Special Proceedings TSN 1st Exam
1
Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
NB: No TSN for the March 15 lecture 
NOVEMBER 19, 2013 – GETTING TO KNOW EACH OTHER
The Rules on Special Proceedings is composed of Rules 72 up to
109. The bulk of the special proceedings is on the settlement of
estate of a deceased person and I have here an outline of the topics
as well as the cases that will be taken of. If you notice, this is not
necessarily arranged according to the number of the Rules. This is
arranged per topic. So the rules may cross-refer to the rules
involved. Why because it is much easier, much clearer to present the
topic that way… (talks about the outline, future reporting activity,
weight of exams, the famous “sink or swim” line, etc.)
Special proceeding, they say, is a boring subject because we’re
talking about dead people here, about the settlement of their estates.
But mind you, this is the subject that can be very complicated and is
often the cause of trouble among family members. Mana-mana ito
eh. The counterpart, the substantive provision for this, is Succession.
And I suppose you had already taken up your succession. So this is
now the procedure, on how you apply what you learned in
succession in judicial proceeding for instance. So you have to have
a good working knowledge of your subject in Succession. Basic
knowledge. Of course you also need to have a basic understanding
of your Civil Procedure, pwede na rin yung Obligations and
Contracts, but very basic yung Civil Procedure. Time and again we
will be referring to some provisions in your Civil Procedure as well as
to some provisions of the Civil Code on Succession. (talks about
reading the cases in the original and not relying on digests, about
answering recitations, references, etc.)
NOVEMBER 26, 2013 – “HAPPY BIRTHDAY”
Who can define a special proceeding?
A special proceeding is defined as remedy by which a party seeks to
establish a status, a right or a particular fact. It is a generic term for
all civil remedies in courts of justice which are not ordinary actions.
In here ma’am, no form of pleading is required and as opposed to an
ordinary action which is an ordinary suit, special proceeding are
governed by special rules.
You said it is not the same as an ordinary action, how do you
distinguish it from ordinary actions?
An ordinary action, on the other hand, is a formal demand of one’s
right in the courts of justice in a manner prescribed by the court or
law. And here ma’am, the method of applying the legal remedies is
according to a definite established rules and it is an ordinary suit in a
court of justice, by which one party prosecutes another for the
enforcement or protection of a right, or the prevention or redress of a
wrong. Otherwise stated ma’am, it is more on adversarial in nature.
What are the subjects of special proceedings?
RULE 72, SECTION 1. Subject matter of special proceedings. —
Rules of special proceedings are provided for in the following cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) 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.
Which among these are no longer applicable?
 (k) Judicial approval of voluntary recognition of minor
natural children;
 (e) Adoption (We have new rules that supersede the
rules on adoption in the Rules of Court);
 (l) Constitution of family home (Prior to the Family
Code, there is a need for a petition for the constitution of a
family home. With the advent of the Family Code, there is
no longer a need to petition to constitute a Family Home);
and
Transcribed by Renan Lasala and James Bernal
 (c) Guardianship and custody of children (It is now
also provided in the Family Code).
Rule 72 is not an exclusive list ma’am. In addition ma’am, the
liquidation proceeding, petition for rehabilitation, arbitration and
alternative dispute resolution ma’am.
The question was what are subjects under Rule 72 that no
longer apply.
The subjects ma’am that no longer apply are Adoption; Judicial
approval of voluntary recognition of minor natural children; and
Constitution of family home.
Anyone here who has a different answer?
 Voluntary dissolution of corporations (because it is already
covered by BP 68 or the Corporation Code);
 It is said in the book of ____ ma’am that under the special
proceedings what will not be discussed in depth because it
is already covered by other laws are the (g) Hospitalization
of insane persons because it is the subject of DSWD and
other related laws, (d) Trustees because as it is properly
discussed already on the law of agency; and (h)Habeas
corpus because it is a proper of Constitution laws.
So they are no longer applicable? They are no longer the
subjects of special proceedings? The question was which
among these are no longer covered by special proceedings?
Inaudible…
With respect to the voluntary recognition of minor natural
children, why is it not anymore covered by special proceeding?
I think ma’am the provision has been already superseded by the
provisions of the Family Code ma’am wherein there is already
somewhat a procedure in which the minor children can prove their
filiation to their legitimate father. For example the showing of a
private handwritten document signed by the parent ma’am or he/she
has been continually recognized as a child. And also ma’am it was
provided there that in case the child dies a minor or becomes
insane, that particular procedure can be applied for by his kin or
relatives.
In a voluntary recognition of minor children, who is the
petitioner here? Check the rules. What rule is that?
Rule 105
Who is supposed to file the petition there?
Such child or his/her parents ma’am.
Rule 105,Section 1. Venue. — Where judicial approval of a
voluntary recognition of a minor natural child is required, such child
or his parents shall obtain the same by filing a petition to that effect
with the Court of First Instance of the province in which the child
resides.
Under the Family Code, what are the proof required to show
voluntary recognition of an illegitimate child?
Art. 172. The filiation of legitimate children is established by any of
the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall
be
proved by:
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws.
What is the probative value of the signature or the documentary
proof showing voluntary recognition under the Family Code?
That private handwritten document ma’am recognizing the child as a
child of that particular parent is only valuable during the lifetime of
the parent. If the parent already died, the child can no longer prove
his/her filiation.
Ma’am: So the family provides you presumptions: conclusive
and disputable presumptions. So if it is conclusive, then that
would render Rule 105 superfluous if the law itself provides
presumptions on the proof of filiation made by the parent or the
putative parent.
Does a COMPULSORY recognition of minor natural children,
does it fall under the special proceedings?
Yes ma’am.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Ma’am: It is NOT covered. Hernaez vs. IAC, May 7, 1992.
So if it is not covered, what is the nature of the action for
COMPULSORY recognition of minor natural children?
Ma’am: It is an ordinary civil action. And the reason is because
it is not among the enumerations under the Rules of Court.
Who will explain why the constitution of a family home is no
longer applied?
Because as mentioned earlier, there is no longer a need for a formal
constitution of the family home because as soon as a person and his
family lives and considers a house and lot as their family home, they
no longer need a proceeding to constitute their home as a family
home.
You are talking about family home constituted when the Family
Code was already effective. When was that?
The Family Code took effect in 1988.
So let’s say you have a Family Home constituted, or let us say
established (?) in 1985? What happens to it? Will you apply the
Family Code provisions which took effect in 1988 to a Family
Home that was established 3 years earlier? Or there is still a
need to follow the procedure under special proceedings for you
to say that that indeed was validly constituted as a Family
Home?
I think that there is still a need, …
How?
There are two ways. There is a judicial means of constituting it as a
family home. There is an extrajudicial means of constituting it as a
family home.
So how do you constitute a family home extrajudicially?
As to judicial means of constituting a family home, it is governed by
Article 240 and 242 of the Civil Code.
Art. 240. The family home may be extrajudicially constituted by
recording in the Registry of Property a public instrument wherein a
person declares that he thereby establishes a family home out of a
dwelling place with the land on which it is situated.
Art. 242. The recording in the Registry of Property of the declaration
referred to in the two preceding articles is the operative act which
creates the family home.
Ma’am: Okay. Arriola vs. Arriola, January 28, 2008 says that the
Family Code introduces the automatic institution of the family
home from the time of the occupation of the family residence
without the need for judicial or extrajudicial processes provided
under the Civil Code under 163. Spouses Kelly vs. Planters
Products Inc., July 9, 2008 says under the Family Code, there is
no need to constitute the family home judicially or
extrajudicially. All family homes constructed after the effectivity
of the Family Code (August 3, 1988) are constituted as such by
operation of law. All existing family residences as of August 3,
1988 are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the
Family Code. So there is a retroactive application of the Family
Code provision constituting family homes prior to the Family
Code. BUT, in the 2012 case of Ramos vs. Pangilinan, there is a
distinction made. Take not, Arriola vs. Arriola, Spouses Kelly vs.
Planters Products, speak of the constitution of family home
prior and after the effectivity of the Family Code. Deemed
automatic. No need for you to do anything for as long as that
residence is where you live being used as a family dwelling,
that is considered a family home. Now, in 2012, Ramos vs.
Pangilinan, it speaks of the benefit of the family home. Meaning,
must be exempt from execution and there the SC made a
distinction. For purposes of availing of the exemption from
execution by reason of the property being a family home, then
you make a hairline distinction on when it was established. If it
was established prior to the effectivity of the Family Code, then
there has to be a constitution of the family home in accordance
with the law enforced at that time. If it was established after,
then no further requirement is needed. So Ramos vs.
Pangilinan gives you that distinction but only in so far as
availing of the benefits of the family home. But if you talk about
the constitution of the family home, Arriola vs. Arriola, Spouses
Kelly vs. Planters Products, already says automatic. But when
you talk of availing of that exemption, then you should make a
distinction.
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
2
So what is the effect? If you gonna say that your family home
established prior from the effectivity of the Family Code is
exempt from execution then you must be able to show a valid
constitution of the property as a family home. How? By
showing proof that you have followed the procedure required
by the Iaw. If you cannot show compliance with the procedure
prescribed by law, then that family home is not exempt from
execution. The sheriff can go ahead and levy the property. But if
you can show prior compliance with the procedure prescribed
by law, then that can be given the exemption. It cannot be
levied. So you remember the case of Ramos vs. Pangilinan.
Why is a petition for liquidation of an insolvent corporation
considered a special proceeding?
So a petition for liquidation of an insolvent corporation considered a
special proceeding as held in the case of Pacific Banking
Corporation Employees vs. CA, the Supreme Court said that such
petition does not seek the enforcement or protection of a right nor
the prevention or redress of a wrong against a party. It does not pray
for affirmative relief for injury arising from a party's wrongful act or
omission nor state a cause of action that can be enforced against
any person.
What it seeks is merely a declaration by the trial court of the
corporation's insolvency so that its creditors may be able to file their
claims in the settlement of the corporation's debts and obligations.
Put in another way, the petition only seeks a declaration of the
corporation's state of insolvency and the concomitant right of
creditors and the order of payment of their claims in the disposition
of the corporation's assets.
Ma’am: Okay. So you will learn later as we go to the settlement
of the estate of a deceased person, that there is a similarity in
the procedure for the liquidation of an insolvent corporation
where creditors are made to file their claims. So that is similar
to the filing of claims by the creditors against the estate of a
deceased person. And in that regard, the petition for the
liquidation of an insolvent corporation is akin to the settlement
of an estate of a deceased person. Therefore, it is considered
as falling under the category of a special proceeding.
In Pacific Banking, there was a query whether a petition for the
liquidation of a corporation is akin to an interpleader action.
What is the ruling of the Supreme Court?
The Supreme Court ruled that it is not akin to an interpleader
because in an interpleader action there are two conflicting claimants
and there is one subject matter and the one who holds the subject
matter has nothing to do with or has no interest over the subject
matter. In a petition for the liquidation of an insolvent corporation
ma’am, a liquidator has an interest as the representative of the
corporation claims charged of its assets for the benefit of its
creditors.
Why a petition for rehabilitation is a special proceeding?
So a petition for rehabilitation is a special proceeding because it only
seeks to establish the status of the party or a particular fact. In this
case ma’am, the party merely seeks to establish his status as to the
inability of the corporate debtor to pay its debts when they fall due so
that a rehabilitation plan containing the formula for the successful
recovery of the corporation may be approved in the end ma’am.
What rules govern the petition for rehabilitation?
It is governed by the interim rules on corporate recovery ma’am
which is Section 1, Rule 4 of such Rule which states that the status
or facts sought to be established is the inability of the corporate
debtor to pay its debts.
What rule is that?
Rule 4, Section 1 of the INTERIM RULES OF PROCEDURE ON
CORPORATE REHABILITATION.
What administrative matter?
A.M. NO. 00-8-10-SC
Now, if you notice, there is a difference under this special rule
on rehabilitation vis-à-vis the rules on special proceedings as
stated in the rules of court, and one difference is the appeal.
How do you appeal in a petition for rehabilitation?
Ma’am: It is a special proceeding and yet there is a different
mode of appeal prescribed by that Administrative Matter.
What is the mode of appeal? How do you appeal in special
proceedings?

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Under Rule 109 ma’am, An interested person may appeal in special
proceedings from an order or judgment rendered by a Court of First
Instance or a Juvenile and Domestic Relations Court, where such
order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person,
or the distributive share of the estate to which such person is
entitled;
(c) Allows or disallows, in whole or in part, any claim against
the estate of a deceased person, or any claim presented on behalf of
the estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee or
guardian;
(e) Constitutes, in proceedings relating to the settlement of the
estate of a deceased person, or the administration of a trustee or
guardian, a final determination in the lower court of the rights of the
party appealing, except that no appeal shall be allowed from the
appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and
affects the substantial rights of the person appealing unless it be an
order granting or denying a motion for a new trial or for
reconsideration.
So how do you appeal from the special proceeding cases under
the Rules Of Court?
Ma’am: Okay, you go to Rule 41, Section 2, paragraph a.
Sec. 2. Modes of appeal.
(a) Ordinary appeal.- The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise
of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required
except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules
so require. In such cases, the record on appeal shall be
filed and served in like manner.
Ma’am: Okay, that’s how you make an appeal in a special
proceedings case. You need a record of appeal. And since you
require a record of appeal, how long would be your period to
appeal? Read Section 3.
Sec. 3. Period of ordinary appeal.
The appeal shall be taken within fifteen (15) days from notice of the
judgment or final order appealed from. Where a record on appeal
is required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days from notice of the
judgment or final order.
The period of appeal shall be interrupted by a timely motion for new
trial or reconsideration. No motion for extension of time to file a
motion for new trial or reconsideration shall be allowed.
For a petition for rehabilitation, what is the period of appeal, is it
the same as this one?
It is only for 15 days ma’am. Section 2 of Rule 8, it provides that
review of decisions or order on rehabilitation plan can only be
reviewed through a petition for review to the Court of Appeals under
Rule 43 of the Rules of Court within 15 days from the notice of the
decision or order.
Ma’am: So that’s the difference. You don’t go for an appellate
procedure as found in the Rules of Court for petition for
rehabilitation because the rules provide for a specific rule on it.
So it’s under Rule 43.
Why arbitration is a special proceeding? Okay, you read Section
22 and 23 of the Arbitration Law.
Sec. 22. Arbitration deemed a special proceeding. - Arbitration under
a contract or submission shall be deemed a special proceeding, of
which the court specified in the contract or submission, or if none be
specified, the Court of First Instance for the province or city in which
one of the parties resides or is doing business, or in which the
arbitration was held, shall have jurisdiction. Any application to the
court, or a judge thereof, hereunder shall be made in manner
provided for the making and hearing of motions, except as otherwise
herein expressly provided.
Sec. 23. Confirmation of award. - At any time within one month after
the award is made, any party to the controversy which was arbitrated
may apply to the court having jurisdiction, as provided in section
twenty-eight, for an order confirming the award; and thereupon the
court must grant such order unless the award is vacated, modified or
corrected, as prescribed herein. Notice of such motion must be
served upon the adverse party or his attorney as prescribed by law
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
3
for the service of such notice upon an attorney in action in the same
court.
