SPECIAL PROCEEDING

A special proceeding is a remedy by which

a party seeks to establish a status, a right,
or a particular fact. (S3 R1)
Distinguish: SPECIAL PROCEDINGS vs CIVIL
ACTION
1. As to nature

2. As to binding effect

3. As to cause of action
What are the special proceedings mentioned in the rules
of court S1R72
1. Settlement of estate 2. Escheat
3. Guardianship and custody of minors 4.
Trustees
5. Adoption 6. Change of
name
7. Rescission & revocation of adoption 8. Habeas
corpus
9. Hospitalization of insane persons
10. Voluntary dissolution of corporation
11. Judicial approval of voluntary recognition of
minor
 Comment on Section 1 of Rule 72

1. Procedure for rescission and revocation of

adoption has been assimilated in the Rule on
Adoption, effective 22 August 2002.

2. Petition for voluntary dissolution of

corporation is now filed with the SEC and not
to the courts. (Secs. 118/119 of the
Corporation Code)
 3. After the effectivity of the Family Code,
the concept of the natural child was
abolished.

4. No need for a judicial constitution of a

family home, under Art 153 f the FC the
same is deemed automatically constituted.
 Is the enumeration of special proceedings in
S1 Rule 72 exclusive?

This provision of the Rules refers to civil actions and is not applicable to
special proceedings, such as a land registration case. This is so
because a party in a civil action must immediately enforce a judgment that
is secured as against the adverse party, and his failure to act to enforce the
same within a reasonable time as provided in the Rules makes the decision
unenforceable against the losing party. In special proceedings the purpose is
to establish a status, condition or fact; in land registration proceedings,
the ownership by a person of a parcel of land is sought to be established.
After the ownership has been proved and confirmedby judicial
declaration, no further proceeding to enforce said ownership is
necessary, except when the adverse or losing party had been in
possession of the land and the winning party desires to oust him
therefrom. (Ting v. Heirs of Lirio, G.R. No. 168913, 14 March 2007)
 H and W, husband and wife W went to
Singapore as domestic helper and worked
for 10 years, all the while no news from H,
W met and fell in love with Z.

On 4 July, 2007, W filed a petition with the

RTC of Manila to declare H presumptively
dead, RTC granted the petition. The OSG
filed a Notice of Appeal with the RTC, stating
that it was appealing the decision to the CA
on questions of Law and Fact.
 Q. 1. Is the petition for the declaration of
presumptive death is a special proceeding?
Why or why not?
Ans. No it is not a special proceeding.
Republic v. Madrona, G. R. 163604, 6 May
2005

Comment
 Q. 2. As the RTC who granted Ws petition,
will you give due course to the OSGs notice
of appeal? Why or why not?

I will not give due course anent to such notice of

appeal, because under the Family code Art. 247
judgement of the court in a petition for declaration
of presumptive death is immediately final and
executory. Hence such a judgment may not be
appealed. Republic v. Bermudez-Lorino G.R. 160258
19 January 2005
 Sal Mineo died intestate, leaving a P 1 billion
estate. He was survived by his wife Dayanara and
their five children.
Dayanara filed a petition for the issuance of letters
of administration. Charlene, one of the children,
filed an opposition to the petition, alleging that
there was neither an allegation nor genuine effort
to settle the estate amicably before the filing of
the petition. Rule on the opposition.
 Ans.
SC held that Art. 151 of the FC, which
requires (as condition precedent) that in suits
involving the members of the same family,
there must be a verified allegation of earnest
efforts at compromise, applies only to suits or
ordinary civil actions but not to a special
proceeding, like a petition for settlement of
estate, which is simply for the establishment
of a status, a right, or a particular fact.
Manalo v. CA, 16 January 2001)
What provisions govern special proceedings?

Ans. SPs are primarily governed by the

special provisions applicable to them. In
the absence of special provisions, the rules
provided for in ordinary actions shall be, as
far practicable, applicable in SPs. (S2 R72)
 Rule 73 Venue and
Process
Which court has jurisdiction over a
proceeding for the settlement of estate of a
deceased person?
RTC- exceeds 300K (gross value of the
estate
exceeds 400K MM

BP Blg. 129 S19(4)

 A petition for allowance of a holographic will was filed with
the RTC. The petition did not alleged the gross value of the
estate. The RTCs decision was appealed to the court of
Appeals and the latters decision was appealed to the SC.
Neither the parties nor the lower courts delved on the issue
of jurisdiction. May the SC motu proprio dismiss the case on
the ground of lack of jurisdiction?
Yes. Jurisdiction of the courts is determined from the
allegation in the complaint or petition. If no allegations in
the complaint anent to the amount of gross estate, RTC did
not acquire jurisdiction, therefore, the SC can dismiss the
petition motu proprio, whether at he first instance or on
appeal.
(Frianela v. Banayad, G. R. 169700 july 30, 2009
 Initiatory pleading in probate proceedings

If a person dies testate:

Petition for allowance of will and for letter

testamentary.

