Questions and Suggested Answers

In the
PHILIPPINE BAR EXAMINATIONS 2007-2013
In

SPECIAL PROCEEDINGS (RULES 72 109)

1) Absentee; Declaration of Absence vs Declaration of Presumptive Death (2009)

Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding,
Frank exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live with
her parents. A year thereafter, Gina found employment as a domestic helper in Singapore,
where she worked for ten consecutive years. All the time she was abroad, Gina had absolutely no
communications with Frank, nor did she hear any news about him. While in Singapore, Gina
met and fell in love with Willie. On July 4, 2007, Gina filed a petition with the RTC of manila to
declare Frank presumptively dead, so that she could
marry Willie. The RTC granted Ginas petition. The office of the Solicitor General (OSG) filed a
notice of Appeal with the RTC, stating that it was appealing the decision of the Court of Appeals on
questions of fact and law.

(a) Is a petition for declaration of Presumptive Death a special proceeding?

SUGGESTED ANSWER:
No. the petition for Declaration of Presumptive Death provided in Art. 41 of
the Family Code is not the special proceeding governing absentees under Rule 107 of the
Rules of Court whose rules of procedure will not be followed (Republic vs. C.A., 458 SCRA
[2005]).

Said petition for Declaration of Presumptive Death under Article 41 of the Family Code is a
summary proceeding, authorized for purposes only of remarriage of the present spouse, to
avoid incurring the crime of bigamy. Nonetheless, it is in the nature of a special proceeding,
being an application to establish a status or a particular fact in court.

ALTERNATIVE ANSWER:
A petition for declaration of presumptive death may be considered a special proceeding,
because it is so classified in the Rules of Court (Rule 107, Rules of Court), as differentiated from
an ordinary action which is adversarial. It is a mere application or proceeding to establish the
status of a party or a particular fact, to viz: that a person has been unheard of for a long time
and under such circumstance that he may be presumed dead.

(b) As the RTC judge who granted Ginas petition, will you give due course to the OSGs
notice of appeal?

SUGGESTED ANSWER:
NO. Appeal is not a proper remedy since the decision is immediately final and executor upon
notice to the parties under Art. 247 of the Family Code(Republic vs Bermudez-Lorino, 449 SCRA
57 [2005]). The OSG may assail RTCs grant of the petition only on the premise of grave abuse
of discretion amounting to lack or excess of jurisdiction. The remedy should be by certiorari
under Rule 65 of the Rules of Court.
 2) Cancellation or Correction; Notice (2007)

(a) B files a petition for cancellation of the birth certificate of her daughter R on the ground of the
falsified material entries therein made by Bs husband as the informant. The RTC sets the case for
hearing and directs the publication of the order for hearing and directs the publication of the
order once a week for three consecutive weeks in a newspaper of general circulation. Summons was
service on the Civil Registrar but there was no appearance during the hearing. The RTC granted
the petition. R filed a petition for annulment of judgment before the Court of Appeals, saying that she
was not notified of the petition and hence, the decision was issued in violation of due process.
B opposed saying that the publication of the court order was sufficient compliance with due
process. Rule. (5%)

SUGGESTED ANSWER:
Rs petition for annulment of judgment before the Court of Appeals should be granted.
Although there was publication of the court order acting the petition to cancel the birth
certificate, reasonable notice still has to be served on R as she has an interest affected by the
cancellation. (Sec. 3 and 4, Rule 108, Rules of Court) She is an indispensable party (Republic v.
Benemerito, 425 SCRA 488 [2004]), and notice has to be served on her, not for the purpose of
vesting the court with jurisdiction, but to comply with the requirements of fair play and due
process (Ceruila v. Delantar, 477 SCRA 134 [2005]).

ALTERNATIVE ANSWER:
The petition for annulment of judgment should not be granted. While R is an indispensable
party, it has been held that the failure to service notice on indispensable parties is cured by the
publication made because the action is one in rem (Alba v. Court of Appeals, 465 SCRA 495
[2005]; Barco v. Court of Appeals, 420 SCRA 39 [2005]).