Ma’am: You will find that the court that is required to intervene
in an arbitration proceeding or in the enforcement of an
arbitration award, the nature of the proceeding there is a
special proceeding. Same with the ADR law. You look at Section
10 of the ADR Law and you will find specific proceedings there
that will require court intervention and the nature of the
proceeding before the court is a special proceeding.
Ma’am: Now we have rules on special proceedings under the
Rules of Court. Does the Rule on Civil Procedure apply on
these special proceeding cases?
Yes.
Why?
Rule 72, Section 2
Applicability of rules of civil actions. — In the absence of special
provisions, the rules provided for in ordinary actions shall be, as far
as practicable, applicable in special proceedings.
How do you apply?
It is suppletorily applicable ma’am.
Does the rule in Civil Procedure on Joinder of Causes of Action
apply?
That is an exception ma’am because Rule 2, Section 5 ma’am No
joinder of the causes of action between a special proceeding and an
ordinary action is allowed because special proceedings do not
involve cause of action. Therefore, there’s no joinder of action when
one is a special proceeding and the other is an ordinary action.
Now what happened in the case of Guy vs. CA. Does that
prohibition found? What are the causes of action that were
joined in this case?
In the case ma’am, it was letters of administration and the other one
was determination of status of each heir. So in this case ma’am the
Supreme Court held that there is a joinder of causes of action
ma’am. This does not fall under the exception ma’am.
Ma’am: Are you sure? It was one to compel recognition and the
other to claim inheritance.
What is the nature of an action for compulsory recognition?
In that case ma’am, SC said that the 2 causes of action, one to
compel recognition and the other to claim inheritance, may be joined
in one complaint. It is not new in our jurisprudence provided that the
conditions justifying the joinder of the two causes of action are
present in a particular case. In other words, there is no absolute
necessity requiring that the action to compel acknowledgment
should have been instituted and prosecuted to a successful
conclusion prior to the action in which that same plaintiff seeks
additional relief in the character of heir. Certainly, there is nothing so
peculiar to the action to compel acknowledgment as to require that a
rule should be here applied different from that generally applicable in
other cases.
So let’s go back to Section 5, Rule 2 that the joinder shall not
include special civil actions or actions governed by special
rules with ordinary civil action. What is the nature of an action
to compel recognition? Compulsory recognition of a minor
illegitimate child? Is that a special proceeding? What is the
nature of the action?
It is an ordinary civil action ma’am and not a special proceeding.
And how about the action to claim inheritance?
It is also an ordinary civil action.
Are you sure? When you go to a settlement court and asks for
your inheritance, is that an ordinary civil action?
It’s a special proceeding.
Ma’am: So it is a special proceeding joined by an ordinary civil
action. Technically that is not allowed under Section 5, Rule 2.
But in the case of Guy vs. CA, the SC allowed it. So what are the
conditions why the SC allowed it?
Because ma’am it is incidental and collateral to the exercise of its
recognized powers in handling the settlement of the estate, including
the determination of the status of each heir. So while the original
action filed by private respondents was a petition for letters of
administration, the trial court is not precluded from receiving
evidence on private respondents' filiation. Its jurisdiction extends to
matters incidental and collateral to the exercise of its recognized
powers in handling the settlement of the estate.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Ma’am: Okay. So that falls under the limited jurisdiction of the
settlement court and another reason is that the parties were
already before the court and the court has already acquired
jurisdiction over their persons. It would be encouraging
multiplicity of suits if you require a separate proceeding for the
compulsory recognition of an illegitimate minor.
DECEMBER 3, 2014 – “WAG NINYO AKONG BINOBOLA” PART
1
We will go now to the settlement of the estate of the deceased
person. What are the two basic elements for the settlement of
the estate of a deceased person?
… ARE YOU SURE???
What are the modes of settling the estate of the deceased
person?
… ARE YOU SURE???
Ma’am: Answer is Section 1, Rule 74, how do you settle the
estate of a deceased person.
Sec. 1. Extrajudicial settlement by agreement between heirs. - If the
decedent left no will and no debts and the heirs are all of age, or the
minors are represented by their judicial or legal representatives duly
authorized for the purpose, the parties may, without securing letters
of administration, divide the estate among themselves as they see fit
by means of a public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in an ordinary
action of partition. If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit filed in the office of
the register of deeds. The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in a pending action for
partition, or the sole heir who adjudicates the entire estate to himself
by means of an affidavit shall file, simultaneously with and as a
condition precedent to the filing of the public instrument, or
stipulation in the action for partition, or of the affidavit in the office of
the register of deeds, a bond with the said register of deeds, in an
amount equivalent to the value of the personal property involved as
certified to under oath by the parties concerned and conditioned
upon the payment of any just claim that may be filed under Section 4
of this rule. It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two (2)
years after the death of the decedent.chanrobles virtualawlibrary
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.
What do you understand by extrajudicial settlement? Do you go
to court when you opt for an extrajudicial settlement?
No ma’am.
Under Rule 73, Section 1, do you go to court?
Yes ma’am.
So what are your modes of settling the estate of a deceased
person?
Judicial settlement and extrajudicial settlemet.
Okay,so taking into account these two kinds of settlement the
estate of a deceased person what are the basic requisites for
you to settle the estate of a deceased person regardless of
whether it is judicial or extrajudicial?
… Jurisdiction…
I am asking for the two basic requisites! For all you know you
are going to settle the estate extrajudicially. How do you define
a deceased person?
A deceased person ma’am is the one who died and left an estate for
his heirs ma’am.
And who is this decedent? Who will qualify as decedent under
Section 1 Rule 73?
… order that his succession may be opened.
And what do you understand of an inhabitant?
An inhabitant…
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
4
So a foreigner who died here, can his estate be settled through
the Philippines?
Yes ma’am… Are you sure?
When do you consider a person dead?
…
What are the kinds of death under the Civil Code?
Presumptive death and actual death ma’am.
When do you consider a person actually dead?
…brain dead..
So you consider a brain dead person dead?
No ma’am…
When?!
When he is clinically declared dead…
When do you know that he is clinically dead?
…
Ma’am: My goodness… Last chance… A person is dead, when
there is a certificate of death issued attesting to the fact of it.
Regardless of his brain dead, or not breathing or whatever, your
best proof that the person is dead, actually dead, is when there
is a certificate of death issued. Don’t make your life difficult by
defining a brain dead person. All you need to do is to get a
certificate of the fact of death.
Aside from actual death, what is the other kind of death
contemplated under the law?
Presumptive death…
What do you understand about presumptive death?
CIVIL CODE CHAPTER 4: PRESUMPTION OF DEATH
Art. 390. After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may
be opened. (n)
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has
been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four years.
When do you consider him dead for purposes of opening
succession?
(Please refer above)
Is the 10 year period absolute?
(Please refer above: Art 391)
So only 10 or 4 years? For the purposes of opening his
succession? Is that all?
I think there was a case when the Supreme Court… 2 years…
Ma’am: What case is that? Give me the title of that case.
Because when you talk of 2 years it is only for the purpose of
remarriage of a spouse, can wait for only 3 years, when there is
a danger of death under the Civil Code and under Rule 131
Section 3 on the presumptions.
What are the other instances when the 10-year period can be
shortened? It is there in the text of the law if you bother to read
it.
Section 131 of the Civil Code: If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in
What do you understand of an estate? How did the concept of
an estate evolved in our jurisdiction? Define an estate.
Properties left by the decedent ma’am for the heirs…

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
So by your definition of an estate, there should be heirs? Can
you have an estate without heirs?
No ma’am. A decedent may have no heirs.
What is the nature of an estate? What is the concept of an
estate during the early times?
… debt of the deceased. Now we have this principle and legal
Did you read the case of Limjoco vs. Intestate of Fragrante? So
what does it tell you on how the concept of estate evolved?
How it is defined and what is the nature of the estate?
Ma’am: So it is a person. It is a legal personality. It is not a thing
that is left merely by the decedent. Now having said that, would
you still insist on your former answer that the estate is merely a
thing left by the decedent?
….
X…………………………………………………….X
How did the case of estate evolved under our jurisdiction?
So under the case of Limjoco vs. Intestate Estate of Fragrante, it
says that the old rule provided that before the enactment of the Code
of Civil Procedure, it is before the enactment of the Code of Civil
Procedure, the heirs of a deceased person were considered in
contemplation of law as the continuation of his personality by virtue
of the provision of article 661 of the first Code that the heirs succeed
to all the rights and obligations of the decedent by the mere fact of
his death. But now, after the enactment of the Code of Civil
Procedure, it is already the estate which is considered as artificial
person for the purpose of enabling the disposition of the asset to be
properly made by the heirs.
Why did it happen that way?
It is to have that the estate has a separate personality, independent
of the heirs.
Why?
So that in the settlement of the estate ma’am, the properties instead
of being owned directly by the heirs ma’am, it is under the artificial
being with the estate ma’am for the estate to settle its debts or debts
to third persons or its liabilities before the net estate which goes to
the heirs ma’am.
Why is It that there was a change in the concept from the heirs
being an extension of the personality of the deceased person to
an estate as acquiring that personality of the deceased person?
What is the reason?
The reason provided ma’am was the reason was one in the nature of
a legal exigency derived from the principle that the heirs succeeded
to the rights and obligations of the decedent. Under the present legal
system, such rights and obligations as survive after death have to be
exercised and fulfilled only by the estate of the deceased and not by
the heirs ma’am.
So how do you define an estate now?
So an estate ma’am is the mass of property, rights and assets left by
the decedent.
What is the nature of an estate?
The nature of the estate it is an artificial person for the purpose of
enabling the disposition of the asset to be properly made.
Why is it considered as an artificial being?
The underlying reason for the legal fiction is by legal fiction by which,
for certain purposes, the estate of a deceased person is considered
a "person" is the avoidance of injustice or prejudice resulting from
the impossibility of exercising such legal rights and fulfilling such
legal obligations of the decedent as survived after his death unless
the fiction is indulged.
Why would there be an injustice?
Because if it is not considered as an artificial or a separate being
ma’am, the tendency would be the heirs would already own it
therefore, the payment of debt would be more difficult as compared
as to when it is considered artificial being separate and distinct from
the heirs.
Ma’am: Because if you if you were to consider the heirs as the
continuation of the personality of the deceased person, it
contradicts the concept that they also inherit from the deceased
person. So there is a legal inconsistency here. That is why you
have to allow an estate to be imbued with a separate legal
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
5
personality from which the heirs will inherit. Otherwise, there
would be an inconsistency. If you consider the heirs to be the
extension of the legal personality of the deceased, and they
stand to inherit, then there will be a conflict. Remember that the
estate will have to pay for the debts of the decedent. If you
consider the heir as extension of the personality of the
deceased, then that heir will be responsible for the payment of
provision that the heirs cannot be responsible for the debt of
the deceased. It is the estate that would be responsible for
such. And so the concept of a separate legal personality was
born. And that is in the person of the estate. So since an estate
is a separate legal personality, a continuation of the personality
of a deceased person, does it have a citizenship?
Yes ma’am. As provided in the case of Limjoco, in there the
decedent was a Filipino citizen. So in that case, the estate is also
considered a Filipino citizen. It acquires the same citizenship with
the decedent.
Ma’am: So it being a juridical person, a continuation of the
personality of the deceased, then it follows the citizenship of
the deceased person.
Can an estate include corporations?
Under the case of Lim vs. CA ma’am, the estate cannot include
corporations or property of the corporations included in the inventory
especially when the titles of the properties are in the names of the
corporation and not of the decedent. It is because of the
conclusiveness of title ma’am because in this case, the properties of
the corporation were named after the corporation itself and not the
decedent. So the SC said that there is no reason to pierce the veil of
the corporate personality and to include the properties of the
corporation to the estate of the decedent ma’am.
Will it be possible for the estate to be declared identical with the
corporation that was used as a dummy?
Because in this case, the personality of the coporation was not
pierced because the properties were named after the corporation.
So perhaps when the properties are named after the decedent,
maybe the corporation’s properties will be included in the estate.
How is that? If the property is in the name of the deceased,
(anybody?) include the property titled in the coproration’s
name, why? Can there an instance that the corporation be
considered as identical with the estate of a deceased person?
If there is any reason to pierce the veil of corporate fiction and the
presumption of conclusiveness of title in favor of the private
respondents may be not upheld. In Lim vs. CA, the SC said that the
corporate veil may be pierced when a corporation is just but the alter
ego of a person or of another corporation. Where badges of fraud
exist, where public convenience is defeated; where a wrong is
sought to be justified thereby, the corporate fiction or the notion of
legal entity should come to naught. So there’s a possibility.
What are the kinds of the settlement of estate?
The kinds of the settlement of estate are judicial and extrajudicial
settlements.
What are the kinds of extrajudicial settlement?
Extrajudicial ma’am and self-adjudication when there is only one
heir.
What are extrajudicial settlement and self-adjudication? Is not a
self-adjudication already an example of an extrajudicial
settlement?
The two kinds ma’am are when there is two or more heirs and the
other is when there is only one heir.
What document do you prepare when there is only one heir?
Affidavit of self-adjudication.
If there are several heirs what document do you prepare?
Public instrument for extrajudicial settlement of the estate.
Is it not that the affidavit of self-adjudication a public
instrument?
Yes ma’am.
So what kind of document do you prepare when there are
several heirs and you wish to settle the estate extrajudicially?
You read Section 1, what does Section say?
Rule 74,Sec. 1. Extrajudicial settlement by agreement between
heirs. - If the decedent left no will and no debts and the heirs are all
of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may,
without securing letters of administration, divide the estate among

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
themselves as they see fit by means of a public instrument filed in
the office of the register of deeds, and should they disagree, they
may do so in an ordinary action of partition.
So what document do they prepare?
Extrajudicial partition registered with the Register of Deeds.
What are the requisites for the extrajudicial settlement of the
estate?
The requisites for extrajudicial settlement are:
1. There is no will;
2. There are no debts at the time of his death or such debts
must have been paid. Even if there are debts there can
still be extrajudicial settlement if the heirs pay off the debt;
3. When the heirs are of age, or if minors, are represented by
legal guardian;
4. Execution of a public instrument;
5. The publication the newspaper in the general circulation;
6. Registration of the public instrument in the Register of
Deeds;
7. The bond.
What do you understand by debts? What are debts?
That can be considered as liabilities of the decedents. They are the
liabilities, payables and loans which the decedent fails to pay before
his demise.
Is that debt would only include?
It may also include the expenses of administration or expenses
which the estate will need to spend for the settlement of the estate.
Any expense that the estate will incur.
Are you sure? In the case of Gerilla vs. Di Figuracion, what
were the debts of the plaintiff here?
… By commissioner or by judicial administration.
What is the issue in Gerilla vs. Di Figuracion?
The issue there ma’am is whether or not there needs to be a prior
settlement of Leandro's intestate estate (that is, an accounting of the
income of Lots 2299 and 705, the payment of expenses, liabilities
and taxes, plus compliance with other legal requirements, etc.)
before the properties can be partitioned or distributed.
So what are the debts that were mentioned here?
So expenses, liabilities and taxes, plus compliance with other legal
requirements.
Is that all? What was the main argument why partition is not
proper in this case?
SC held that that partition is premature when ownership of the lot is
still in dispute.