Petition for allowance of will and for letters of

administration
with the will annexed.

If a person dies intestate:

Petition for letters of administration

 Where is the venue of probate
proceedings?
If the decedent is a resident, venue lies
with the RTC or MTC where the decedent
resided at the of his death. If the
decedent is a non-resident, venue is
RTC/MTC of any place where he had an
estate. (S1 R73)
 Rule on preferential jurisdiction

It is the rule where the court first taking

cognizance of the settlement of the estate of a
decedent shall exercise jurisdiction to the
exclusion of all other courts. (S1 R73) while rule
73 Sec 1 speaks of Jurisdiction what it actually
refers to is venue.
 David , a resident of Catarman, Northern Samar, died.
Intestate proceedings were filed by an heir in the RTC of
Quezon city where the great bulk of Davids property is
situated. Subsequently a testate proceeding was filed
in the RTC of Catarman. The records clearly show that
David is a resident of Catarman. The heirs moved to
dismiss the probate proceeding filed in Catarman citing
the rule of preferential jurisdiction which states that the
court first taking cognizance of the a probate
proceeding shall exercise jurisdiction to the exclusion
of all other courts. Is the heirs contention correct?
 No. The rule of preferential jurisdiction applies
only to a non-resident decedent, in which case the
venue is the RTC/MTC of any place where the
decedent had an estate. Where the decedent is a
resident, the venue of a probate proceedingmlies
with the RTC/MTC where he resided at the time of
his death. Moreover testate proceedings take
preference over an instestate proceeding. (Cuenco
v. CA, 26 Oct. 1973)
Dencio was a long time resident of Lipa City,
Batangas. He became ill however and had
to go to Manila for medical treatment.
While in Manila, Dencio stayed at the house
of his son, Andres. Three months later,
Dencio died in the hospital in Manila where
he has being treated. His gross estate
where valued at P10M. What is the proper
venue for the petition for the probate of
Dencios will?
 Answer: In the RTC of Manila. RESIDES
in S1 R73 means actual residence or place
of abode and not domicile or legal
residence. (Fule v. CA, 74 SCRA 189) at the
time of Dencios demise he was actually
residing in Manila.
 How is venue challenged or contested in a
probate proceeding?

Venue in a probate proceeding can only be

questioned ON APPEAL, but certiorari under rule
65 may be resorted to if the impropriety of the
venue (due to residence or location of estate)
appears on the record. (S1 R3 ; Manzanero v.
CFI 61 Phil. 850).
If settlement proceedings are filed in two or
more courts and the question of venue is
raised, which court
Would have jurisdiction to decide the issue of
venue?
The court in which the case was first
filed has the exclusive jurisdiction to
settle the issue of venue. (De Borja
v. Tan 27 July 1955)
If a spouse has died, in what proceeding is
the community property or conjugal
partnership liquidated? What if both
spouses have died?
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 therefore paid, in the
testate or intestate proceedings of the
deceased spouse, if both died, the conjugal
partnership shall be liquidated in the testate
intestate proceedings of either deceased
spouse. (S2 R73)
Pedrillo, a Fil-Am permanent resident of Los Angeles, California
at the time of his death, bequeathed to Winston a sum of
money to purchase an annuity.

Upon Pedrillos demise, his will was duly probated in Los

Angeles and the specified sum in the will was in fact used to
purchase an annuity with XYZ of Hong Kong so that Winston
would receive the equivalent of US$1,000 per month for the
next 15 years.

Wanting to receive the principal amount of the annuity, Winston

files for the probate of Pedrillos will in the Makati RTC. As
prayed for, the court names Winston as administrator of the
estate.

Winston now files in the Makati RTC a motion to compel XYZ to

account for all sums in its possession forming part of Pedrillos
 The motion should be denied, writs and
processes of a probate court cannot extend
outside our jurisdiction. At the onset the
petition should be dismissed , in a petition for
probate of a will where the testator is a non-
resident, the jurisdictional facts should state
that he has properties located in the
Philippines. (Cuenco v. CA L-24742 10-26-
1973)
 RULE 74

General rule (S6 R78): If a person dies leaving

an estate, it must be judicially administered by
a competent court having jurisdiction over the
petition, If there is a will it will provide for the
allowance of the will and appointment of an
executor stated in the will, if silent, refused or
incompetent an administrator. If the person
dies without a will, the court of competent
jurisdiction will appoint an administrator and
judicially administered the estate.
 Exception for Judicial Administration of
estate
Sec. 2 Summary settlement of state of
small values
Gross value of the estate is P10,000.00 (petition filed at MTC)

Testate and Intestate applicable

Applicable even if there are debts (can be instituted by any interested

party, even a creditor of the estate, even without the consent of all the
heirs.)

