administrator

or prospective heir, pending final adjudication, requires court approval. No real property

can be disposed with court approval. 2.) Any unauthorized disposition can be annulled

by the probate court and no need of a separate action. Can the intestate or probate court,

considering that it could annul the sale, execute its order nullifying or annulling the sale?

Are we clear? Diniklara niya null and void , can they implement and execute? Do you

need a separate court to implement it? According to this case, the SC said we see no

reason why it cannot. Enforcement is a necessary adjunct of the intestate or probate

courts power to annul or unauthorized or fraudulent. The probate court can declare and

execute it.

Rule 73

What is important here is the venue. Where is the venue of the action? If the decedent is

a resident of the Philippines the venue for estate cases will be in the place were he last

resided, where he resided at the time of his death. In one case decided by the court, the

deceased has a residence in Bacolod but during the latter part of his life, because of his

deteriorating physical condition, he had to stay in QC. And for that reason, for the

purposes of venue, for an action for probate, it should be filed in QC.

Let us now look at settlement of estate of a person presumed dead. If a person presumed

dead is latter found to be alive, how will we deal with the estate of that person? He is

entitled to the balance of his estate after payment of his debts. The balance may be

recovered by a mere motion in the same proceeding that declared him presumptively

dead.

What if the deceased is a resident of a foreign country but he has properties scattered in

the Philippines. Take note we didnt say foreigner because as a rule a foreigner cannot

acquire real property in the Philippines unless you acquire it by inheritance or you were

previously a natural born citizen. Where is the venue? In the place were the property is

located.

Rule 74

The most important is extra-judicial settlement. Memorize requisites. What are the

requisites? 1.) there is no will so the testator died intestate 2.) there are no debts 3.) and

if there are minors they are represented by guardians ad litem. So what do you mean by

extra-judicial partition? First, it could ei ther mean an extra-judicial settlement through a

public instrument duly notarized. Second, there can be an affidavit of self-adjudication.

Meaning you are only one heir, you adjudicate the entire estate in your name. Third, a

stipulation in a pending action for judicial partition is in Rule 69. Therefore, what does it

mean? In an action for a judicial partition the parties stipulate. The Commissioners were

no longer appointed. Hindi na umabot sa Commissioner. Nagkasundo sila. Ito partihan

natin. This is how well distribute. It falls under that. And all these extra-judicialsettlements of estate requires publication.

Do you need a bond for an extra-judicial settlement of an estate? Yes but only for

personal property. Can you still protest a distribution of the estate? If you are an omitted

heir, can you still contest? Yes. You can contest within a period of 2 years from the

distribution or settlement.

Rule 75

Allowance is conclusive as to due execution. And please remember this. I usually do not

recommend that you remember a motherhood statement but I would like you to

remember a motherhood statement this time. No will shall pass real or personal

property unless proved and allowed.

What is the duty of a custodian of a will? Within a period of 20 days after he knows thedeath of the testator. From the time of his knowledge of the death of the testator, what

should he do? 1.) Deliver the will to the court having jurisdiction 2.) or present it to the

executor named in the will.

Distinguish the probate of the will after the death of the testator and probate during his

lifetime. Can the will be probated during the lifetime of the testator? Yes. If it is after the

death of the testator, who can apply for the probate? Can the executor apply? Yes.

Administrator? Yes. Heir? Yes or any interested person. Of course if it is during the

lifetime of the testator, it is he who will apply. In terms of notices, should notices be given

to compulsory heirs if probate is after the death of the testator? Yes. If it is during the

lifetime of the testator? Yes. Should notice be given to the rest of the heirs by

publication? No if the probate is during the lifetime of the testator. But if it is after the

death of the testator, notice should be by publication not only to the compulsory heirsbut all the heirs.

Let us look at a situation wherein there is a probate of a will with no contest. Let us look

at a notarial will and a holographic will. If there is no contest in a notarial will how many

witnesses do you need? One subscribing witness. However if it is contested, the three

subscribing witnesses. How about in a holographic will? 1.) One witness who knows the

handwriting or the signature of the testator 2.) In the absence of a witness, an expert

witness.

Who may petition for the allowance of a will? 1.) executor, devisee, legatee or any other

person who is interested. 2.) the testator during his lifetime.