Is that all?
There are two ways by which partition Rule can take place under
Rule 69: by agreement under Section 2 and through commissioners
when such agreement cannot be reached, under Sections 3 to 6.
Neither method specifies a procedure for determining expenses
chargeable to the decedent's estate. While Section 8 of Rule 69
provides that there shall be an accounting of the real property's
income (rentals and profits) in the course of an action for partition,
there is no provision for the accounting of expenses for which
property belonging to the decedent's estate may be answerable,
such as funeral expenses, inheritance taxes and similar expenses
enumerated under Section 1, Rule 90 of the Rules of Court.
In a situation where there remains an issue as to the expenses
chargeable to the estate, partition is inappropriate.
So what are the expenses contemplated in that case?
So funeral expenses, inheritance taxes and similar expenses
ma’am.
What are these similar expenses?
Under Section 1 of Rule 90?
Remember that the person who wanted partition was the one
who was absent for several years in the Philippines because
they migrated to the US. And so the ones left here were
burdened by the expenses. What are these expenses that they
wanted to accounted for before they can go to partition? Such
that partition is not proper at this time? What are those debts
that they wanted settled?
They claim that an accounting for the expenses chargeable to the
estate was necessary for the settlement proceedings.
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Special Proceedings TSN 1st Exam
6
It’s there in the case. What are the main contentions of the
respondents?
The respondents claimed that:
1. the properties constituting Leandro's estate cannot be
partitioned before his estate is settled and
2. there should be an accounting before anything else,
considering that they (respondents) had to spend for the
maintenance of the deceased Leandro Figuracion and his
wife in their final years, which support was supposed to
come from the income of the properties. Among other
things, respondents apparently wanted petitioner to share
in the expenses incurred for the care of their parents during
the ten years she stayed in the United States, before she
could get her part of the estate while petitioner apparently
wanted her gross share, without first contributing to the
expenses.
So if you analyze it, what are these expenses chargeable to the
deceased person, what are its debts that must be settled first?
Expenses for the taking care of the decedents ma’am.
So if there are still expenses that must be settled in connection
with the maintenance of the deceased during their final years,
expenses for the last expense, burial expense or estate taxes,
can you resort for extrajudicial settlement?
No ma’am. When there are still debts or expenses to be paid, you
cannot go into partition but you should go rather to the judicial
administration to settle the debts and liabilities of the estate.
There are two kinds of extrajudicial settlement, one is when
there is only one heir and second is when there are several
heirs. If there are several heirs, by agreement. If they cannot
agree what will they do?
If they cannot agree they go to judicial administration? They go
to court, but do they file for a petition for judicial
administration?
They file for a judicial settlement of the estate.
Ma’am: Wrong! They go for partition under Rule 69 if they
cannot agree. If they agree, then they can go for an extrajudicial
settlement by executing a written agreement to that effect.
However, judicial partition is not feasible if there are debts left
by the decedent. That is why you have no choice but to got the
settlement proceedings outline under this set of Rules. So you
have to be able to distinguish when do you have to go to
partition and when do you go to partition and when do you go
for settlement. Because these two are not the same. We have a
special civil action for partition under Rule 69. And that will only
apply if according to Gerilla vs. De Figuracion, there are no
debts left by the decedent. And when you see debts, they refer
to the expenses for the last years of the decedent, taxes, and as
well as the burial expenses. So all of these have been settled
and all you have left are properties among the heirs but they
cannot agree on how to partition the property, then you go for
the special civil action for partition under Rule 69. But if there
are debts as in the case of De Figuracion, then you don’t go for
partition, you file for a settlement case. So be very careful. Be
able to distinguish when to go for Rule 69 and when to go for
Rule 73.
Now, what is this presumption of no debt? Is there such a
thing?
Yes ma’am. It is provided under Rule 74, Section 1.
It shall be presumed that the decedent left no debts if no creditor
files a petition for letters of administration within two (2) years after
the death of the decedent.
Does that mean that you have to wait for 2 years after the death
of the decedent before you can settle his estate extrajudicially?
For you to say that the decedent has no debt therefore you can
go for extrajudicial settlement?
I think you don’t have to wait ma’am. Because the two years binds
the bond and the real estate wherein the real estate would be
charged with liability to creditors, heirs or other persons for the full
period of the 2 years ma’am after the distribution. So you can
extrajudicially settle before 2 years but the bond or the real estate be
charged.
Even if there are no assurance that there are still creditors who
will claim against the estate? Because there is no presumption
yet within the 2-year period?
Yes ma’am, you can extrajudicially settle.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
What are the benefits for settling the estate of a deceased
person before the 2-year period lapses or before the
presumption of no debt?
The heirs would now be able to enjoy the property if it is already
settled among them ma’am.
Ma’am: Under the tax code, you have to pay the estate tax
within 6 months from the death of the decedent. If you don’t
pay, then you are slapped with surcharges and penalties. That
is the benefit for settling the estate of the deceased even before
the 2-year period lapses. Even before the presumption of no
debt. Because the reality is in your Tax Code, you have to settle
within 6 months. Beyond that you are slapped with surcharges
and penalties. So even before you have the presumption of no
debt which you have to wait for 2 years, you have to already
settle. If there are no disagreements among the heirs, then you
have to settle extrajudicially. And you pay the estate tax to the
BIR within the 6-month period. The 6-month period cannot be
reckoned from the execution. Rather, it must be reckoned from
the date of death of the decedent. Same thing with the 2-year no
debt presumption, it is reckoned from the date of the death of
the decedent and not from the execution of any agreement. So
if you relate it with you taxation, then you are forced to settle
the estate within 6 months, otherwise you will be held liable for
surcharges and penalties.
Because there is a bond that is filed, the personalties can be
covered by that bond if somebody will show up later and claim
for their share or for the payment of the debts of the estate. If it
is real property then there is another assurance, there is
another guarantee that is provided for by the law for creditors.
Now supposing there are no debts, the logical conclusion
would be for you to go to extrajudicial settlement. But can there
be an instance when still you need to go for administration
proceeding or you have to file settlement case?
Yes ma’am. For example, there are no debts, you can still
institute admin proceedings for good reasons provided by..
What are examples of these good reasons?
The Supreme Court cited the instances of what are not
considered good reasons for judicial administration. Some of
which that are not considered good reasons are dispute among
heirs, or multiplicity of suits or in order for the person to have
legal capacity to appear in the case.
The problem with that case is that the SC, instead of defining
what good reasons are, gave what are not. But still there is that
window for you to opt for the settlement although its kinda hazy
at this moment because there is no specific instance cited by
the SC.
DECEMBER 3, 2014 – “WAG NINYO AKONG BINOBOLA” PART
2
When you say that the decedent left no will, what does that
mean?
There was no disposition of the property ma’am.
If he left a last will and testament, can you still opt for an
extrajudicial settlement?
Ma’am: So if there is a last will and testament, you have no
choice, you have to go for a probate proceeding.
Why is it that the extrajudicial settlement must be in a public
instrument?
So that 3rd parties maam would be notified maam.
What do you understand of public instrument?
Public instruments maa are instruments which are official records…
When is a document a public instrument?
When it has been notarized maam or it is an official document
produced by a government…
So if you have an extrajudicial settlement, how do you make it a
public instrument?
By notarizing it maam
Ma’am: So in other words, an extrajudicial settlement has to be
notarized. That’s one of the requisites for a valid extrajudicial
settlement
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Special Proceedings TSN 1st Exam
7
If there is disagreement, what would be the remedy?
File an action for partition maam.
Ma’am: And we have already established that partition cannot
be made if there are debts left. Therefore you need to go for
settlement proceedings.
Supposing you already have a settlement case filed, and it
turns out that the decedent left no debts, no will and all the
heirs are of age. Can you convert that proceeding to an action
for partition itself?
Yes maam (iaudible)
In other words, can you convert a special proceeding to a
special civil action for partition under the Rules. What is your
basis?
…
Ma’am: Okay, it can be converted in the case of Avelino vs. CA.
Ma’am: How about if you have an action for partition like in the
case of Gerilla vs. De Figuracion and it turns out, because you
have debts that are going to be settled, you have to go for
settlement. Can you convert an action for partition to a special
proceeding for the settlement of the estate?
No ma’am, because the debts need to be settled first before the
partition ma’am.
Exactly, can you convert an action for partition into a settlement
proceeding because you have still to settle the debts of the
estate. Why not?
Because the estate maam has the debts to be personally settled
maam before any..
Why not?!!!
Ma’am: Precisely you have already a partition case filed. In
Avelino there was a settlement case filed but was allowed to be
converted into an action for partition under Rule 69. In Gerilla
vs. De Figuracion, it was an action for partition but it was not
allowed because it was found out that there are still debts that
neeede d to be settled. And the one asking for partition had to
pay his share in the expenses for the maintenance of the
deceased before he can get his share in the estate.
Can you now convert that special civil action for partition into a
settlement case?
Ma’am: Exactly, that is why partition was not allowed. Because there
was no procedure under partition for the payment debts of the
estate. The only accounting provided for under Rule 69 is only for
the income of the property that needs to be partitioned. There is no
provision under Rule 69 on how you can pay the debts of the estate.
And the SC said that you cannot you cannot proceed with partition.
In other words, binara na ang partition under Rule 69.
Let us say barado na sya. Ngayon, pwede ka pa ba humirit and
you say okay, are not allowed for partition, can we convert this
into an action for administration for a settlement case? Can that
be done?
You file a bond ma’am for the payments of debts.
Ma’am: Okay. The case of Gerilla vs. De Figuracion did not
allow partition because there were still debts. So the key
element here for you to opt for extrajudicial settlement or
partition is there is no debt yet. Ang pinakaimportanteng
element is debt. That is the determining point whether or not
you go for a settlement proceeding or the extrajudicial
settlement or partition. Kung walang debt pwede kang
magextrajudicial settlement at pag nagdisagree on the partition
then you go for partition under Rule 69. Pag may utang, then no
chice settlement proceeding. So that is the determining point:
the existence of the debts. If these debts are known to the heirs
then no choice, you go for a settlement proceeding UNLESS the
heirs will agree to just advance the debts and settle among
themselves how to partition the property taking into account
the debts that had been settled by them in advance. Pwede yun,
that’s an exception. Pero kung nagmamatigasan ang mga heirs
like in the case of Gerilla vs. De Figuracion, walang choice, you
have to go for settlement proceedings. So when you prepare a
petition for the issuance of the letters of administration or for
the settlement of the estate of a deceased person you have to
allege that there debts left by the decedent. Other wise
kandidato yan for extrajudicial debts or partition under the
Rules.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
What is the effect if the document is acknowledged into a
notary public? What is the benefit of converting the agreement
into a public instrument?
… Does that mean that oral partition is not allowed?
It becomes binding on whom?
Against third persons
Eventhough without knowledge of it? Is that the effect of
notarizing the agreement, that you bind third persons? So if you
have a deed of sale now, that is forged, but you have it
notarized, does it bind the rest of the world?
No ma’am…
So what is the benefit of notarizing an document? What is the
effect?
It is presumed valid ma’am…
Can you attack it? How do you attack a notarized document?
Ma’am: When a document acknowledged before a notary public
becomes a public document, one benefit is that when you go to court
you only have to present it as a public instrument in terms of its
evidentiary value. For as long as you present a certified true copy,
that would suffice. You don’t need to authenticate the document as
to signature, etc. because it is a public document. That is one
benefit.
And for you to attack the validity of that document, what
quantum of proof should you come up with?
Ma’am: Clear and convincing evidence. Higher than mere
preponderance of evidence.
In the case of Teves vs. CA, was the document here upheld by
the SC valid or was it declared void?
SC said that the documents are Insufficient maam
Why? What was the main ground to question the validity of the
document here?
Forged ma’am.
Ma’am: Okay, the documents were alleged to be spurious,
meaning forged.
And did the SC agree with that allegation?
… it does not apply to heirs who have no knowledge thereof. It does not
Does the notarization of the extrajudicial settlement, or the
conversion of that document into a public instrument, is it
constitutive of the contract of partition? Does it create an
inherent effectivity between the parties such that if there is
acknowledgement b the notary public, it is not effective and
binding among the parties? Simply put, is the notarization an
essential requisite for the validity of the agreement?
No ma’am.
Can there be an oral partition?
Yes maam, however…
Can you prove oral partition without running counter to the
Statute of Fraud?
Yes maam,
So must a partition be in writing?
Not necessarily maam, however …
In the case of Hernandez vs. Andal, what was the main
disagreement among the parties?
Ma’am: Whether or not an oral partition can be proved in court.
What was the ruling of the SC? So can you prove an oral
partition?
Yes, maam…
Prior to Rule 74, Sec 1, what was the rule with respect to oral
partition?
Isn’t it that Sec 1 Rule 74 requires that the agreement must be
in writing. Precisely you have to put it in a public instrument?
How is that different now from the old rule that says that it must
be written? Or is there something more in the old rule which
says that unless it is written, it is void?
Ma’am: there is a distinction between the old rule and the new
rule. Both rules require that “must be in writing.” Correct.
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
8
Section1 Rule 74 says it has to be in writing and in a public
instrument registered with the Register of Deeds.
Ma’am: SC sad NO. Because the phrase “and not otherwise”
which was stated in the old rule was not carried over in the new
rule. Meaning to say even if the partition is not in writing, it can
still be given effect. It is not an inherent elemnt to the validity
and effectivity of that partition even if it is oral or verbal.
Precisely, you have an action to compel partition if you are able
to prove that oral partition in court because that is not covered
by the parol evidence rule. And the reason why it is not covered
by the parol evidence rule is because there is no disposition of
the real property. There is only a segregation. Why? Because
the transfer of ownership occurred from the moment of death of
the decedent. There is nothing more to transfer because it
happened upon the death of the decedent. As to requirement
that it must be in writing, SC said that di na kailangan kasi it
was not carried over the “and not otherwise.” So pwede, you
can prove oral partition. And if you can prove it in court, you
can demand for the partition of the property based on your
parole evidence.
December 10 (transcribed by Renan Lasala)
(RECITATION: Eps Lizada)
Q: What is the purpose of the Publication Requirement?
A: The purpose of the publication, as held in the case of Chua vs
Vargas, is for the protection of creditors and the publication of the
settlement does not constitute constructive notice to the heirs who
have no knowledge and did not take part in it because the same is
not notice to the fact of execution. The requirement of publication is
geared toward the protection of creditors for them to enforce their
claims against the estate.
Q: So when you publish the extrajudicial settlement, isn’t that
considered a constructive notice to the whole world?
A: Although it is considered a constructive notice to the whole world,
cover those who are deprived of their participation in the settlement
of the estate.
Why not?
A: Because pursuant to Sec 1 of Rule 74, it is required that all heirs
must participate in the settlement of the estate. Absent such
requirement, as when the heirs did not participate, then there is no
constructive notice as to them.
In the case of Cua, what was the significance of the ruling that
the publication did not constitute constructive notice to the
heirs?
Persons who did not participate and had no notice of the
extrajudicial settlement should not be bound thereby. Because heirs
should not be deprived of their lawful participation of the Estate.
But the fact that it was published, isn’t that enough notice about
the fact of the settlement such that even the persons/heirs shall
be deemed notified of the fact of settlement?