Publication 1 x 3 newspaper of general circulation

Hearing on the petition not less than 1 mon. or more than 3 mons. (from
the date of the last publication of the notice and after such notice to
interested persons as the court may direct.)

The court will act summarily without need of appointing an executor or

administrator, granting the allowance of the will, determination of heirs ,
payments of debts and division and distribution of estate.
 Extrajudicial settlement of estates

Requirements (S1 R74)

No will / No debts

Heirs are all of age / minors represented by

their judicial or legal representatives duly
authorized for this purpose.
 Procedure in extrajudicial settlement of
estate
Agreement of heirs to execute a public instrument
duly filed with the registered of deeds. (should they
disagree in the settlement they can file an ordinary
action for partition)

If there is only a single heir, he may execute an

affidavit of self adjudication filed with the register of
deeds. (adjudicating to himself the entire estate)

1 x 3 publication in a news paper of general

circulation.

Filing of a bond filed simultaneously with the register

Characteristics of extrajudicial settlement of estates

Does not require court intervention

The value of the estate is immaterial

Allowed only in INTESTATE succession

No Debts outstanding

By agreement of all heirs

 After requisite publication, is the
extrajudicial settlement binding upon all
persons?
No. 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. S1 R74
Following the above-quoted decision of this Court in the
case of Ramirez vs. Gmur, supra, we are of the opinion and
so hold that the provisions of Section 4 of Rule 74, barring
distributees or heirs from objecting to an extrajudicial
partition after the expiration of two years from such
extrajudicial partition, is applicable only (1) to persons who
have participated or taken part or had notice of the
extrajudicial partition, and, in addition, (2) when the
provisions of Section 1 of Rule 74 have been strictly
complied with, i.e., that all the persons or heirs of the
decedent have taken part in the extrajudicial settlement or
are represented by themselves or through guardians. The
case at bar fails to comply with both requirements because
not all the heirs interested have participated in the
extrajudicial settlement, the Court of Appeals having found
that the decedent left aside from his widow, nephews and
nieces living at the time of his death. G.R. No. L-
Pinoy died without a will. His wife, Rosie, and three
children executed a deed of extrajudicial settlement
of his estate. The deed was properly published and
registered with the Office of the Register of Deeds.
Three years thereafter, Suzy appeared, claiming to
be the illegitimate child of Pinoy. She sought to
annul the settlement alleging that she was deprived
of her rightful share in the estate.

Rosie and the three children contended that (1) the

publication of the deed constituted constructive
notice to the whole world, and should therefore bind
Suzy; and (2) Suzy's action had already prescribed.
Are Rosie and the three children correct? Explain.
(4%)
The publication of the settlement does not
constitute constructive notice to the heirs who had
no knowledge or did not take part in it because the
same was notice after the fact of execution. The
requirement of publication is geared for the
protection of creditors and was never
intended to deprive heirs of their lawful
participation in the decedent's estate. In this
connection, the records of the present case
confirm that respondents never signed either of
the settlement documents, having discovered their
existence only shortly before the filing of the
present complaint. Following Rule 74, these
extrajudicial settlements do not bind respondents,
and the partition made without their knowledge
and consent is invalid insofar as they are
 Remedies of an heir in a summary
settlement of estate who has been duly
deprived of his lawful participation?

File a petition for annulment of the

extrajudicial settlement of estate, and compel
the settlement of the estate in such court for
the purpose of satisfying such lawful
participation, or cancellation of partition and
making of a new division.

UNLESS
The deprived heir agrees to be paid the value
of his participation with interest.
 The bond and the lien on the real property will
remain charged with a liability to creditors, heirs
for a period of two years after such distribution.
Not withstanding transfer of real estate that
may have been made.