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Can a will lost or destroyed be proven? Remember, we discussed secondary evidence in

evidence. This has a special rule in special proceeding. Can you present secondary

evidence? Yes. 1.) to establish its existence 2.) you have to establish that it was

fraudulently or accidentally lost or destroyed 3.) you need 2 credible witnesses.

Rule 77Can a will proved outside of the Philippines be allowed in the Philippines? This is

answered by Rule 77. Yes. A will proved or allowed in a foreign country may be allowed

in the Philippines. It should be filed and recorded in the proper court. Before you are

misled by some provisions of the Rules in Special Proceedings, take note that

jurisdiction in estate cases is determined by the value of the estate. BP129 as amended

by RA 7691. That if the value of the estate exceeds 400,000 in Metro Manila, outside

Metro Manila 300,000, in the RTC. Not exceeding 400,000 in Metro Manila, and 300,000

outside Metro Manila, in the MTC. Take note that probate cases cannot be subject of

summary proceedings.

What will the court issue to prove or establish the allowance of a will? The court will

issue a certificate of allowance.

Who are incompetent to serve as executor or administrator? 1.)A minor. 2.)A person whois not a resident of the Philippines. 3.) Unfit to execute the duties of the trust by reason of

improvidence, want of understanding or integrity or by reason of conviction of an

offense involving moral turpitude.

To whom should letters of administration be granted? 1.) Surviving husband or wife or

next of kin or a person selected by them 2.) principal creditors 3.) persons they may

select

Rule 79

Can a petition for administration be opposed? Yes. Rule 79. For what reasons? 1.)

Incompetency of the person prayed for 2.) contestants own right to be the administrator

meaning the oppositor says I am the better one 3.) competent person named in the

opposition.

Rule 80

Lets us now look at a special administrator. Who is a special administrator? Let me first

touch on the case of Castillo vs. Gabriel. A special administrator is representative of the

decedent appointed by a probate court to care for and preserve his estate until an

executor or a general administrator is appointed. So you should note that the

appointment of a special administrator is momentary. A special administrator is under

the control, supervision and direction of the probate court. Looking at the provision, how

is it defined? A special administrator is appointed if there is delay in the appointment. So

unlike before just to preserve until a regular one is appointed, the present rule or the old

rules of 1964 which makes the new rule, also covers delay in granting letters

testamentary or administration including appeals on the allowance and disallowance of

wills can be basis for appointment of an administrator.

Rule 82

Can the letters of administration be revoked? Yes if the will is discovered. Even if there is

an administrator, if it is later discovered that there is a will, the letters of administration

will be revoked. Can it be revoked for other reasons? Yes if the administrator abscondsor he fails to render an accounting or if he becomes insane or unsuitable to discharge the

trust. Can he resign as an administrator? Yes. Can the executor or administrator have

access to partnership books? If you look at the provisions of Rule 84 Section 1, you would

know that it only covers partnership. It does not extend to a corporation. Why? Because

the corporations life will continue beyond the death of a stockholder. Even if you are the

majority stock holder, it will pass on by operation of law. Unlike in a partnership,

generally once a partner dies, the partnership is dissolved. Thats why the administrator

is given access to partnership books. Failure to comply with the order of the court, the

partner may be held liable in contempt. What is the reason? Failure to allow an

examination of the books.

Rule 86-87

Take note the coverage of Rule 86. What does it cover? It covers claims against the estateand this includes money judgments. What is the requirement in terms of notice? Thecourt shall issue a notice requiring all person shaving money claims against the estate to

file it with the office of the clerk of court. What is the period to file the claims against the

estate? A period not less than 6 months nor more than 12 months after the first

publication. General rule, Section 5, all claims must be filed within the time limited;

otherwise it will be forever barred. Exception: as counterclaims in any action that

executor or administrator may bring.

Claims against the executor or administrator. 1.) Recovery for any real or personal

property or an interest therein must be in the name of the executor or administrator. 2.)

Recovery for damages for an injury to a person or property which was caused by the

deceased during his lifetime can be in the name of the executor. There is another

motherhood statement in section 2, all other actions claims that survive, it is not against

the estate but against the executor or administrator. Where can you apply for recovery ofproperties which were transferred in fraud of creditors? Do you need a separate action

for that or can you file it in the probate court? You can do it in the probate court. But

class, take note that that is the primary duty of an administrator or executor. But what if

the executor or administrator refuses to file it? Can some other person recover? Yes, the

creditors can make the application but they should pay the expenses of the recovery and

give security.