3) Habeas Corpus (2007)

Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig City. Wife
W files a petition for habeas corpus before the RTC of Pasay City, praying for custody over their minor
child. H files a motion to dismiss the wifes petition on the ground of the pendency of the other
case. Rule.

SUGGESTED ANSWER:
The motion to dismiss the petition for habeas corpus should be granted to avoid multiplicity of
suits. The question of who between the spouses should have custody of their minor child could
also be determined in the petition for declaration of nullity of their marriage which is already
pending in the RTC of Pasig City. In other words, the petition filed in Pasig City, praying for
custody of the minor child is unnecessary and violates only the cardinal rules of procedure
against multiplicity of suits. Hence, the latter suit may be abated by a motion to dismiss on the
ground of litis pendentia (Yu v. Yu, 484 SCRA 485 [2006]).

4) Habeas Corpus; Bail (2008)

After Alma had started serving her sentence for violation of BP 22, she filed a petition for a
writ of habeas corpus, citing Vaca vs CA where the sentence of imprisonment of a party found guilty
of violation of BP 22 was reduced to a fine equal to double the amount of the check involved.
She prayed that her sentence be similarly modified and that she be immediately released from
detention. In the alternative, she prayed that pending determination on whether the Vaca
ruling applies to her, she be allowed to post bail pursuant to Rule 102, Sec. 14, which provides
that if a person is lawfully imprisoned or restrained on a charge of having committed an offense not
punishable by death, he may be admitted to bail in the discretion of the court. accordingly, the trial
court allowed Alma to post bail and then ordered her release.
In your opinion, is the order of the trial court correct

(a) Under Rule 102?

SUGGESTED ANSWER:
No, Alma, who is already convicted by final judgment, cannot be entitled to bail under Sec. 14,
Rule 102. The provision presupposes that she had not been convicted as yet. It provides that if
she is lawfully imprisoned or restrained for an offense not punishable by death, she may be
recommitted to imprisonment or admitted to bail in the discretion of the court or judge (Sec.
14, Rule 102; Celeste vs. People, 31 SCRA 391; Vicente vs. Judge Majaducon, A.M. No. RTJ-02-
1698, 23 June 2005; San Pedro vs. Peo, G.R. No. 133297, 15 August 2002).

(b) Under the Rules of criminal procedure?

SUGGESTED ANSWER: Under the Rules of Criminal Procedure, Rule 114, Sec. 24 clearly prohibits
the grant of bail after conviction by final judgment and after the convict has started to serve
sentence. In the present case, Alma had already started serving her sentence. She cannot,
therefore, apply for bail (Peo. vs. Fitzgerald, G.R. No. 149723, 27 October 2006).

5) Habeas Corpus; Jurisdiction; Sandiganbayan (2009)

In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions for the
issuance of a writ of habeas corpus.

SUGGESTED ANSWER:
FALSE. The Sandiganbayan may grant petitions for Habeas corpus only in aid of its appellate
jurisdiction (R.A. 7975, as amended by R.A 8249), not in the
exercise of original jurisdiction.

6) Letters of Administration; Interested Person (2008)

Domencio and Gen lived without benefit of marriage for 20 years, during which time they
purchased properties together. After Domencio died without a will, Gen filed a petition for
letters of
administration. Domencios siblings opposed the same on the ground that Gen has no legal
personality. Decide.

SUGGESTED ANSWER:
A petition for letters of administration may be filed by any interested person (Sec. 2, Rule 79,
Rules of Court). Gen would be considered an interested person if she was not married to
Domenico, because she can claim co-ownership of the properties left by him under their
property regime of a union without marriage under conditions provided in the Family Code
9Arts. 147-148, Family Code; San Luis vs. San Luis, G.R. No. 133743, February 6, 2007).