A: Although it can be construed that there is constructive notice to
the whole world upon publication, it remains that there could be
fraud amongst the heirs that they may be deprived of the
participation of the estate. It would be easy for the heirs to exclude
somebody who also had rightful shares to the estate.
What is the nature of the proceeding under Sec1, Rule 74?
A: Ex-parte.
Meaning?
A: An ex parte proceeding is proceeded by a single person and it is
not adversarial in nature.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Why is the publication here in Cua not considered constructive
notice?
Because the notice was given after the fact of execution.
So what?
The settlement was already executed, therefore, there was
distribution among the heirs. It cannot be construed as a
constructive notice as there was already execution of the estate
thereof.
Let us go to registration. What is the purpose of registration?
In Hernandez vs Andal, it serves as constructive notice and notice to
others.
Q: So you mean to say publication is not constructive notice,
while registration is constructive notice?
A: Ahhhhhm. As a general rule, publication is still constructive notice.
We’re talking about Sec 4 or Sec 1 of Rule 74. Is publication
constructive notice or not?
A: It is constructive notice but it is geared towards creditors.
Under Section 1? With respect to the heirs?
A: With respect to the heirs, it cannot be considered constructive
notice as to them.
Are you sure? Final answer?
A: Yes. No. Uhmm. I’m sorry Ma’am.
Ma’am Tiu: IT DEPENDS on the HEIRS if they participated or
not. IF they are participating heirs, then it constitutes
constructive notice for them to enforce their rightful shares that
they should have received by reason of this settlement. They
have two years. For those who did not participate, it cannot be
constructive notice.
Q: Registration is considered as constructive notice against
whom?
A: Against creditors and participating heirs.
Q: What happens if the settlement is not registered?
A: In the case of Hernandez vs Andal, the requirement that a
partition be put in a public instrument and registered has, in our
opinion, for its purpose the protection of creditors and at the same
time the protection of the heirs themselves against tardy claims. The
object of registration is to serve as constructive notice, and this
means notice to others. It must follow that the intrinsic validity of
partition not executed with the prescribed formalities does not come
into play when, as in this case, there are no creditors or the rights of
creditors are not affected. No rights of creditors being involved, it is
competent for the heirs of an estate to enter into an agreement for
distribution in a manner and upon a plan different from those
provided by law.
Would it nullify the validity of the settlement if it is not
registered?
I would have to qualify my answer Ma’am. If there are no rights that
may be impaired, then the rule would be relaxed. But if claims would
be filed, then it should nullify the agreed settlement.
What is your basis for that answer?
Section 1, Ma’am.
Again, how would the registration affect the validity of the
settlement agreement?
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
9
What is the main criteria for extrajudicial settlement? That there
are no debts, right? So why is it that you have to qualify your
answer whether there are creditors or not? Obviously, if you
know of creditors, then meaning the estate has debts. And if
that is so, you cannot go through extrajudicial settlement. You
have to go for judicial settlement. So, is that the proper
understanding of that particular ruling?
No, Ma’am. That was a weird answer. :D
I give you another chance, how do you explain the ruling of
Hernandez vs Andal?
When there is no registration, and there are debts outstanding, then
extrajudicial settlement is not the proper remedy. You have to do it
judicially.
How about registration? Will the absence of registration affect
the validity of extrajudicial settlement? Is the agreement void?
Ma’am Tiu: So there is no effect to the validity of the settlement
agreement if it is not registered.
Now, supposing the settlement agreement states that there are
no creditors, but in fact there are. What would happen now to
the agreement? What is the effect?
Void Ma’am. Because Section 1 specifically provides that there must
be no debts. So if there are in fact creditors, then it must be voided
because it does not meet that particular requisite.
(RECITATION: Karen Caesar)
What is this bond requirement?
The bond requirement is stated in Sec 1 of Rule 74. A bond should
be filed together with the public instrument or the affidavit with the
Register of Deeds, in an amount equivalent to the value of the
personal property involved as certified under oath by the parties
concerned.
What are the conditions of the bond?
It is to answer for any payment under Section 4 of Rule 74. It is to
answer for any claims brought about within 2 years after the
settlement and distribution of the Estate.
Who may claim against the bond?
Those who may claim against the bond may be the excluded heirs.
Under Sec 4, an heir or other person who has been unduly deprived
of his lawful participation in the estate.
When is the bond effective?
Such bond shall remain charged with a liability to creditors, heirs, or
other persons for the full period of 2 years after such distribution,
notwithstanding any transfers of real estate that may have been
made.
So you have the requisites for extrajudicial settlement of the
estate of the deceased person. Since the presumption here is
that there are no creditors, then the registration as well as the
publication requirements are actually added measures to
ensure that if there are omitted creditors, that they are given
proper notice of the fact of extrajudicial settlement. And that
they are given a period of 2 years within which to file their claim
against the Estate. That is why, as you have read in the cases,
the purpose of publication and registration is merely to protect
against creditors or to protect the creditors against tardy
claims. But it will not affect the right of the heirs who had been
excluded from the extrajudicial settlement.
And insofar as personal properties are concerned, the
safeguard there is the bond which is effective for 2 years.
Again, creditors can go after the bond within 2 years if they

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
have claims against the estate. Take note that the bond is
effective 2 years from distribution. NOT FROM REGISTRATION
or PUBLICATION, but from DISTRIBUTION of properties.
So, what is the effect of an extrajudicial settlement?
In the case of ALCALA vs PABALAN, the effect of extrajudicial
settlement after the actual division of the estate among themselves,
they became the absolute owners of their respective allotments and
were tenants in common of that portion of the property which
remained pro indiviso. After the mutual agreement among
themselves for the division of the estate, either actually distributing
their respective shares or leaving the same undivided, the property
in question was no longer the property of the estate, but the
undivided property of the heirs.
What else?
The co-heirs of the property become the tenants in common.
Is that all? Is that the essence of Alcala vs Pabalan? What is the
gist of this case?
There is no longer a need to appoint an administrator Ma’am,
because the property in question is already owned by the heirs.
Ma’am Tiu: The general effect is that there is no more estate to
speak of. It renders the settlement proceeding superfluous or
unnecessary. It bars the filing of the settlement claims. It bars
the filing of a petition for the issuance of letters of
administration or for the appointment of an administrator of a
nonexistent estate. That is the general and logical effect when
you have an extrajudicial settlement. Nothing to administer
because the property now belongs exclusively to the heirs who
received their shares! So it bars the filing of an administration
case, and if there is already one filed, then it calls for the
dismissal of such.
RECITATION: WILLIAM UY
Who are the excluded heirs?
The excluded heirs are those who are unduly deprived of their share
of the estate.
Are they bound by the settlement agreement?
No, because they were not part of it.
Now, if they are excluded, where can they claim against the
estate?
Under Section 4 of Rule 74, the excluded heirs must file their claim
within 2 years.
Are you sure? So, you are saying that an excluded heir must
file their claim within 2 years? Such that when they claim
beyond such period, they are barred?
Ma’am Tiu: The settlement procedure set in Rule 74 is an ex-
parte proceeding. That is why if you did not participate in it,
then you are not bound by it. If you are not bound by it, you are
not covered by the 2 year period in which to claim your lawful
share. That provision in the law that allows an heir to claim his
lawful share in the estate refers to an heir who PARTICIPATED
in the SETTLEMENT AGREEMENT BUT DID NOT GET HIS
RIGHTFUL SHARE. It does not pertain or contemplate of an heir
who did not participate or has no knowledge whatsoever of
such settlement agreement. That is what you call the excluded
heir.
(RECITATION: ANALYN)
So, what are the remedies of an excluded heir? If you are an
excluded heir, and then you discovered that your relatives have
already settled among themselves the estate of the deceased
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Special Proceedings TSN 1st Exam
10
person, what are your remedies? In the case of Sampilo, what
was the remedy availed of? Remember you are an excluded
hair, di magapply sayo yung 2 year period to file your claim.
Ano ngayon ang remedy mo? Give me the procedure. What
case was filed? That’s what I’m asking for! Habulin mo ang
property? Paano? What petition are you going to file? What
case will you file in court? Don’t give me generalities here, I’m
asking for specific remedies.
Ma’am Tiu: In the Sampilo case, the first step was to file a
judicial settlement case. Nagpa-appoint muna siya as
administrator bago niya hinabol ang properties. That was the
remedy availed of.
What was the ruling of the SC? Were they able to recover the
property?
It prospered! So that is one of the proper remedies. File a
judicial settlement, ask for the court to appoint you as
administrator, and then habulin mo ang properties.
Now in Llanera, what was the remedy availed of?
Ma’am Tiu: This is another remedy. File an action to recover
property based on fraud. If it is only against the heirs, then you
can file a direct action against these heirs to recover your share
based on fraud. For as long as you do it within the prescriptive
period.
Let’s go to Villaluz vs Neme, what was the remedy availed of?
Right to demand for the partition. That is another remedy, you
file an action for partition.
How about in the case of Ancog?
Also partition. So, in both cases, partition. What is the basis for
an action for partition?
The basis of partition is co-ownership. And the basis of the co-
ownership is that they are all heirs. And this co-ownership is
not affected by the extrajudicial settlement that was executed
precisely because the ones complaining are the excluded heirs
who are not bound by the extrajudicial settlement. And so
insofar as the excluded heirs are concerned, co-ownership still
exists. Because they remained to be heirs who are not given
their rightful share in the estate. That is the basis of partition,
they are all co-owners, and they should be given their rightful
shares in the interest.
Now, given that the heirs who are excluded maybe unaware of
the judicial settlement, and now those participating heirs who
settled among themselves may have sold the property to 3 rd
persons. What is now the remedy of the excluded heirs of the
purchasers of the properties of the estate? Can they hold these
purchasers/buyers liable against the estate? Can they claim
that they are innocent purchasers for value? How did the court
explain that in the case of Arenas vs Roces?
No, they are not purchasers for value. In such case, it was held that
the buyer of real property the title of which contain an annotation
pursuant to Rule 74, Section 4 of the Rules of Court cannot be
considered innocent purchasers for value. The annotation at the
back of the TCT referring to Rule 74, Sec 4 of the ROC was
sufficient notice to petitioners of the limitation on the seller’s right to
dispose of the property. The presence of an irregularity which excites
or arouses suspicion should prompt the vendee to look beyond the
certificate and investigate the title of the vendor appearing on the
face thereof. Purchasers of registered land are bound by the
annotations found at the back of certificate of title.
What was it that was annotated in the title?

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
That such is subject to the provision of Section 4, Rule 74 of the
Rules of Court with respect to the inheritance left by the deceased
SPS. CESAR ROCES and LILIO MONTINOLA.
Ma’am Tiu: If they buy the property despite such annotation,
then they cannot be buyers in good faith. That is the effect of
the annotation in the title. Therefore, if someone claims within
the 2 year period that they are entitled to a claim to the estate of
the deceased, then such buyers cannot claim good faith.
RECITATION: Jonaliz
How about the participating heirs? What is the effect of the
settlement agreement with respect to the participating heirs?
In Section 1 of Rule 74, if an heir participated, then he is bound by
such settlement.
And if he is not satisfied with his share? What is his remedy?
Then he may file a partition case in court within a period of 2 years,
under Section 4.
Wouldn’t you be estopped if you opt for partition when in fact
you signed that particular agreement?! Remember, you were a
participating heir.
Again, what case will you file if you are not satisfied of your
share after there was already an extrajudicial settlement in
which you yourself participated. You have to be creative here.
You can file an action for reconveyance based on fraud.
What else?
Ma’am Tiu: You can actually nullify extrajudicial settlement. You
can claim vitiated consent, mistake. Pwede mo ipa-annul! You
do not have to be limited to what the rules say. I-combine mo
kung gusto mo.
Let’s go to the remedies of an unpaid or defaulted creditor.
Before you know it, the heirs executed an extrajudicial
settlement claiming that they are no creditors. So what are your
remedies as an unpaid creditor? So if you are the creditor, what
is the easiest and most practical way of an excluded or
defaulted creditor?
Ma’am Tiu: YOU GO AFTER THE BOND! But if the bond is very
small, then wala kang choice, you go for settlement proceeding.
But if the bond is enough, just go after the bond! Why go to the
tedious process of settlement proceeding if you can just go
after the bond?
Who are liable under Section 4, Rule 74?
Ma’am Tiu: Apply Arenas vs Roces. Not only the distributees
can be made liable but also the transfers in interest. If the
property was sold to them by the heirs, then the title under their
name has that annotation, that it is open for claims within 2
years.
When do you apply the liability under Sec 4, rule 74? In what
proceeding?
Ma’am Tiu: It covers extrajudicial proceeding, YES. But only for
summary settlement of estate. Not the regular settlement of
estate.
Is the annotation under Rule 74, Sec4 an encumbrance?
Yes, it is an encumbrance.
CASE: In Tan vs Benolirao, what is the significance of this
encumbrance?
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Special Proceedings TSN 1st Exam
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An annotation is placed on new certificates of title issued
pursuant to the distribution and partition of a decedent’s real
properties to warn third persons on the possible interests of
excluded heirs or unpaid creditors in these properties. The
annotation, therefore, creates a legal encumbrance or lien on
the real property in favor of excluded heirs or creditors. Where
a buyer purchases the real property despite such annotation,
he must be ready for the possibility that the title could be
subject to the rights of excluded properties. The cancellation of
the sale would be the logical consequence where:
a) The annotation clearly appears on the title, warning all
would-be buyers;
b) The sale unlawfully interfered with the rights of heirs;
and
c) The rightful heirs bring an action to question the
transfer within the 2 year period provided by law.
Ma’am Tiu: So aside from the fact that the buyer cannot be
purchasers for value and in good faith, he is also subject to that
lien. Such that within the 2 year period, if anyone comes up and
claims against the property, then he can be held liable under
Sec. 4 Rule 74. He is bound by that encumbrance. Another one
is that, if you sell this particular property, and then you put
there that it Is free from liens and encumbrances, and it turns
out na may tatak pala yan ng Sec 4 Rule 74 annotation, pwede
mong ipa-invalidate ang sale through a breach of contract. It
will render the sale defective. That is the essence of Tan vs
Benorilao.
December 17, 2014
So let’s start with the judicial settlement.
What are the kinds of judicial settlement of the estate?
The kinds of judicial settlements are summary settlement under
Section 1 of Rule 74 and Regular Settlement Proceedings.
Who has jurisdiction over settlement cases?
It depends upon the value of the estate of the decedent ma’am.
MTC if the gross value of the estate does not exceed P300,000, or
P400,000 in Metro Manila.
RTC if the gross value of the estate exceeds the above amounts.
What amount are you looking at? Amount of what?
Amount of the value of the estate maam of the decedent.
What do you mean by value of the estate of the decedent?
All the properties and interest left by the deceased person maam.
So how do you determine the value of the property left by the
decedent?
If it is real property, then it is the fair market value at the time of
death. If it is personal, then you add them all up so that you will get
the jurisdictional amount.
If you say that that is jurisdictional, who determines the value?
Ma’am: The petitioner has to allege. It is not the court who will
determine. You have to allege if you are the petitioner because the
valuation would be the basis for the computation of the filing fees. If
you don’t pay the filing fees, the court will not acquire jurisdiction
over the petition.