If a minor/ mentally incapacitated person / or

in prison/ or outside the Philippines, he can
present his claim within ONE YEAR after such
disability is removed. (S5 R74)
 What is the duty of the registry of
deeds?
Annotation of a two year lien on the title,
after two years and a presentation of a
verified petition for cancellation of the lien
noted on the title by the registered heirs,
devisees or legatees that no claim of any
creditor and or other heirs exist. The register
of deeds will cancel the annotated lien
without need of a court order. Sec. 86,
Two year Property Registration
period of Decree
lien commence from the
date of registration of the EJS not execution
of the EJS instrument .
 When can an ordinary action for judicial
partition be had in lieu of a petition for
issuance of letters of administration and
or an EJP?
Nor can we sustain petitioner's argument that the order of the trial
court converting an action for letters of administration to one for
judicial partition has no basis in the Rules of Court, hence
procedurally infirm. The basis for the trial court's order is Section 1,
Rule 74 of the Rules of Court. It provides that in cases where the
heirs disagree as to the partition of the estate and no extrajudicial
settlement is possible, then an ordinary action for partition may be
resorted to, as in this case. We have held that where the more
expeditious remedy of partition is available to the heirs, then the
heirs or the majority of them may not be compelled to submit to
administration proceedings. The trial court appropriately
converted petitioner's action for letters of administration into a suit
for judicial partition, upon motion of the private respondents. No
reversible error may be attributed to the Court of Appeals when it
CASES:

B brought a property whose title still had a two

year lien annotated upon it, although more than
two years had lapsed from the registration of the
EJS. Is the property bought by B still bound by
the 2 year lien?

Ans. No more, lien expires after two years and

becomes functus oficio. A buyer who purchases
thereafter is a buyer in good faith. Carreon v.
Agcaoili L-11156 1961
X, Y and Z are sole heirs of the deceased W. The
estate of consist of a parcel of land in Marikina
City, Y and Z was jailed due to a conviction of a
crime. In 2010, while Y and Z are in jail, X
caused the self adjudication of the said land by
means of executing and registering an affidavit
of self adjudication and a title over said land was
issued a title by the register of deeds. In 2017
Y and Z were released from prison. Can they
still file a petition to settle the estate of W in
order to obtain their lawful share?
Production of will / allowance of will
necessary - R75
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.

Are there any exceptions to the

rule?
 After Lulu's death, her heirs brought her last will to a
lawyer to obtain their respective shares in the estate.
The lawyer prepared a deed of partition distributing
Lulu's estate in accordance with the terms of her will.

Is the act of the lawyer correct? Why?

The heirs of H agree among themselves that they will
honor the division of H's estate as indicated in her Last
Will and Testament. To avoid the expense of going to
court in a Petition for Probate of the Will, can they
instead execute an Extrajudicial Settlement Agreement
among themselves?

Explain briefly.
The last will and testament of the deceased was
presented in the proceeding to settle his estate and in
due course hearing was set for the probate of the will.
Before evidence thereon could be presented, the legal
heirs of the deceased, his widow and two surviving
daughters, filed a manifestation that the probate of the
will would no longer be necessary since they had
already agreed to divide the net estate differently in
accordance with a project of partition attached to their
manifestation. Consequently, they moved that the
project of partition be approved and forthwith
implemented without probate of the decedents will.
Should the court grant the heirs motion and accordingly
approve their project of partition without probate of the
will?
In Guevarra v Guevarra 74 Phil. 749

The Supreme Court has held that

the probate of the will is
MANDATORY.

S1 R74 Extrajudicial Settle cannot

be had if the decedent left a will.
Purpose of probate or allowance of wills.

Official Recognition

Registration

Carrying out its provision according to law

Does a will have the force and effect even if not
probated?

Pascual v. CA, 409 SCRA 105 No. Until

admitted to probate, a will has no effect
and no right can be claimed thereunder.
Is a decree of probate conclusive as to its due
execution?
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.
Estate of Johnson, 39 Phil. 156 Allowance of the will
precludes any interested person from questioning the due
execution of the will but not the intrinsic validity of its
testamentary provisions. Matters relating to intrinsic validity
of a will are governed by substantive law on inheritance and
Pastor, Jr v.CA 122 SCRA 185 As a rule, the question of
partition.
ownership is an extraneous matter which the probate court
cannot resolve with finality .
Due Execution refers to the following:

1. The will was executed in accordance with

the strict formalities of the law.
2. the testator was of sound and disposing
mind at the time of the execution of the will
and he knows the extent of his bounty.
3. Consent is not vitiated by any duress,
fear or threats.
4. No undue influence from any beneficiary.
5. The signature is genuine.
May a probate court pass upon the intrinsic
validity of a will?
No., in a special proceeding for probate of a will, the
issue by and large is restricted to the extrinsic validity
of the will, whether the testator, being of sound mind,
freely executed the will in accordance with the
formalities prescribed by law, as a rule, the question
of ownership is an extraneous matter which the
probate court cannot resolve with finality. Pastor Jr. v
CA, 122 SCRA 185
A probate court is a court of limited jurisdiction, its function
relates to settlement of estate as to its allowance,
administration, liquidation and distribution of estate, but
never on the rights to property arising from contract. Pio
Barreto Realty Dev.,Inc. v CA L-62431 131 SCRA 606
59. Apart from the case for the settlement of her parents' estate,
Betty filed an
action against her sister, Sigma, for conveyance of title to a piece
of land.
Betty claimed that Sigma forged the signatures of their late parents
to make it
appear that they sold the land to her when they did not, thus
prejudicing Bettys
legitime. Sigma moved to dismiss the action on the ground that the
dispute
should be resolved in the estate proceedings. Is Sigma correct?