7) Probate of Will (2010)

Czarina died single. She left all her properties by will to her friend Duqueza. In the will,
Czarina stated that she did not recognize Marco as an adopted son because of his disrespectful conduct
towards her. Duqueza soon instituted an action for probate of Czarinas will. Marco, on the
other hand, instituted intestate proceedings. Both actions were consolidated before the RTC of Pasig.
On motion of Marco, Duquezas petition was ordered dismissed on the ground that the will is
void for depriving him of his legitime. Argue for Duqueza. (5%)
SUGGESTED ANSWER:
The petition for probate of Czarinas will, as filed by Duquesa should not be dismissed on mere
motion of Marco who instituted intestate proceedings. The law favors testacy over intestacy,
hence, the probate of the will cannot be dispensed with. (See Sec. 5, Rule 75) Thus, unless the
will which shows the obvious intent to disinherit Marco is probated, the right of a person
to dispose of his property may be rendered nugatory (See Seanio vs. Reyes, G.R. Nos. 140371-
72, Nov. 27, 2006). Besides, the authority of the probate court is generally limited only to a
determination of the extrinsic validity of the will. In this case, Marco questioned the intrinsic
validity of the will.

8) Probate of Will (2007)

(b) The heirs of H agree among themselves that they will honor the divisionof Hs 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. (5%)

SUGGESTED ANSWER:
The heirs of H cannot validly agree to resort to extrajudicial settlement of his estate and do
away with the probate of Hs last will and testament. Probate of the will is mandatory
(Guevarra v. Guevarra, 74 Phil. 479 [1943]). The policy of the law is to respect the will of the
testator as manifested in the other dispositions in his last will and testament, insofar as they
are not contrary to law, public morals and public policy. Extrajudicial settlement of an estate of
a deceased is allowed only when the deceased left no last will and testament and all debts, if
any, are paid (Rule 74, Sec. 1, Rules of Court).

9) Probate of Will; Jurisdictional Facts (2012)

What are the jurisdictional facts that must be alleged in a petition for probate of a will? How do
you bring before the court these jurisdictional facts? (3%)

SUGGESTED ANSWER: The jurisdictional facts in a petition for probate are: (1) that a person
died leaving a will; (2) in case of a resident, that he resided within the territorial jurisdiction of
the court; and (3) in the case of a non-resident, that he left an estate within such
territorial jurisdiction. The jurisdictional facts shall be contained in a petition for allowance of
will.

10) Probate of Will; Application of Modes of Discovery (2008)

An heir/oppositor in a probate proceeding filed a motion to remove the administrator on

the grounds of neglect of duties as administrator and absence from the country. On his part the
heir/oppositor served written interrogatories to the administrator preparatory to presenting
the latter as a witness. The administrator objected, insisting that the modes of discovery apply
only to ordinary civil actions, not special proceedings. Rule on the matter.

SUGGESTED ANSWER:
No, the administrator is not correct. Modes of discovery apply also to special proceedings. Sec.
2, Rule 72 states that in the absence of special provisions, the rules provided for in ordinary
actions shall be, as far as practicable, applicable in special proceedings.
 11) Probate of Will: Will Outside of the Philippines (2010)

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 estate. Rule on the motion. (5%)

SUGGESTED ANSWER:
The motion should be denied. Makati RTC has no jurisdiction over XYZ of Hongkong. The letters
of administration granted to Winston only covers all Pedrillos estate in the Philippines.
(Rule77, Sec. 4) This cannot cover the annuities in Hongkong. At the outset, Makati RTC should
not have taken cognizance of the petition filed by Winston, because the will does not cover any
property of Pedrillo located here in the Philippines.

12) Settlement of Estate (2010)

Sal Mineo died intestate, leaving a P1 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. (5%)

SUGGESTED ANSWER:
The opposition should be overruled for lack of merit. The allegation that there was a genuine
effort to settle the estate amicably before the filing of the petition is not required by the Rules.
Besides, a petition for issuance of letters of administration may be contested on either of two
grounds : (1) the incompetency of the person for whom letters are prayed therein; and (2) the
contestants own right to the administration. (Sec. 4, Rule 9).

13) Settlement of Estate (2009)

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) Suzys action
had already prescribed. Are Rosie and the Three Children Correct? Explain.

SUGGESTED ANSWER:
NO, the contention is not correct. Suzy can file a complaint to annul the extrajudicial settlement
and she can recover what is due her as such heir if her status as an illegitimate child of the
deceased has been established. 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 intended for the
protection of creditors and was never intended to deprive heirs of their lawful participation in
the decedents estate. She can file the action therefore within four (4) years after the settlement
was registered.