Now, what is the nature of the court’s jurisdiction in settlement
cases?
It is limited jurisdiction maam.
Limited to what?
As a general rule, questions of ownership cannot be passed upon.
They are limited to the inventory of the estate in what are to be
included and what are to be excluded maam.
What else?
The extrinsic validity of a will if there is a will maam.
What else?
The testamentary capacity of the testator. And if there is no will and
there is a petition for letters of administration then the court can
determine if this person would be viable to be an administrator
maam.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Can the settlement court determine properties are conjugal or
separate property?
As a general rule, no maam because it cannot pass upon ownership
but as an exception to the general rule, it may pass upon and decide
provisionally maam, meaning they are not yet final.
Are you sure?
Yes maam.
So the determination of the property as conjugal or separate is
provisional in nature? What does Bernardo vs CA say?
While as a general questions of title to property cannot be passed
upon in testate or intestate proceedings, except where one of the
parties prays merely for the inclusion or exclusion from the inventory
of the property, in which case the probate court may pass
provisionally upon the question without prejudice to its final
determination in a separate action, however, when the parties are all
heirs of the deceased, it is optional on them to submit to the probate
court a question as to title to property, and when so submitted, said
probate court may definitely pass judgment thereon.
Will that same ruling apply if the determination of the character
of the property has been already the subject of a liquidation
proceeding in a nullity case?
No maam. If it has already been subject to a nullity case, then the
court which decided the nullity case, and not the probate court, will
determine whether it is conjugal or exclusive.
When the settlement court decides the issues of ownership
what is the nature of the finding?
If it is not by virtue of any kind of inheritance but title adverse to that
of the deceased or his estate, then it would only be provisional
maam. If it can be permanent, as held in Bernardo vs. CA, if the
heirs agree and there are no 3 rd persons or creditors wo can be
prejudiced maam.
Would that constitute res judicata, the finding of the settlement
court?
If it is provisional in nature, then obviously there is no res judicata.
But if it is final, then res judicata would, in my submission, apply
maam.
So it would amount to res judicata?
If as an exception to the general rule that ownership cannot be
passed upon, the court may pass issues on ownership only in
provisional character. If that is the case, then there is no res judicata.
But if it is the exception to the exception, meaning that the heirs
agree that questions of ownership must be passed and no 3 rd
persons and creditors are affected, then as held in Bernardo vs CA,
it is permanent, not provisional. SO in that case, res judicata will, I
believe apply maam.
Cite an instance to support your answer when res judicata
would apply. Cite a decided case.
I cannot decide a case maam. But there is a case where res judicata
will not apply, and that is in Jimenez vs. IAC, where the SC held here
that the court passing ownership to somebody is merely provisional
and does not constitute res judicata because it is not yet final.
If it is not res judicata, can the parties file separate case
involving the same issue?
Yes maam, they can.
Can the settlement court decide on or allow the rescission of
contracts?
It would depend maam. If the contract is executed at the lifetime of
the decedent with a 3rd person and not a supposed party to a
probate proceeding, then it cannot as was held in the case of
Lachenal vs. Salas. However, in Pio Barreto, the SC held that a
contract executed with the administrator with the imprimatur of the
probate court may be rescinded and the probate court may pass
upon the contract entered into by the administrator and a 3rd person.
Because what happened in Pio Barreto was there was an existing
contract between the decedent and some guy, a 3 rd person. Then,
the 3rd person entered into another contract with the administrator. It
was not the same contract. Therefore the 3 rd person submitted to the
jurisdiction of the court. That’s why the SC held that it is the
administrator entered into a contract with a 3rd person with
imprimatur of the court, it may pass upon its validity or it may be
rescinded maam.
How was it different from Lachenal?
In Lachenal, it was executed at the lifetime of the decedent. A
contract of lease. And if it would be passed upon by the probate
court, the contract of lease, the rent, the back rental, then it would
encroach upon the lives if a 3 rd person which is not a party to the
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Special Proceedings TSN 1st Exam
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probate proceeding. Basically, if it is executed during the lifetime of
the decedent, then the probate court cannot pass upon the validity of
the contract. If it is executed by the administrator, and it is with the
imprimatur of the court, then obviously the court can pass upon the
validity of the contract.
The property involved in two cases belongs to the estate of the
decedent. So why is there a different ruling?
In Lachenal, the probate court has no jurisdiction to pass upon
contracts entered into by the decedent and the a 3 rd person because
the 3rd person is not a party to the probate proceeding. Normally, it is
expedient and convenient that the question of title to property, which
arises between the decedent's estate and other persons, should be
adjucated in a separate action because such a question requires the
presentation of appropriate pleadings (complaint, motion to dismiss,
answer, counterclaim and reply). A resort to the modes of discovery
may be necessary so that the issues may be clearly defined and the
trial may be expedited. Those matters can be effectively
accomplished in an ordinary action rather than in the testamentary or
intestate proceeding. The court may also have to resolve ancillary
issues as to damages and counterclaims for money or property.
Ultimately, execution has to be issued. The execution of a judgment
is usually made by the Court of First Instance in an ordinary action
and not in a special proceeding. That is the ruling in Lachenal maam.
What is the main bone of contention in Lachenal? What is the
main issue there?
Whether or not the court with a probate capacity may pass upon the
validity of the contract of lease or the ownership of the property
subject in the contract of lease. The SC held that a probate court
cannot because it is a contract entered into between the decedent in
his lifetime and the 3rd person.
Was there a contract of lease entered by the decedent?
Allegedly yes maam.
And what was the claim of the lessee?
Lessee claimed that she is the owner of the motorboat and filed a
motion that the same be excluded from the inventory of the estate.
Ma’am: In this case, one party is asserting ownership.
In the case of Pio, what was the contract involved here?
Contract to sell.
Would that give rise to an issue of ownership?
No maam because ownerhip cannot be pass under a contract to sell.
Maam: So the main issue in the case of Pio is not really about
ownership. That is why, the issue posed here is, can the
settlement court rescind the contract previously entered into by
the decedent. That is answered in the case of Pio Barreto.
Yes maam. In the case of Pio Barreto, if the contract concerns a
pending transaction and in the midst of it the decedent died, but was
subsequently continued by the administrator and as ordered by the
probate court, then the probate court has jurisdiction to decide.
Hence, in the same way that it has also the power to rescind it, the
probate court have the power over transactions entered into by the
administrator (inaudible)
Can the settlement court resolve issues regarding the validity
of disinheritance?
The settlement court cannot resolve issues regarding the validity of
disinheritance maam.
Why not?
Because a settlement court basically settles the estate of the
deceased and in order to settle the validity of the disinheritance
maam, it has to be filed in a separate action.
Are you sure?
I would like to change my answer maam.
So does it have jurisdiction or not?
It has jurisdiction to pass upon the validity of the disinheritance or
preterition of an heir maam.
Why?
The respective inheritance of the heirs are passed upon therefore it
is necessary also in the proceeding that the court will determine the
validity of the disinheritance so that they will be no multiplicity of
suits and therefore there would be a fast disposition of the estate
proceeding maam.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
How about if there is a claim made by an acknowledged natural
child, will the court have jurisdiction to resolve that?
In one case, an illegitimate child alleging his (?) the SC said that the
court may validly consider or make the one alleging his illegitimacy
an interested party in the estate proceeding.
Is that within the jurisdiction of the settlement court?
The jurisdiction of the settlement court as to ownership is merely
provisional. And as to the legitimacy of the heir, in that case maam,
the one alleging is an illegitimate child for letters of administration
and the contention of the other parties is that his legitimacy should
be ajudged in a separate proceeding, In this case of Guy vs. CA, the
SC said that while the original action filed by private respondents
was a petition for letters of administration, the trial court is not
precluded from receiving evidence on private respondents' filiation.
Its jurisdiction extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the
estate, including the determination of the status of each heir.
How about application to fix the fees for the services rendered
to the estate, can the court resolve that? Lawyers claiming
attorneys fees.
When it comes to that part, the court can also resolve that. When it
is part of the process of the registration of the estate and settling of
the estate maam like hiring of lawyers and any other matter
incidental to the estate proceeding.
How about the annulment of partition or extrajudicial settlement
that was obtained through fraud, can the settlement court, rule
on that?
I think the court cannot rule on the annulment of extrajudicial
partition maam.
Why not?
In an action filed for an annulment of an extrajudicial partition, there
are matters or evidences which are not under the limited jurisdiction
of the probate court. So there has to be another action in the
determination of the validity of such partition. Therefore if the
partition is rendered to be void, then it is as if there is no petition.
So if you are an excluded heir, all the heirs had already
partitioned the property extrajudicially, so you have to file a
separate case before you can institute a settlement case? Or
are you going to file a separate case and in that proceeding you
will have the partition be declared void? Are you going to resort
to multiplicity of suits? Is that practical?
Ma’am: You go back to the remedy of an excluded heirs. That is
precisely what happened in Sambilo. Okay, in issues regarding
ownership, the court has limited jurisdiction and will not
entertain such issue if it involves parties not (related?) to the
jurisdiction of the court as held in the case of Bernardo vs. CA.
How about if the claim of ownership is by title adverse to the
decedent other than by inheritance. Can the SC entertain such
issue?
As held in one case maam who are claiming an adverse title in the
property that is the case in an estate proceeding then there has to
be a separate determination of the ownership of the property and not
in the probate proceeding.
Can the settlement court entertain counterclaims for moral
damages?
No maam.
Why not?
In order for a counterclaim to be adjudicated, there has to be also
presentation of evidence which requires a separate action…
Is that the reason?
In one case it was held that probate proceedings are purely statutory
in function limited to the control of the property and cannot extend to
the adjudication of collateral questions. A counterclaim with
(?)damage is an extraneous matters in an intestate or testate
proceedings maam. Therefore, it cannot be entertained in a probate
proceeding.
Ma’am: You have to remember that in a settlement case, there is
no cause of action. So there can be no counterclaim because
there is no violation of a right that you seek to enforce. A
counterclaim is only proper in an ordinary action. In the case of
De Borja, a counterclaim here was disallowed, a counterclaim
for moral damages. And the reason being, the cause of action
arose from defamatory statements that is not included in the
settlement case.
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Special Proceedings TSN 1st Exam
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What are the powers of the settlement court?
Provided in Section 3, Rule 73:
Section 3. Process. — In the exercise of probate jurisdiction,
Courts of First Instance may issue warrants and process necessary
to compel the attendance of witnesses or to carry into effect theirs
orders and judgments, and all other powers granted them by law. If a
person does not perform an order or judgment rendered by a court in
the exercise of its probate jurisdiction, it may issue a warrant for the
apprehension and imprisonment of such person until he performs
such order or judgment, or is released.
Where do you file settlement proceedings?
With the Court of the first instance provided that the decedent is a
resident of that where the court of first instance exercises jurisdiction
or the decedent is a nonresident, he/she has properties left in the
Philippines in the court of first instance where any of the properties
are situated.
If there are questions regarding the venue, can it be raised in a
separate proceeding? Can you question it in a separate suit?
If there are questions regarding the venue, the party who objects to
the venue will question it in the same court where the settlement was
filed.
So where is the venue of the settlement case?
The venue of the settlement case maam will be where the decedent
resides at the time of his death maam. If he is a resident decedent. If
he is a nonresident decedent, the venue is where any of the
properties left in the Philippines are situated.
So if the decedent is an alien, where will you file the settlement
of his estate?
If the decedent is an alien, it depends on whether or not he is a
resident of the Philippines maam. If he is a resident of the
Philippines, the settlement proceeding may be filed at the court of
first instance where he died. If he is a nonresident and left properties
in the Philippines, the settlement proceeding may be filed to any
court which exercises jurisdiction over the place where the
properties are situated maam.
Supposing there is an OFW, and has an estate in the
Philippines, where do you settle hi estate?
If his an OFW, it depends maam. If he dies abroad and the last
residence is in a particular place, the settlement proceeding will be
filed in that place where he is last a resident. If he died in the
Philippines, then at the place where he is a resident at the time of his
death. Ih he is an OFW, he can be considered as resident decedent
maam.
If he is an OFW?
Ma’am: Regardless of who is the decedent, our reckoning point here
is whether he is a resident or nonresident. Regardless of whether he
is an alien or a Filipino, the reckoning point is it is a resident or
nonresident. That is the only requirement in Section 1, Rule 73.
Now what do you mean by where he last resides? What do you
understand in the word reside?
Ma’am, in the case of Fule vs. Fule, it was held that "resides" should
be viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual residence
or place of abode and not legal residence or domicile.
In the case of Eusebio, how does the SC interpret the word
reside?
In the case of Eusebio maam, the court interpreted reside more of a
legal residence or domicile maam. It is defined as where the person
is physically inhabiting that place and he has the intention to return
in that place while in Fule maam, it is sufficient that there is personal
actual or physical habitation of the person.
In Eusebio vs. Eusebio, what are the elements of establishing
domicile?
it must have been one of choice, for which the following conditions
are essential, namely: (1) capacity to choose and freedom of choice;
(2) physical presence at the place chosen; and (3) intention to stay
therein permanently
And what do these provide?
Since in this stage, the decedent was only in QC for medical
treatment, the court held that not all the elements were present.
Intention to stay therein permanently was lacking.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
What were the proof adduced with respect to the residence of
the decedent?
Certificate of death maam and one of the sons put there the address
of QC maam.
Are you sure?
It was shown that before the decedent died, they intended to reside
in QC.
The decedent came from what province here?
From Pampanga maam.
And the settlement case was filed where?
In QC maam.
Was the venue properly made?
No maam, because at the time of his death he was never to transfer
in QC.
Was he able to actually reside in the house bought for him?
No maam because he passed away…
Ma’am: Because pending his transfer, he got hospitalized, and
then he died. Before he died, he married but his address was
San Fernando Pampanga.
Now, in Fule vs CA, was venue properly made? What are the
conflicting cases here?
The cases of Fule and Eusebio maam. In Fule, the court only
defined residence in the context of the venue of (?) it means no less
than the person’s place of abode provided he resides therein with
continuity and consistency.
In Fule, what are the residences of the decedent?
He died in Manila maam.
What was his last place of residence?
According to the certificate maam, the last place of residence of the
deceased is in Rizal, QC, however in the allegation, it was alleged
that he was a recedent of Calamba, Laguna.
So, where should be the venue?
The venue should be at the last place of the decedent at the time of
his death and in this case, the decedent died, according to the
certificate, at Rizal, QC, so the proper venue should be Rizal QC.
So what happened to this case given there was no proper
venue?
Dismissed maam.
In the case f Hao vs CA, what was the last place of residence?
It was in Manila, QC, because it was also the palce stated in the
certificate of death of the deceased person maam.
Where was it filed?
Before QC maam but it was opposed alleging that the last place of
residence is Angeles Pampanga.
Where should be the proper venue?
The court considered the death certificate as evidence as to the
residence of the decedent, hence it should be in QC maam. There
was also evidence that the decedent stayed for approximately 4
years in the house of his son in QC.
Ma’am: So this case of Hao, is somewhat similar in facts to
Eusebio, except that they actually transferred.
So what is meant of residence for the purpose of determining
venue?