Rule 88

Of course, the estate sometimes is left with debts. How should the debts be paid? From

where should the money be used for payment come from? 1.) from the personal estate

2.) real property not disposed of by will 3.) redemption over contingent claims. What is


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the time to pay the debts? Yes. It shall not exceed one year on the first instance, can be

extended for a period not more than 6 months.

Rule 89

I think I discussed earlier that any sale of property, especially real property must be with

the approval of the court, Rule 89 Section 2. Can the court authorize said mortgage or

encumbrance of realty to pay debts? Yes. But should there be reasons to apply for thesale of real property to pay debts? The reasons should be as follows: 1.) personal

property is not enough to pay the debt 2.) sale of personal property will injure the

business or the estate 3.) testator should not have made provisions regarding payment of

debts. There should always be an order from the court allowing or approving the sale or

mortgage.

Rule 90

Another important motherhood statement: no distribution shall be allowed until

payment of debt, funeral expenses, expenses of administration, allowances to the widow

and estate tax. And in taxation, your estate tax should be paid within 6 months from the

time of death.

Rule 91Who can institute an action for escheat? The Solicitor General in behalf of the Republic.You file it in court where the deceased last resided at the time of his death or where he

has property. Can you still claim if you are an heir who latter found out that the property

has been escheated? Yes within the period of 5 years from the date of such judgment. In

the case of Republic vs. CA it was said that escheat is one of the incidence of sovereignty.

The procedure by which escheated property may be recovered is generally prescribed by

law. Who is an interested party? Can an interested party recover? Rule 91, Sec.4. The

question is can the respondent be not an heir but allegedly a done and have the

personality to be a claimant within the purview of Sec.4? Yes. Any person alleging who

has a direct right or interest with the property sought to be escheated is likewise an

interested party and can thus appear and oppose the petition. What is the effect of a

judgment in escheat proceeding? According to the court, a judgment in an escheat

proceedings when rendered by a court of competent jurisdiction is conclusive on all

persons with actual or constructive notice but not against those who are not parties orprivies

Rule 92

Where will you institute an action for guardianship? Where the minor or incompetent

resides. In what particular court? Who may petition for appointment of a guardian? Can a

relative petition? Yes. A friend? Yes. Can the minor himself petition? Yes if he is at least

14 years old. Should a parent file petition to become a legal guardian? The provision,

Sec.7, has been amended. Now, it is P50,000. Now, when you talk about guardianship,

does it mean you just have to take care of the ward? Or not only to take care of the ward

but to manage the properties of the ward? Yes. Would it also be possible to be appointed

as the guardian of the properties in the Philippines of the ward? Yes. Can a guardian sell

or encumber properties of the ward? Yes. For what reasons? 1.) the property of the

estate is insufficient to maintain the ward and his family 2.) for the education of the ward

3.) for the benefit of the ward. In the case of Bansil vs. Delos, the question here is who

should be appointed as a guardian? Is it the natural mother or the grandmother? The

question here is who has the preferential right to be appointed as the guardian. The

grandmother contends that she has substitute parental authority over the minor. But

according to the law, a grandmother can have substitute parental authority in case ofdeath, absence or unsuitability of a natural parent.

Rule 98

Who is a trustee? A trustee has been named to carry into effect the provisions of a will or

a written instrument. When can he be appointed or confirmed? In the same court as the

probate court.

Adoption and Cancellation of Entry in Civil Registry

There was a child who was left outside a house of a couple. Having noticed that there was

no one around, they decided to adopt the child. But what they did was not legal adoption.

They caused or executed or filled in details of a birth certificate and put themselves as

the natural parents. The child grew up and when she applied for a VISA for the US, she

was declined. The reasons was she was not the natural child of the supposed parentsbecause they discovered that the mother cannot bear a child. What actions can you taketo validate the adoption? 1.) Cause the cancelation of entry in the civil registry because it

appears there that there was a live birth. Where do you need to file it? Who are the

parties in the said case? Let me call your attention to the case of Serulla vs. Delantar. The

venue is the place where the entry was made or recorded. Who should be impleaded?