A. Yes, questions of collation should be resolved in the estate

proceedings, not in
a separate civil case.
B. No, since questions of ownership of property cannot be resolved
in the
 Doctrine of exclusionary Rule in probate
Proceedings

Court first takes cognizance and jurisdiction over

the settlement of the estate of a deceased
person, it shall continue to exercise jurisdiction
over the same to the exclusion of other courts,
the parties cannot divest jurisdiction from the
probate court by subsequent acts such as
entering into an extrajudicial partition or by
filing another petition for settlement of estate
(ordinary action for partition) in a proper court of
concurrent jurisdiction.
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.
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.
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.
Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang
Village, Muntinlupa City , of sound and disposing mind, executed a last will and
testament in English, a language spoken and written by him proficiently. He
disposed of his estate consisting of a parcel of land in Makati City and cash deposit
at the City Bank in the , sum of P300 Million. He bequeathed P50 Million each to his
3 sons and P150 Million to his wife. He devised apiece of land worth P100 Million to
Susan, his favorite daughter-in-Iaw. He named his best friend, Cancio Vidal, as
executor of the will without bond

Is Cancio Vidal, after learning of Sergio's death, obliged to file with the proper court
a petition for probate of the latter's last will and testament? 2%

Supposing the original copy of the last will and testament was lost, can Cancio
compel Susan to produce a copy in her possession to be submitted to the probate
court? 2%

Can the probate court appoint the widow as executor of the will? 2%

Can the widow and her children settle extrajudicially among themselves the estate
of the deceased? 2%
 May MANDAMUS LIE TO COMPEL THE
PRODUCTION OF THE ORIGINAL WILL?

R65 SEC. 3. Petition for mandamus.When any tribunal,

corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law,
There being a plain, speedy and adequate remedy
in the ordinary course of law for the production of
the subject will, the remedy of mandamus cannot
be availed of.

G.R. No. 176831 January 15, 2010

UY KIAO ENG, Petitioner,

vs.
NIXON LEE, Respondent.
 Simplified outline judicial proceedings for the
settlement of the estate of a deceased person.
1. Filling of the initiatory pleading (Petition for allowance of will and for
letters testamentary)
2. Notice of Hearing Publication 1x3 / notice to all known heirs,
legatees, devisees and executor.
3. Allowance /disallowance of will (probate proper)
4. Issuance of letters testamentary/or administration
5. Filing and approval of claims against estate. - R86 money claims
filed against the estate - R87 non-money
claims filed against exec-
admin (in an ordinary action)
6. Payment of debts estate tax admin exp., all. For window and minor
or incapacitated children.
7. Determination of heirs and distribution of the remainder of the
estate.
8. Closure proceedings terminated only after payment of all debts
and delivery of remaining estate to the heirs.
Juju a long time widower and a permanent resident of Marikina
since birth, went to the US for a vacation and stayed with his eldest
son, he met an accident while crossing the street, because he was
so excited to buy ice cream (flavored bubble gum) from an ice
cream truck and died eventually due to head trauma, he was
survived by his 3 sons, 2 of them of legal age and has no legal
disability, while the youngest is just 17 years old, all three sons
agreed to cremate the remains of their father in the US and leave
the ashes with the eldest sons residence in the US. The decedent
left a holographic will, with a gross estate of 400 thousand pesos,
consist of one (1) omega Sea Master Skyfall 007 wrist watch placed
on a deposit box in China bank, Binondo branch, Manila. Juju left
the holographic will and in the possession of his middle son and
was assigned as the executor of his estate in the will itself. All
three sons talked and agreed to execute a public instrument
registered and filed with the register of deeds for the extrajudicial
partition of the estate. But the eldest son later disagree with the
project of partition and filed an ordinary civil action for partition.
1.What court has jurisdiction over the allowance of
the will and for letters testamentary? Explain
briefly

2. Where is the venue? For the filing of the said

petition? Explain briefly

3. Can the heirs execute an affidavit of extrajudicial

portion? Why and why not? Explain briefly

4. Is the filing of an ordinary action for partition valid,

if incase the heirs disagrees with the extrajudicial
Partition? Explain briefly

5.They consulted you as an expert in Special

 Who may petition for the allowance
S1 R76 of will?
Any person who is interested in the estate.
Sumilang v. Romagosa, 21 SCRA 1369 (1967)

Can the TESTATOR himself petition the court

for the allowance of his will?
 Can an heir initiate probate proceedings,
when in fact he has already repudiated or
renounced his hereditary rights?