In the case of Eusebio maam, the SC defined residence similar to
that of a legal residence or a domicile wherein there is intent to
remain. However in the case of Fule, SC held that residence means
actual physical habitation of the decedent at the time of his death
and in the case of Hao which was a reiteration of the case of
Eusebio, it was the legal residence or the place where the decedent
intended to remain maam.
So it is similar to domicile?
In case of Eusebio maam, SC defined residence similar to domicile
maam because they have to establish intention to remain the new
place of habitation maam.
Does residence refer to permanent residence?
In Eusebio maam, it refer s to permanent residence, however in
Fule, it refers to the actual physical place…
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
14
Maam: In San Luis vs. San Luis, the SC made a ruling that the
term residence is the same as the one laid down in the case of
Fule and Hao. It is a reiteration of the doctrine in Fule and Hao.
And it distinguishes the concept of residence between a
settlement case and for purposes of election. So for purposes
of settlement of the estate, residence or reside should mean the
personal actual or physical habitation of the person, actual
residence or place of abode. It is not the same as domicile in
election laws that there should be intent to return.
What is meant by the phrase in Section 1 that “The court first
taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts.”?
Maam: This only apply for nonresident decedents and not to
resident decedents because there is only one venue and that is
where he last resided at the time of his death. For the
nonresident, you have plenty of options if there are several
properties present in many locations. Now you choose. But
when you made your choice, it would exclude all the others.
Meaning you settle there, to the exclusion of others. The
purpose for that is for the orderly administration and seccesful
administration of the estate. Because regardless of the number
of properties of the decedent, there is only one estate, there is
only one settlement proceeding.
January 7 (Transcribed by Renan Lasala)
What are the requisites for Summary Settlement?
Sec2 of Rule 74. Whenever the gross value of the estate of a
deceased person, whether he died testate or intestate,
1) Does not exceed ten thousand pesos
2) That fact is made to appear to the court of first
instance having jurisdiction of the estate by the
petition of an interested person
3) There must be a hearing, which shall be held not less
than one month no more than 3 months from the date
of last publication of a notice which shall be published
once a week;
From Herrera book:
1) The gross value of the estate of a deceased person
does not exceed 10,000php;
2) That there are no existing debts;
3) That a bond has been duly filed;
4) That a proper hearing is held;
5) Publication of notice once a week for three
consecutive weeks in a newspaper of general
circulation.
When will you file a petition for summary settlement of estate?
Upon the death of the decedent Ma’am.
What would prevent a party from going through an extrajudicial
settlement instead? What would distinguish a judicial summary
settlement from an extrajudicial settlement?
Ma’am Tiu: So what distinguishes judicial summary settlement
is that there are debts. The moment that the estate has debts,
then you cannot avail of extrajudicial settlement. The only
difference is that the gross value of the estate does not exceed
10,000 pesos. Although the cost now of instituting summary
settlement proceeding is more than 10,000php. Who will
shoulder the cost of settlement proceedings, the parties or the
estate? So, wala nang matitira sayo! This particular provision of
the rules require amendment. It begs to be amended, but the
supreme court does not see it fit for amendment.
SO, what is the procedure for summary settlement?
Under Section 2, there must be a hearing which shall be held not
less than 1 month nor more than 3 months from the date of last
publication of a notice which shall be published once a week for

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
three consecutive weeks in a newspaper of general circulation in the
province, and after such other notice to interested persons as the
court may direct.
What is the nature of the hearing?
It is summary in nature. The court may, even without the
appointment of an executor or administrator, receive evidence
against the petition.
So if there’s a will, what will happen to the will?
It will still be probated but the nature of the hearing is summary.
After the will is probated, what happens next?
The court will determine who are the persons entitled to the estate,
and to apportion and divide it among them after the payment of such
debts of the estate as the court shall then find to be due.
So, what is the requisite before the court will order the
distribution of the residue of the estate after paying the debts?
Before the heirs can receive their distributive share after
payment of debts, what is the requirement?
Under Section 3, pay a bond.
Ma’am Tiu: So remember, that in summary settlement, there is a
bond required before distribution of the residue of the estate
may be allowed. It’s the same requirement as in extrajudicial
settlement. The only difference is that the value of the estate,
the existence of debts, and the possible existence of the will, is
allowed in summary settlement. So, you have to know the
distinction.
Let’s proceed to the regular settlement proceedings. What are
the types of regular settlement proceedings?
Testate and Intestate.
Where is the venue for testate proceedings?
Rule 73, Sec 1. Where estate of deceased persons settled. – If
the decedent is an inhabitant of the Philippines, whether a
citizen or alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of
First Instance in the province in which he resides at the time of
his death, and if he is an inhabitant of a foreign country, the
Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from the court, in the original
case, or when the want of jurisdiction appears on record.
Now, supposing, prior to the filing of a probate proceeding, an
intestate proceeding has been filed, where will you file your
probate proceeding?
In the case of Uriarte vs CFI of Negros, it was decided that if the
instestate proceedings has been commenced, and later on a will
was presented, the testate proceeding shall be filed in the same
court whether it is filed as an independent petition or a motion for
testate proceeding.
In this case, was the petition for probate filed in the same
intestate proceeding?
No. The petition for intestate was filed in Negros, while the petition
for probate was filed in Manila.
What should have the intestate court of Negros done, if we were
to follow the principle that “a will discovered after the
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
15
institution of intestate proceeding should be probated in the
same court”?
In this case, the lower court of Negros dismissed the petition for the
intestate proceeding. This is not correct.
What is the reason for such principle?
It is not in accord with public policy and the orderly and inexpensive
administration of justice to unnecessarily multiply litigation,
especially if several courts would be involved. This, in effect, was the
result of the submission of the will aforesaid to the Manila court. In
the second place, when respondent Higinio Uriarte filed an
opposition to Vicente Uriarte’s petition for letters of administration, he
had already informed the Negros Court that the deceased had left a
will in Spain. Therefore, he knew before filing the petition for probate
in Manila that there was already a special proceeding pending in the
Negros Court.
Why is Negros the proper venue and not Manila?
It is because of Rule 73, Section 1. The first court that took
cognizance of the settlement of the estate of the decedent, shall
exercise jurisdiction to the exclusion of all other courts.
However, in this case, the probate proceeding is filed in Manila,
was this allowed?
Yes. It was also held that, “It is well settled in this jurisdiction that
wrong venue is a waiveable procedural defect, and, in the light of the
circumstances obtaining in the instant case, we are of the opinion,
and so hold, that petitioner has waived the right to raise such
objection or is precluded from doing so by laches.
RECITATION: Jen Yanto
What is the nature of the requirement on probate of wills?
It is mandatory. Under Sec 1 of Rule 75, allowance necessary. – 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.
What is the scope of inquiry in probate of wills?
In Nuguid vs Nuguid, scope of inquiry is primarily limited to the
extrinsic validity of the will, that is, the due execution, the testatrix’s
testamentary capacity, and compliance with the requisites or
solemnities by law.
In this case, did the court limit itself on such scope?
No, Ma’am. As a general rule, the probate court is limited only to the
extrinsic validity. The intrinsic validity would only be dealt after the
will has been duly authenticated. However, in this case, there is a
peculiar situation wherein the petitioners and oppositors questioned
if the will is intrinsically a nullity. If the case were to be remanded for
probate of the will, nothing will be gained, as a great probability
exists that the case will come up once again before us on the same
issue of intrinsic validity. Result: waste of time, effort, expense, plus
added anxiety. For practical considerations, we might as well meet
head on the issue of the will’s intrinsic validity.
Ma’am Tiu: The issue on preterition would determine whether
the will is valid or not. So, you’re dealing with intrinsic validity.
And if the will is intrinsically void, what is the point of ruling on
it’s extrinsic validity? It’s a waste of time. If you’re going to rule
on the extrinsic validity, and yet at the end of it all, the will is
intrinsically void, then nothing will be gained. They will go back
to square one. So, this is an exception: if on its face, the will is
intrinsically void.
Now, there is a peculiar section in Nuguid that talks about the
difference of preterition and ineffective disinheritance, what are
these distinctions?

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Preterition consists in the omission in the testator’s will of the forced
heirs or any one of them, either because they are not mentioned
therein, or, though mentioned, they are neither instituted as heirs nor
are expressly disinherited. Disinheritance, in turn, is a testamentary
disposition depriving any compulsory heir of his share in the legitime
for a cause authorized by law. When preterition exists, the institution
of heirs is annulled. Ineffective disinheritance, on the other hand,
shall also annul the institution of heirs insofar as it may prejudice the
person disinherited.
In the case of Balanay vs Marinez, was the probate court
correct in looking at the intrinsic validity of the will instead of
the extrinsic validity?
Yes. The probate of a will might become an idle ceremony if on its
face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue.
Was the will here intrinsically void?
The court held that because of the conformity of the testatrix’s
husband to the provisions of the will, it already validated the will.
What were the circumstances in this case that enabled the
court to pass upon the intrinsic validity?
Ma’am Tiu: Initially, there was the issue of preterition of the husband
here, although a husband cannot be preterited. That was one of the
grounds. Plus the peculiar nature of the testamentary provisions
wherein there was a prohibition to partition the properties during the
lifetime of the husband, as well as the payment of the legitime of
children from the fruits of the property. SO these are the questions
that has been raised which point to the validity of the testamentary
provisions of the will.
Now, after the intrinsic validity of the will has been examined,
was the will valid?
Yes, it was valid.
Ma’am Tiu: So, only if the defect in the “will” will invalidate the
entire will can the court declare it in valid even at the probate
proceedings, and even if it’s supposed to limit itself to extrinsic
validity.
But if the effect of the will does not result to intestacy, the court
should proceed to determine the extrinsic validity of the will,
because the will is not invalidated in its entirety. Because the
probate court refused to proceed with the examination of
extrinsic validity, the Supreme court said, that’s where the error
lies. There should have been a determination of the extrinsic
validity, given that the only objectionable provision of the will
does not result to intestacy. Therefore, you proceed with the
determination of the extrinsic validity of the will. Kasi nauna e,
baligtad e. Dapat mauna ang extrinsic validity bago ang
intrinsic validity. But in this case, because of the issues raised,
inuna nila ang intrinsic validity. Now, since the defect of the will
did not result to intestacy, balik kayo sa step 1: determine now
the extrinsic validity. That was in Balanay.
In the case of Nepomuceno, there was an issue of the intrinsic
validity, what is this?
The designation of the mistress as the sole executor of the will and
she was given the free portion of the estate of the deceased.
So what are the peculiarities of the will that lead the court to
look at the intrinsic validity before passing on extrinsic
validity?
Ma’am Tiu: The husband (the deceased) acknowledged his
married status to a different woman in the will itself. But, at the
same time, acknowledged also his mistress because he got
separated from his wife.
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
16
What is the effect of that? Would it result to the nullity of the
will or only the disposition?
Was there a determination of the intrinsic validity of the will by
the lower court?
Yes, Ma’am.
Was the court correct in ruling upon the intrinsic validity during
probate?
Yes, the probate court was correct in ruling on the intrinsic validity of
the will because there were unusual provisions in the will, in this
case, the legacy given to Nepomuceno (the mistress).
Ma’am Tiu: You have to take note that in all these cases, the
parties have actively argued on the intrinsic validity of the will.
And that is the why the probate court was called upon to rule on
the arguments of the parties. In such situations, the Supreme
Court has repeatedly held that the lower court is within its
jurisdiction to rule on the intrinsic validity of the will if the
parties themselves actually argue about the intrinsic validity of
such will. That is what is common in all 3 cases.
RECITATION: YNA BOTE
What may be probated? What is the subject of probate?
The will left by a decedent.
In Seangio, a document containing a disinheritance.
A Codicil.
How about a revoked will, can it be probated?
Yes, Ma’am.
What’s the point? If it was already revoked?
You still have to verify if it really was revoked and if the decedent
intended for the revocation of that will.
And if it is proven? What’s the point of probating a revoked
will?
Ma’am Tiu: There is no point in probating a revoke will. It is a
waste of time, energy, and money. Partially revoked will, yes, it
can be probated.
Now, the will that was subject of probate, will it cover wills
executed abroad?
Yes, this is the case of Palaganas vs Palaganas. The requirement by
the probate court is that the will executed abroad must have to
comply with the rules of procedure in the country where it is
executed before it can be probated in this country.
Wouldn’t the will executed abroad require the prior probate of
that will abroad before it can be probated here?
No Ma’am. According to the case, our laws do not prohibit the
probate of wills executed by foreigners abroad although the same
have not as yet been probated and allowed in the countries of their
execution. Article 816 of the Civil Code states that the will of an alien
who is abroad produces effect in the Philippines if made in
accordance with the formalities prescribed by the law of the place
where he resides, or according to the formalities observed in his
country.
Now, why is it that a disinheritance should also be probated?
Because Ma’am, a disinheritance is also a form of disposition of the
property in a way that you are disposing of your property to NOT be
given to a specific person disinherited.
 Special Proceedings TSN 1st Exam
17
Based on the Syllabus of Atty. Geraldine Quimosing-Tiu

Now, in the case of SEangio, what kind of will was probated here?
It was a holographic will.
What was the content?
It was a disinheritance, and there was even no testamentary
disposition.
What is the point of probating that document?
If the decedent decided to disinherit a compulsory heir, and it was
validly made, then if that disinheritance was probated and accepted
by the probate court, it would result in the disposition of the property
of the testator in favor of those who would succeed in place of the
disinherited heir.
Was there somebody else who was instituted in lieu of the
disinherited heir in this case?
No, the disinheritance here being valid, it would convert the
supposed to be testate proceeding into an intestate one.
Ma’am Tiu: So, the intestate heirs would have more share in the
property because of the disinheritance of one of them. It results
to a bigger share, so in effect, that disinheritance is a
testamentary disposition although couched in a negative
language. It is not an express positive conferment of a
particular property in the estate, it is expressed negatively. But
the net effect is that the remaining heirs will have more share in
the estate. That is the effect of disinheritance, ergo it is a valid
testamentary disposition.
What is the effect of probate?
The effect of probate is to finally dispose of the estate of the
decedent.
Is that the purpose of probate? What does Sec 1 Rule 75 say?
The effect of the probate of the will is for the court to rule whether the
will was duly executed.
What is the covered by the due execution of the will that is
considered conclusive of the will passed probate?
Due execution means that:
1) The formalities required by law have been complied with;
2) That the capacity of the testator has been established (for
example, that he was of sound mind and did not act under
fraud or duress)
Ma’am Tiu: Simply put, when you say that the will has been
probated, it has been proven to be the will of the testator. That
the signature therein is his own and is not a forgery. That it has
complied with the formalities required by law, that there was no
undue influence, duress, or fraud. And that the executor at the
time of the execution of the will was of sound mind. He wasn’t
crazy! So you have to prove the state of mind of the testator
during the probate of the will, because anyone who opposes it
can interpose the defense that the testator was not of sound
mind. So, all of these are covered under the DUE EXECUTION of
the will which will be deemed conclusive if the will is
successfully probated by the probate court.
Ma’am Tiu: The explanation is very simple. When you say
annulment, what is the basic ground for annulling a document?