You should implead the civil registrar, the Office of the Solicitor General and other

indispensible parties, you should include not only the declared father but also the child

as well. Together with the paternal grandparents if any as their hereditary rights will be

adversely impaired. If we are talking about cancellation or correction, hereditary rights

will be affected. You need to implead all interested parties. 2.) As you know in ordinary

adoption, you have to get the consent of the natural parents if they are alive. But in this

case, there no natural parents. What will you do? Do you need a judicial declaration that

the child is neglected or abandoned? Do you need a court proceeding? There is a new

law. You go to the DSWD to get a certification. And any questions must be appealed to theSecretary. It is not judicial. Then you can adopt the child.

What if the adopter is a resident of a foreign country? Because the rule is a Filipino can

adopt. A foreigner residing in the Philippines can adopt for at least 3 years. What is the

age difference between the adopter and the adoptee? 16 years. Of course I do not intend

to discuss the exceptions. You will go through inter-country adoption. What happens?

There will be an interview by a social service employee. There will be a matching. It does

not necessarily follow that the child that you want will be the child that you will get.

Where should you institute the action for adoption? It should be instituted where the

adopter resides.


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Rule 102

Let me start with the case of Martinez vs. Mendoza to give you an idea on what can be the

basis of an action for habeas corpus. Is simple disappearance sufficient? He was last seen

drinking with three individuals and then he cannot be found. Can that be a basis for

habeas corpus? No. When you talk of forceable taking and disappearance, that is not the

basis for an application of writ of habeas corpus. It should be arrest and detention. Therebeing no allegation of arrest and detention, the proper remedy is not habeas corpus. The

proper remedy is criminal investigation and eventually criminal action. Kindly take note

that when you talk of writ habeas corpus, you should bring the body of the person in

court in the literal sense. Also take note that in habeas corpus, the arrest and detention

were determined illegal or unlawful. Because if it was due to a valid warrant of arrest or

under Rule 112 Sec.5, then it is a valid detention.

If you have been detained for the longest time and the case has not been moving and you

ask for dismissal of the case due Rule 119violations of speedy trail/speedy disposition

under the Constitution, and the court denied it, you can apply for a writ of habeas corpus.

You recall our discussion on post-conviction application of habeas corpus wherein under

the DNA Rule, when after the clinical investigation of the DNA, you were latterdiscovered that in fact the convict was not the one who committed the offense, you canapply for a petition for a writ of habeas corpus on the court which rendered the

judgment because the detention is now unlawful.

A petition for habeas corpus can be filed with the RTC, CA, or SC. There is also what you

call writ of habeas corpus on custody of minors. It is different in terms of procedure.

Unlike in regular habeas corpus where there is no pre-trial, in habeas corpus on custody

of minors there is pre-trial.

The writ of amparo can be instituted in the RTC, CA, or SC at any time of the day or night.

It does not only extend to actual or committed acts but also to threatened acts that will

endanger life, liberty or property. It is not also limited to the person or the victim or to

his immediate family members but can also extend to institutions like religious

institutions or non-governmental institutions.

There is also the writ of habeas data to be able to secure documents in the pursuit of

those cases and the courts I mentioned have concurrent jurisdiction.

Rule 103

In the case of Republic vs. Bolante, the SC enumerated the grounds for change of name:

1.) when the name is ridiculous, dishonorable and extremely difficulty to write or

pronounce 2.) when the change will avoid confusion 3.) when one has been continuously

used and has been known since childhood by the Filipino name 4.) when the surname

causes emabrassment and there is no showing that the desired change of name is not for

a fraudulent purpose. In this particular case, the birth certificate of the applicant is

different with her other school and employment records. The SC allowed the change of

name to make all the documents consistent. In another case, the reason for the change of

name is not one of those enumerated. The reason was to allow the child to integrate with

the Singaporean community because the child carries a Filipino middle name and they

want it dropped. The father was Singaporean. The Supreme Court denied it. The court

said that if there is anyone who will be able to ascertain whether or not she can be

properly integrated to the Singaporean community would be the child herself when shereaches the age of majority.

Rule 106

Do you need a judicial declaration of a family home? No. You know that from Family

Code. By use

Rule 109

Can appeals be taken for judgments and orders in connection of special proceedings?

Yes. Memorize Rule 109 Sec.1. Can the appointment of a special administrator be

appealed? No. Record on appeal is the proper mode of appeal for a period of 30 days. Im

done.

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