Duran v Duran L-23372, 14 June 1967

 Is the probate of a will subject to
prescription?

No, statute of limitation is non applicable petition

can be filed at any time due to public policy

Guevara v. Guevara 98 Phil. 249

 S2 R76 Contents of a petition for the
allowance of a will

1.Jurisdictional Facts
2.Names, ages and residence of the heirs,
legatees and devisees of the testator or
decedent.
3.Probable value and character of the property
of the estate.
4.The name of the testator
5.Name of the will custodian, if the will is not
yet delivered to the probate court.
Will a defect in the petition render void the
allowance of the will?

No it will not even the issuance of

letter testamentary or letter s
administration with the will
annexed. S2 R76
 When the will is delivered to or a petition is
filed for the allowance of the will in the
probate court, what then shall the court do?

1.Court shall fix a time and place for proving the

will .
2.Shall cause notice of such time and place to be
published 3 weeks successively. (previous to the
time appointed)
3.Publication in a newspaper of general circulation
in theMortem
Ante province. S3 R76
Probate No Publication is
required S3 R76
Notice thru mail and personal service S4 R76
Heirs / devisees/ legatees/ executors must be notified
either via mail or personally

The court shall also cause copies of the notice of the

time and place fixed for proving the will via mail
deposited in the post office with the postage thereon
prepaid at least (20) days prior the date of hearing , if
such residence of the said parties are known in the
Philippines , including executor/ co executor if not the
petitioner thereof.

Personal service must be received by the parties 10

days
Anteprior to the Probate
Mortem date of hearing.
Notice shall be sent only
to compulsory heirs. S4 R76
 Alaban, et al. v CA G. R. No. 156021 2005 Sept. 23
Facts: Respondent Provido filed a petition for probate of the will of Elevencionado,
alleging he was the heir and executor if the will of the decedent. RTC of Iloilo allowed
the probate and issued letter testamentary.

Petitioners filed motion for the reopening of the probate proceedings, likewise, filed an
opposition to the allowance of the will as well as the issuance of letters testamentary
to the respondent, claiming that they are the intestate heirs of the decedent. They
further claimed that the probate court did not acquire jurisdiction over the petition due
to non-payment of the correct docket fees, defective publication, and lack of notice to
the other heirs.

RTC issued an order denying petitioners 'motion for being unmeritous,

Issue: Whether or not petitioners have become parties to the probate proceedings by
virtue of a notice by publication.

Held: 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.
mere publication of the notice enough to confer jurisdiction on the court?

De Aranz v. Galing 161 SCRA 628 1988

It is clear from the aforecited rule that notice of the time and
place of the hearing for the allowance of a will shall be forwarded
to the designated or other known heirs, legatees, and devisees
residing in the Philippines at their places of residence, if such
places of residence be known. There is no question that the
residences of herein petitioners legatees and devisees were
known to the probate court. The petition for the allowance of the
will itself indicated the names and addresses of the legatees and
devisees of the testator. But despite such knowledge, the
probate court did not cause copies of the notice to be sent to
petitioners. The requirement of the law for the allowance of the
will was not satisfied by mere publication of the notice of hearing
for three (3) weeks in a newspaper of general circulation in the
 REQUIRED PROOF FOR THE ALLOWANCE OF A
WILL

UNCONTESTED NOTARIAL WILL:

1. Subscribing witness only is sufficient to allow the will,

testifying that the will was executed as is required by law.
(S5 R76)

2. If the witness does not reside in the province - the court

may authorize the taking of his deposition...

3. If the subscribing witness does not reside in the

Philippines, or became insane or dead, the court
will admit the testimony of other witnesses.
UNCONTESTED HOLOGRAPHIC WILL:

Testimony of one witness who knows the

handwriting and signature of the testator,
absence of such an expert testimony may be
resorted to. (S5 R76)

ANTE MORTEM PROBATE sufficient evidence of

the genuineness and due execution thereof.
(S12 R76)
Contested Notarial will:

1. All the subscribing witnesses and the notary public. (Not insane or
dead- if in case dead or insane, incapacity or absence must be prove
in court.)