It’s basically vitiated consent. Now, if a will has passed probate,
there is now a conclusive finding as to the voluntariness of the
execution of the will. Necessarily, it being conclusive, it follows
that at the time of the making of the will, the testator was not
suffering from any vitiated consent. So, there is no such
remedy as annulment of a probated will because Sec 1 of Rule
75 says that, “a will that has been probated is conclusive as to
its due execution.”
What is the effect of the non-probate of the will?
If the will is not probated, it shall be inoperative. You cannot
enforce the will, because it did not pass probate. Again, go back
to Sec. 1! Only a probated will can be validly enforced.
Therefore, unless it is probated, it cannot be enforced. But are
there exceptions?
In the case of Mang-oy vs CA, although the will here was not
probated, the court sustained it on the basis of Article 1056 of the
Civil Code of 1899 which provides that “If the testator should make a
partition of his properties by an act inter vivos, or by will, such
partition shall not stand in so far as it does not prejudice the legitime
of the forced heirs.
Ma’am Tiu: So, the exception lies under the old Spanish Civil
Code. Article 1056. However, it is doubtful if there are still wills
that survived which are executed under the Spanish Civil Code.
So, this exception will be of fewer application. If not, it will
cease to apply because of the lapse of time. This case of Mang-
oy written by Justice Isagani Cruz is very entertaining.
RECITATION: Jesse Lagon
What are the types of probate?
Domiciliary and Ancillary.
Domiciliary- type of probate where the will is probated for the first
time.
Ancillary- type where the will was probated again in instances where
the will has to be reprobated.
Ma’am Tiu: When you say domiciliary, it is synonymous to
Principal, wherein the probate is done in the jurisdiction of the
decedent’s last domicile. That is why we call it domiciliary.
Ancillary, on the other hand, is the probate is done in any other
jurisdiction regardless of the domicile of the decedent.
Can there be joint probate of wills?
In our jurisdiction, joint execution of wills is NOT allowed. However,
joint probate of wills may be done. This is precisely what happened
in the case of Perez vs Tolete.
What were the circumstances in that case that the court was
called upon to jointly probate the will?
The respective wills of the spouses both contain a provision that in
case one would predecease the other, the surviving spouse would
own all their conjugal properties. But if their deaths could not be
presumed as to who died first, the husband will be presumed to have
died first.

Now, can a will that has passed probate be annulled?
No. In the case if Gallanosa vs Arcangel that, “the Philippines
procedural law does not sanction an action for the “annulment” of a
will. In order that a will may take effect, it has to be probated,
legalized or allowed in the proper testamentary proceeding.”
Why is it that there is no such animal as “ANNULMENT OF
PROBATED WILL”?
Ma’am Tiu: SO in this case, they died together in a fire, but
because of this provision in their respective wills, the husband
is deemed to have predeceased his wife.
Where were the wills probated first?
In New York, USA.
And why were the wills reprobated here?

Transcribed by Renan Lasala and James Bernal


Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
The mother of the wife avers that the will should be reprobated
in Bulacan because there are properties here in the Philippines.
So what is the purpose of reprobate? It is to make that will
effective here because there are properties here in the
Philippines. So, the mother wanted to be the administratrix of
the property located in the Philippines. How did she cause the
reprobate of the wills? Was it separate or joint?
It was separate but it was later on consolidated.
Ma’am Tiu: It was correct to have the joint wills probated here. It
was allowed for practical considerations. There are common
provisions in both wills, and in fact, they are interrelated. That
would matter in this case wherein a provision provides on who
would inherit because of the presumption on who died first.
When will the probate court acquire jurisdiction over the
probate proceedings?
The court may acquire jurisdiction by delivery of the will or by petition
upon the court for probate.
So, which court will have jurisdiction over the proceeding if the
will is submitted in one venue, and a petition was filed in
another venue?
In Rodriguez vs Borja, the Court wherein the will was delivered shall
commenced the proceedings under the principle that our laws favor
testacy over intestacy.
So what is the effect if the will is delivered in court? The will
itself is delivered without a petition, what is the effect of that?
That is what happened in Rodriguez.
It would still vest jurisdiction upon that court. This is because if a will
is deposited, the court could motu propio send notices to fix the time
and place for proving the will. This is under Sec. 3 of Rule 76.
Sec. 3 of Rule 76. Court to appoint time for proving will. Notice
thereof to be published. – When a will is delivered to, or a petition for
the allowance of a will is filed in, the court having jurisdiction, such
court shall fix a time and place for proving the will when all
concerned may appear to contest the allowance thereof, and shall
cause notice of such time and place to be published three weeks
successively, previous to the time appointed, in a newspaper of
general circulation in the province.
But no newspaper publication shall be made where the petition for
probate has been filed by the testator himself.
Ma’am Tiu: So under the rules, mere delivery of the will will
require the court to act on it as if a petition for probate has been
made. The mere delivery of the will will vest the court
jurisdiction to the exclusion of all other courts. So there are two
ways that a court can acquire jurisdiction: 1) when a petition for
probate has been filed; and 2) when a copy of the will is
delivered to court as stated in the case of Rodriguez vs Borja,
and as affirmed under Sec 3 of Rule 76.
January 14 ( transcribed by Renan Lasala)
RECITATION: Macmac Sinsona
Who may file petition for probate?
Under Sec 1 of Rule 76. Any executor, devisee, or legatee named in
a will, or any other person interested in the estate, may, at any time
after the death of the testator, petition the court having jurisdiction to
have the will allowed, whether the same be in his possession or not,
or is lost or destroyed.
The testator himself may, during his lifetime, petition the court for the
allowance of the will.
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
18
When the testator himself petitions for the probate of his own
will, what will be the effect?
Upon the allowance of the will, the proceedings were already
terminated. This is what happened in Maloles vs CA where Dr. Arturo
Santos file a petition for the probate of his own will. The reason for
this is that: 1) it is far easier for the courts to determine his mental
condition of a testator during his lifetime than after his death; 2)
Fraud, intimidation, and undue influence are minimized; 3) if a will
does not comply with the requirements prescribed by law, the same
may be corrected at once.
What is the reason why it terminates upon the allowance of
will?
Because the jurisdiction of the probate court is to rule on the
extrinsic validity of the will, so when the court allowed it for
probate, there were no more proceedings.
Isn’t it that when a will has been probated, it should give effect
to the will?
Not yet, because in this case, the testator was still alive.
When did the testator die, in the case of Maloles? When was it
granted?
Granted: February 16, 1996.
Died: February 26, 1996.
So, after the probate of his will, and he died, what is the next
logical step to take?
The intention of the testator as provided for his “will” will now be
given effect.
How? What is the next procedure?
The court now issues letters testamentary and settles the estate.
Motu propio? How is it done? Was the separate petition filed by
the executor for letters testamentary proper in the case of
Maloles?
Yes, Ma’am.
Why is it proper? Wouldn’t that be merely a continuation of the
previous probate proceedings?
Ma’am Tiu: You read this in relation to Nitscher vs Nitscher
(November 20, 2007), there is an apparent conflicting ruling
between these 2 cases. I leave that to you to read and
understand it on your own. It MIGHT come out in the exams.
Who is tasked to deliver a will?
Rule 75 Sec 2. Custodian of a will to deliver. – The person who has
custody of a will shall, within 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.
Also Sec 3. A person named as executor in a will shall, within 20
days after he knows of the death of the testator, or within 20 days
after he knows that he is named executor if he obtained such
knowledge after the death of 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.
What if he fails to deliver within the given period?
There are sanctions under Sec 4. A person who neglects any of the
duties required in the 2 last preceding sections without excuse
satisfactory to the court shall be fined not exceeding 2000php.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
And also Sec 5. A person having custody of a will after the death of
the testator who neglects without reasonable cause to deliver the
same, when ordered to do so, to the court having jurisdiction, may
be committed to prison and there kept until he delivers the will.
Can mandamus lie to compel the delivery of will?
No. In the case of Uy Kiao Eng vs Nixon Lee, the court ruled that,
“the writ of mandamus will not issue to compel an official to do
anything which is not his duty to do or which is his duty not to do, or
to give the applicant anything to which he is not entitled by law. Nor
will mandamus issue to enforce a right which is in substantial dispute
or as to which a substantial doubt exists.
Is delivery of a will a ministerial duty?
Yes.
So, mandamus will lie? So why is the writ of mandamus not
issued here?
Because he can avail of Sec 5 of the rules.
What is the character of delivering the will, public or private
duty?
Mandamus cannot be used to enforce contractual obligations.
Generally, mandamus will not lie to enforce purely private contract
rights, and will not lie against an individual unless some obligation in
the nature of a public or quasi-public duty is imposed. The writ is not
appropriate to enforce a private right against an individual. The writ
of mandamus lies to enforce the execution of an act, when,
otherwise, justice would be obstructed.
Ma’am Tiu: You read the case again, and see how the court
ruled upon that question.
(Transcriber’s note: Upon reviewing the case, parang di talaga
sinagot ng court kung public or private duty ang pagdeliver ng
will. Mukhang nagplay safe sila, I think. Nasa baba yung basis
ko.)
“In the instant case, the Court, WITHOUT unnecessarily
ascertaining whether the obligation here is in the nature of a
public or private duty, rules that the remedy of mandamus
cannot be availed of by respondent Lee because there lies
another plain, speedy, and adequate remedy in the ordinary
course of law.” [EMPHASIS in Italics supplied. NAKS ]
What should be the contents of the petition for allowance of a
will?
Sec 2 of Rule 76. A petition for the allowance of a will must show, so
far as known to the petitioner:
a) The jurisdictional facts;
b) The names, ages, and residences of the heirs, legatees,
and devisees of the testator or decedent;
c) The probable value and character of the property of the
estate;
d) The name of the person for whom letters are prayed;
e) If the will has not been delivered to the court, the name of
the person having custody of it.
But no defect in the petition shall render void the allowance of the
will, or the issuance of letters testamentary or administration with the
will annexed.
If there is a defect, will it be fatal?
No. Last sentence of the Section.
Does the petition for the probate of a will require that the
original will must be attached?
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
19
No. That was the ruling in Fran vs Salas. In this case, a photocopy of
the original will and its English translation was attached. This is
already sufficient. The court ruled that, “that the annexing of the
original of the will to the petition is not a jurisdictional requirement is
clearly evident in Section 1, Rule 76 of the ROC which allows the
filing of a petition for probate by the person named therein
regardless of whether or not he is in possession of the will, or the
same is lost or destroyed.
So, if the original copy of the will need not be attached to a
petition upon its filing, does that mean that the original copy of
the will need not be presented in court?
Ma’am Tiu: For purposes of filing the petition, you need not
attach the original. But for purposes of presenting it in
evidence, you produce the original. That is what Fran vs Salas
said.
RECITATION: Quibo
Once a petition for the probate of a will was filed, what will the
court do next?
Under Rule 76, Sec 3 and 4.
Sec 3. When a will is delivered to, or a petition for the allowance of a
will is filed in, the court having jurisdiction, such court shall fix a time
and place for proving the will when all concerned may appear.
(please read provision)
Ma’am Tiu: The court will issue a notice of hearing.
Is there a specific time that must be observed for the date of the
hearing?
There is none, Ma’am.
So, if the petition was filed January 13, you can set the hearing
on January 20?
No, Ma’am. The period here for the publication in a newspaper of
general circulation must be followed.
Is that publication requirement absolute?
Ma’am Tiu: It is not absolute. When the testator himself
petitions for the probate of his own will, there is no publication
requirement. Look at last paragraph of Section 3, Rule 76. You
qualify your answer.
Aside from publication of notice of hearing, what other notice
should be complied with?
Personal notice to the parties provided that they are known.
What do you mean by known parties? When are they
considered known?
When the addresses of such people are known.
Is this rule absolute?
Ma’am Tiu: Again, it is qualified. The only qualification here is
when it is the testator himself who asks for the allowance of his
own will, notice shall be sent only to his compulsory heirs. (last
paragraph of Section 4)
Supposing personal service of the notice cannot be made, how
do you comply the requirement of personal notice?
Ma’am Tiu: Personal service means it is handed over to the
person! If it cannot be done, then you do it by registered mail.
That is still considered personal. There are 2 modes of service
here: personal or by mail. It is provided in the rules! The
preferred mode is personal service. You go and look for this
person at the address indicated in the petition and you

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
personally give the notice. That is basic in your CIVPRO.
Personal service by summons, summons by registered mail.
That’s basic. 
Is the executor entitled to notice? If there are several executors
named in the will, are they all entitled to notice?
Yes, Ma’am.
Now, in reprobate proceedings, what are the notice
requirements?
Ma’am Tiu: Under Rule 77, Section 2. They have to comply with
the same notice requirements: publication, personal service of
the notice of hearing.
How about with respect to the intestate proceeding, what is the
notice requirement?
Ma’am Tiu: It is the same. Whether it is testate, intestate,
principal, or ancillary, the notice requirement is uniform.
Therefore, once you master the principle of the notice
requirement under Rule 76, you basically know the same
principle applies in reprobate or intestate proceedings.
Basically, there are 2 modes of notice requirements that must
be complied under Sec 3 and 4 of Rule 76. What is the
requirement of publication, and what is the requirement of
personal notice or service.
What is the purpose of publication here?
The purpose of publication is to bind parties that are not known. In
conformity also to the nature of the proceeding, which is an in rem
proceeding. The publication is basically to all interested persons a
party to the case.
So what if it is an in rem proceeding? What is the effect of the
publication?
It binds the whole world.
So is publication a jurisdictional requirement?
Yes.
If there is already publication, why is there a need for personal
service?
Is personal notice a jurisdictional requirement?
No. In the case of Alaban vs CA, personal notice is merely a
matter of procedural convenience and not a jurisdictional
requirement.
But what is the ruling of Aranz vs Galing?
It is an exception to the rule set forth in Alaban vs CA wherein the
court held that, “that the requirement of the law for notice is
mandatory.”
How do you reconcile the rulings between those cases, try to
harmonize the two. Because these 2 rulings seem to be
conflicting each other. Which is the general rule and which is
the exception?
If you are to prepare a petition for the allowance of the will,
would you specify the other heirs, would you allege in the
petition the names and addresses that you know about? Or are
you going to omit them, after all, publication will automatically
make them parties to the case? And I can invoke ALaban and
say, it’s only a matter of procedural convenience! Which would
you choose?
Ma’am Tiu: Compliance with the notice requirement actually
rests in your hands. Pwede mong I mane-obra ang petition mo
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
20
na unknown yung mga heirs na iba. So wala ng personal notice,
publication na lang tayo. But you know who they are. So what is
it gonna be? Papasok diyan ang Legal Ethics niyo. Are you
going to be that unscrupulous? You are going to hide to the
court the truth, para lang mas convenient sa inyo. So it’s a
matter of ethics now. It is a matter of principle.
So what is the general rule? Ano ang kelangan mong gawin? If
you know that the heirs are there, they live on that address, are
you going to specify them or not?
Specify Ma’am.