2. Outside the province of the court but inside the Philippines take
deposition

3. If any or all of them testify against the due execution of the will or do
not remember attesting as such, the will may nevertheless be allowed
if satisfactory established as to the due execution of the will by other
witnesses attesting the compliance of the will as required by law. (S11
R76)

Contested Holographic Will:

1. Three witnesses is required to attest the authenticity of the signature

and handwriting of the testator, in its absence, expert testimony may be
resorted to. (S11 R76)
The oppositor was against the allowance of
the holographic will on the ground of undue
influence, no intention to make a will. The
proponent presented one witness who testified
that he knew the hand writing and signature
of the testrarix. Is this sufficient evidence for
the allowance of the will?
In Azaola v. Singson, 109 Phil. 102 SC said yes, to
contest the holographic will is to challenge the
authenticity thereof. Here since the challenge was
based on undue influence and lack of testamentary
intent, but did not otherwise attack the wills
authenticity, the testimony of one competent
witness was sufficient.
In the probate of a holographic will, the oppositors
alleged that the holographic will was a forgery. The
proponent presented two witnesses who knew the
testratrixs handwriting and signature and who explicitly
declared that the handwriting and signature were of the
testrarixs. Is this sufficient evidence for the allowance of
the holographic will?
No, the will is contested on the grounds of
authenticity of the decedents handwriting
and signature, therefore under the law 3
competent witnesses required, two is not
enough; the proponent should have resorted
to expert testimony. Codoy v. Calugay, 312
SCRA 333
Proof in case of lost will:

Notarial will:

1.Execution and validity of the will

2.Existence of the will at the time of the

testators death, or that the same was
fraudulently or accidentally destroyed during
the testators lifetime without his knowledge.

Secondary evidence: two credible witnesses by

which the provision of the will are clearly and
distinctly proved /photo copy of the will is
admissible.
Holographic will

Same foundational evidence as notarial will

Secondary evidence:

Photo copy is admissible but not testimonial

evidence- great risk of fraud and manipulation
or mistake in the provisions of the will.
Grounds for disallowance of the will:

If not executed and attested as required bylaw

formalities

The testator is insane, mentally incapable at the

time of the execution

Executed under duress, fear, threats, undue

influence

If the signature was procured by fraud / mistake

on the part of the testator
 During the probate proper of a will, may the
probate court pass upon questions of whether
a testamentary disposition is void?

Ans. No, during the probate proper (extrinsic

validity is being accessed, the court can pass
upon only if the will complied with the
formalities prescribed by law and whether the
testator had testamentary capacity. The
intrinsic validity of the will shall be passed upon
by the probate court during the stage for the
determination of heirs and distribution of the
estate. Pastor v CA G.R. No. 56340, 24 June 1983
 Is there an exception? Deciding upon questions
of intrinsic validity during the probate proper?

1. When the defect is so apparent on its face and the

probate of the will would become an exercise in
futility. Example: the testator instituted the petitioner
as universal heir and completely preterited her
surviving compulsory heirs. Nuguid v. Nuguid 17 SCRA
449
2. Where the parties agree that the intrinsic validity be
first be determined. ( Nepomuceno v. Court of
Appeals, 139 SCRA 206)
Maria, to spite her husband Jorge, whom she suspected
was
having an affair with another woman, executed a will,
unknown to him, bequeathing all the properties she
inherited
from her parents, to her sister Miguela. Upon her death,
the
will was presented for probate. Jorge opposed probate of
the
will on the ground that the will was executed by his wife
without his knowledge, much less consent, and that it
deprived him of his legitime. After all, he had given her
no
cause for disinheritance, added Jorge in his opposition.
How will you rule on Jorges opposition to the probate of
H died leaving a last will and testament wherein it is stated
that he was legally married to W by whom he had two
legitimate children A and B. H devised to his said forced
heirs the entire estate except the free portion which he gave
to X who was living with him at the time of his death.
In said will he explained that he had been estranged from his
wife W for more than 20 years and he has been living with X
as man and wife since his separation from his legitimate
family.
In the probate proceedings, X asked for the issuance of
letters testamentary in accordance with the will wherein she is
named sole executor. This was opposed by W and her
children.
(a) Should the will be admitted in said probate proceedings?
(b) Is the said devise to X valid?
(c) Was it proper for the trial court to consider the intrinsic
validity of the provisions of said will? Explain your answers,
 R 77 Allowance of the will proved outside of the
Philippines and administration of estate thereunder.

Wills executed in a foreign country under the laws of

the said country be probated in our country?

Yes, under Sec 1 Rule 77 it can be filed in the

proper court ( RTC has jurisdiction regardless of
the value of the gross estate) venue?
 Wills prove and allowed in a foreign country under the
laws of the said country be sufficient for the
distribution of the testators properties located in the
Philippines?
No, it should be reprobated here in our courts, filing of the
authenticated copy of the will and the decree of allowance,
fixing of the time and place for the hearing, in the reprobate
the proponent will prove: jurisdictional requirements, if the PH
court will allow the will it shall be filed and recorded by the
clerk and the effect is that , it is as if originally proved and
allowed in PH court. The court shall grant letters testamentary,
or letters of administration with the will annexed. Such estate
after payments of all debts and expenses shall be accordingly
disposed and if there are residue be remitted to the
domiciliary jurisdiction.
Can our courts take judicial notice of the foreign
laws applied in the probate and allowance of the
will?
No, our courts are not authorized to take judicial
notice of foreign laws, the executor, administrator
and or the ancillary administrator is duty bound to
introduce in evidence the pertinent foreign law in
the reprobate of the foreign will. Ancheta v.
Guersey-Dalaygon G.R. No. 139868, June 8, 2006
What is the principle of Presumed
Identity Approach or
Processual Presumption?
 Can an Alien or a Filipino Citizen in a foreign
country Execute a will observing the law of
the state where it was executed?
Article 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.

When the acts referred to are executed before the diplomatic or

consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.

Prohibitive laws concerning persons, their acts or property, and

those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
Art. 815. When a Filipino is in a foreign country, he is authorized to make
a will in any of the forms established by the law of the country in which
he may be. Such will may be probated in the Philippines. (n)

Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place
in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes. (n)

Art. 817. A will made in the Philippines by a citizen or subject of another

country, which is executed in accordance with the law of the country of
which he is a citizen or subject, and which might be proved and allowed
by the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines. (n)
Article 16. Real property as well as personal
property is subject to the law of the country where
it is situated.

However, intestate and testamentary successions,

both with respect to the order of succession and to
the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person
whose succession is under consideration, whatever
may be the nature of the property and regardless
of the country wherein said property may be
found.
Art. 818. Two or more persons cannot make a will jointly,
or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person.

Art. 819. Wills, prohibited by the preceding article,

executed by Filipinos in a foreign country shall not be valid
in the Philippines, even though authorized by the laws of
the country where they may have been executed.
What is Forum non convenience?
Johnny, a naturalized citizen of the United States of America (USA) but
formerly a Filipino citizen, executed a notarial will in accordance with
the laws of the State of California, USA. Johnny, at the time of his
death, was survived by his niece Anastacia, an American citizen
residing at the condominium unit of Johnny located at Fort Bonifacio,
Taguig City; a younger brother, Bartolome, who manages Johnnys fish
pond in Lingayen, Pangasinan; and a younger sister, Christina, who
manages Johnnys rental

condominium units in Makati City. Johnnys entire estate which he

inherited from his parents is valued at P200 million. Johnny appointed
Anastacia as executrix of his will. (4%)

(A) Can Johnnys notarial will be probated before the proper court in
the Philippines?

(B) Is Anastacia qualified to be the executrix of Johnnys notarial will?

 Rule 78 Letters testamentary and of
administration,
when and to whom issued
Executor / co-executor / administrator / co-
administrator
Disqualification under the rules:

1. Minor

2. Not a resident of the Philippines

3. In the opinion of the court unfit to execute the duties of the trust by
reason of drunkenness, improvidence, or want of understanding or
integrity or conviction of a crime involving moral turpitude.
Difference between an executor / co executor /
administrator?

X died leaving a holographic will , stating further

that Y will execute the provisions of his will,
Y died living a notarial will, in his notarial will one
provision is that W will assume his duties as the
testator of X estate?

Can W assume the responsibilities and authority

given by the court as executor of X estate under
his holographic will?
X died leaving a will assigned T,U,V,W as co-executors
of the estate, T was convicted upon final judgement of
a crime involving moral turpitude, U is 17 years of age,
the court issued letters testamentary to V and W.

Is the Court correct in its decision?

Meanwhile T and U file a motion to the probate court,

that finding them unqualified, to issue letters of
administration and assign administrator replacing them
as co-executors of X estate with V and W?

If you were the judge, what will be your resolution to

the motion?
 Section 6 order of preference of
administrator

1. Surviving Husband or wife, or the next of kin or upon its

request by their selection in the discretion of the court.

2. If the said persons in #1 fails to apply for administration

or request that administration be granted to some other
person, it may be granted to one or more of the principal
creditors, if competent and willing.

3. If no creditor willing and competent to serve, the court

will grant it to some other persons.
What is the rationale of the rule on order of
preference?
Is the rule absolute?

Why in some cases the court assign a co-

administrator?

What is the scope or limit of administration?

Mayor of section b please email this to the mayor of section a tnx a lot

Credits of the slides will follows at the end of the semester.