Ma’am Tiu: Therefore the general rule is that you must comply
with the personal notice requirement. Only when you really do
not know them in good faith, despite diligent efforts of locating
the other heirs, can you say and tell the court that “I’m sorry
your honor, we just do not know the other heirs.” Then you can
say, in good faith, without fear of being contradicted later on, na
talagang di niyo alam! So, the exception, that it is a mere matter
of convenience, that is only an exception kapag di talaga known
yung heirs, or you do not know their addresses. Because in the
case of Aranz, there was that mention of a known heir with the
wrong address. Considered unknown pa rin siya because the
rules require that their names will be known as well as their
addresses. So dapat dalawa ang alam niyo: the identities of the
heirs, and their addresses. Pag di naghatch ang dalawang yan,
then they are unknown heirs, such that you can be excused
from giving them personal notices. But they can still be made
parties of the case by reason of publication. BUT if you really
know them and their addresses, then you have to allege them in
the petition, and give them personal notices. Because it then
becomes mandatory, pursuant to the case of Aranz. Like I said,
it all boils down to your ethics. Are you going to be a liar or are
you going to be a lawyer? 
RECITATION: Karen Caesar
Who may oppose a petition for the allowance of the will?
The one who may oppose for the allowance of the will are any
person who is interested in the will. They may be the heirs that are
not included in the will.
Ma’am Tiu: The one who will oppose is the one that will benefit
from the disallowance of the will. So, you can hear of sad
stories, na yung tatay o lolo nila, they are contesting the validity
of the will on the ground na insane na raw ang testator. So
ginagawa nilang baliw ang kanilang sariling angkan, because
they do not like the will to be probated. Why? Because they do
not have a share in the will, or they get a lesser share as
compared to when intestacy governs the estate. It all boils
down to greed. So who are these persons interested?
The persons who will benefit are the collateral relatives.
In Acain, who was the oppositor?
The legally adopted of the deceased. She is interested because she
is a compulsory heir. She has the right to oppose the will because
she was preterited.
In Maloles, who was the oppositor? In this case, the probate of
the will was not opposed, because it is the testator himself who
petitioned it for probate. But after a died, there was an
opposition. Who opposed the testaments in the will?
It was the nephew and the nearest kin of Dr. de Santos because he
died without compulsory heir.
Was he considered an interested party to oppose the will by the
court?
No. Petitioner, in this case, even if he is the nearest kin of Dr. de
Santos, he cannot be considered an “heir” of the testator. It is a

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
fundamental rule of testamentary succession that one who has no
compulsory heirs may dispose of his entire estate by will.
He claimed to be a creditor, so why is he not an interested
person still?
When he raised the issue of being a creditor, that was merely an
afterthought.
Ma’am Tiu: So, if you are going to oppose the probate of a will,
you have to be very clear about the interest that you have in the
estate. You should be able to show that you would benefit from
the estate by the disallowance of the will. Because absent such
showing, you will not be allowed to participate in the case. Your
opposition will not be entertained by way of intervention. You
have to show sufficient interest. ONLY an interested person can
oppose the petition for the allowance of the will, or can
participate in testate or intestate proceedings.
How about a lawyer trying to enforce a contingent fee? Can he
not be considered a creditor, based on the contingent fee?
No, this is the case of Leviste vs CA. The court held that, “petitioner
had no direct interest in the probate of the will. His only interest in
the estate is an indirect interest as former counsel for a prospective
heir.”
Even if the agreement was to share a part of the property of the
estate? He cannot be considered?
No Ma’am.
Ma’am Tiu: This one deals with a lawyer’s principle in dealing
with a client with regard to his fees. So, if you’re gonna handle a
settlement case, make sure your fee arrangement is such that it
can stand under scrutiny.
How do you oppose the probate of a will?
Under Sec 10 of Rule 76. 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.
RECITATION: Kristel Fernando
Can you probate a lost or destroyed will?
It depends if it is holographic or notarial will. A lost or destroyed
holographic will cannot be probated because it must be in the
handwriting of the testator. If there is no other copy for that, then it
cannot be probated. But for a notarial will, it can be proven through
other means.
Ma’am Tiu: So the general rule is that: in the petition, you do
not have to attach the copy of the will. During trial or during
presentation of evidence, you produce the original. If the
original cannot be produced, let’s say it was lost or destroyed,
then you have to lay the basis for that. Show the court how it
was lost or destroyed, and all the other circumstances as
required under the rules.
What are the proofs needed in proving a lost or destroyed will?
Section 6 of Rule 76. No will shall be proved as a lost or destroyed
will unless the execution and validity of the same be established,
and the will is proved to have been in existence at the time of the
death of the testator, or is shown to have been fraudulently or
accidentally destroyed in the lifetime of the testator without his
knowledge, nor unless its provisions are clearly and distinctly proved
by at least 2 credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly and certified by the judge, under
the seal of the court, and the certificate must be filed and recorded
as other wills are filed and recorded.
What will the 2 credible witnesses testify on?
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
21
Ma’am Tiu: Section 6 Rule 76 applies in cases of notarial will.
How about a holographic will?
In case of a lost or destroyed holographic will, there must be at least
a copy or of the loss or destroyed will. If there is none, then it cannot
be proven. The will itself is the best evidence that it is indeed what it
is.
In the case of Rodelas vs Aranas, what kind of will was involved
here?
It is a holographic will. The original copy of the will, in this case, was
not presented in court. There was failure to present the original will,
just an alleged photocopy of such.
Did the court allow that only the photocopy was presented in
lieu of the original?
Ma’am Tiu: The very reason why a copy of a holographic will
should be presented in court is for there to be some basis that
the will was indeed in the handwriting of the testator. Because a
holographic will is one written, dated, and signed in the
testator’s own handwriting. So the only way to authenticate it is
to examine the handwriting. If there is no photocopy available,
then there can be no way of probating that lost holographic will.
But if you can produce a photocopy or a carbon copy of the
holographic will, then that can be allowed. PROVIDED, that you
were able to establish the circumstances why you are
presenting secondary evidence.
In notarial wills, it is not really a problem, because the notary
public usually has a copy. You can easily request one from
them. But in the event that there is a mere photocopy of a
notarial will, and the original has been lost or destroyed, you
still have to present evidence of the due execution and validity
of that notarial will. The formalities that have to be complied
with are very specific. Plus the fact that the will existed at the
time of death of the testator. And you should prove the
fraudulent or destruction of the will during the lifetime without
his knowledge. Why do you think that it should without the
knowledge of the testator?
Because if he knew of its destruction, but didn’t do anything about it,
then there would be an implied revocation of such will.
Ma’am Tiu: In short, even if the will has been lost or destroyed,
you can prove its existence, provided that you were able to
prove that the lost or destruction was not intended by the
testator during his lifetime. Because that will be considered a
revocation of the will.
So, in the event of lost or destroyed will, let’s say a notarial will,
how do you prove the contents? For holographic will, there’s no
problem because you have to produce a copy of the will, and
the contents are there. But for a notarial will, for instance, there
really is no other copy available? How do you establish the
contents of the will?
Let’s do a recap. Holographic will, you can only prove that it
was lost or destroyed if there is a copy. If it is a notarial will, you
can prove that it was lost or destroyed even without a copy. The
problem with that is how will you prove the contents?
Under Sec 6 of Rule 76, you present 2 credible witnesses.
Who could be considered credible witnesses in this regard?
The one who signed as attesting witnesses in the notarial will.
But if those attesting witnesses died?
Ma’am Tiu: The trend right now is to present a video. Kung wala
na yung attesting witnesses, then tawagin si notary public.
Anyone who was present during the execution of the will cqn be
called as witnesses.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Now, supposing the notarial will was not lost and it is not
contested, how do you prove it? What are the requirements?
Sec 5 of Rule 76. At the hearing compliance with the provisions of
the last 2 preceding sections (publication of notice under Section 3,
and personal notice or registered mail notice under Section 4) must
be shown before the introduction of testimony shall be taken under
oath and reduced to writing. If no person appears to contest the
allowance of the will, the court may grant allowance thereof on the
testimony of one of the subscribing witnesses only, if such witness
testify that the will was executed as is required by law.
How about of a holographic will?
2nd paragraph of Sec 5 Rule 76. In the case of holographic will, it
shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the
will and signature are in the handwriting of the testator. In the
absence of any such competent witness, and if the court deem it
necessary, expert testimony may be resorted to.
Supposing it is the testator himself who petitions probate of his
own will, what proof is needed in order to grant it?
Ma’am Tiu: If it is the testator who is the petitioner, then only his
testimony in court will suffice to grant the petition. After all,
there is no one who opposes the petition. But if there is an
oppositor contesting the soundness of the mind of the testator,
then it is a different story, because now, you have to bring in
experts. So we have dealt with uncontested wills.
How about if the will is contested? Let’s take first the notarial
will.
Section 11 of Rule 76. If the will is contested, all the subscribing
witnesses, and the notary in the case of wills executed under the
Civil Code of the Philippines, if present in the Philippines and not
insane, must be produced and examined, and the death, absence,
or insanity of any of them must be satisfactorily shown to the court.
What if the witnesses were not in the Philippines? What will you
do? Can you dispense of their testimony?
No. Under Sec 7, get their depositions.
Now, what if all of them are dead or insane?
Section 8 applies. If it appears at the time fixed for the hearing that
the subscribing witnesses are dead or insane, or that none of them
resides in the Philippines, the court may admit the testimony of other
witnesses to prove the sanity of the testator, and the due execution
of the will; and as evidence of the execution of the will, it may admit
proof of the handwriting of the testator and of the subscribing
witnesses, or any of them.
Again, the general rule when the will is contested is, present all
the subscribing witnesses. If not contested, only one will testify.
If the testator himself, none of those witnesses need to be
present and testify.
Let’s go to the contested holographic will. How do you prove it?
Sec 11 last paragraph. If the holographic will is contested, the same
shall be allowed if at least 3 witnesses who know the handwriting of
the testator explicitly declare that the will and the signature are in the
handwriting of the testator; in the absence of competent witness, and
if the court deem it necessary, expert testimony may be resorted to.
If it is the testator himself but the holographic will is contested?
Who has the burden of proof?
Section 12. If it is the testator who is the petitioner, and the will is
contested, then the burden of proof is with the contestant.
January 21 (transcribed by Renan Lasala)
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
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RECITATION: Donna Flores
What are the grounds for the disallowance of the will?
This is stated in Rule 76 Sec 9. The will shall be disallowed in any of
the following cases:
a) If not executed and attested as required by law;
b) If the testator was insane, or otherwise mentally incapable
to make a will, at the time of its execution;
c) If it was executed under duress, or the influence of fear, or
threats;
d) If it was procured by undue and improper pressure and
influence on the part of the beneficiary, or of some other
person for his benefit;
e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should be
his will at the time of fixing his signature thereto.
What does the first ground refer to?
It refers to the formalities of the due execution of the will.
And the second ground refers to?
It refers to testamentary capacity.
And the third ground? Does it refer to testamentary capacity?
Where would you categorize that?
It also refers to due execution, Ma’am.
In the case of Ortega vs Valmonte, what were the grounds to
contest the will?
The grounds raised of the oppositors were the ff:
1) Noncompliance with the legal solemnities in the execution
of the will
2) Mental capacity of the testator as he was in an advanced
state of selinity.
What was the specific circumstance to support the first
ground?
As to its due execution, the oppositors said that there was existence
of fraud. They claim that there was collusion between the notary
public and the wife. The varying dates of the execution and
attestation were made basis.
Why was there a variation?
There was a variation because when the testator along with the
attesting witnesses went to the lawyer to help him formalize his will,
the lawyer told them to return to another date for the attesting
witnesses and for the lawyer to explain to them the contents of the
will. However, when the testator and attesting witnesses returned to
the office, the lawyer was not there and they were told to return to
another date. The will was executed June 15, 1983 but it was
acknowledged August 9, 1983.
Ma’am Tiu: So, at that time, there were no computers yet. They
had to come back because the lawyer still have to type and
prepare the will. Can you imagine this is somewhere in Ilocos?
So they went to the home office of the lawyer. It was a very
provincial setting. When they wanted to draw a will, they cannot
do it right there and then. They had to come back to another
date. And that was the explanation given as to why there were
varying dates in the signing and the attestation of the
witnesses.
So, in terms of fraud? Was there fraud? And what was the
ground of fraud alleged by the oppositor?

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
The conflict in the dates did not constitute fraud. They were not able
to prove that there was fraud. The burden of proof was with the one
challenging the will to prove the existence of fraud.
Why?
Because the execution of the will itself provides a presumption that
the testator was voluntary and had good intent to execute the will,
such that, the one who opposes such presumption has the burden of
proof.
Ma’am Tiu: Because fraud is never presumed. The presumption
provided by law is only as to mental capacity or soundness of
the mind of the testator. With respect to fraud, it has to be
proven, the specific circumstances had to be alleged.
Otherwise, it can be a general averment that can be stricken off
from the pleadings.
Now, in this case, was the fact that the testator was more than
50 years older than the wife an instance where he could be
influenced or tricked into signing a will?
The SC ruled by saying that, “despite his advanced age, he was able
to identify accurately the kinds of property he owned, the extent of
his shares in them, and even their locations. As to the proper objects
of his bounty, it was sufficient that he identified his wife as sole
beneficiary. The SC ruled on the testator’s soundness of mind,
despite his age.
Who contested the will?
Leticia. The testator’s sister, and co-owner of the property which is
subject of the will.
Ma’am Tiu: Ganyan kadugo ang mga cases involving nito.
Family members are hurdling muds at each other. Just because
they cannot agree on who should get the property. The best
way to prove the voluntariness of the execution of the will is to
record it on video. That is a very objective piece of evidence.
So, the mere fact of the age gap between the testator and the
legatee or devisee, will not invalidate the wil because that fact
alone does not constitute fraud.
How about if the testator was alleged to be forgetful? Is that a
ground to invalidate the will?
In the case of Baltazar vs Laxa, the testator here was Paciencia. The
beneficiaries were Lorenzo, his wife, and their children. /the
oppositors were Antonio, the nephew of the decedent, and the other
oppositors were other distant relatives. When the will was set for
hearing, there were no oppositors even after its due publication. At
that time, only Dra Lim testified. Antonio was able to oppose
because according to him, Lorenzo had no right to bequeath the
properties because such were owned by his predecessor in interest.
He filed his opposition the following day that Dra Limpin testified in
court.
Ma’am Tiu: So, when the hearing was made, there was no
opposition, only one witness was presented in court. A day
after the hearing, an opposition was filed. So, naging contested
ang will, hindi na siya unopposed. Given that there was already
now an opposition, all the subscribing witnesses and the notary
public should be presented.
Were all the witnesses presented? Account for them.
Except for Dra Limpin, the other 2 witnesses, Faustino suffered a
heart attack and was bed-ridden, and Francisco was already dead.
Judge Limpin, the one who notarized suffered a stroke.
In the meantime, we have a danger here of witnesses not able to
testify in court as to the due execution of the will. So, this inability,
was it fatal to the probate of the will?
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
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No, the inability of all the witnesses to testify in court is not fatal to
the case. The court held that, Lorenzo was able to satisfactorily
account for the incapacity and failure of the said subscribing
witnesses and of the notary public to testify in court. Because of this,
the probate of Paciencia’s will may be allowed on the basis of Dra.
Limpin’s testimony proving her sanity and the due execution of the
will, as well as the proof of her handwriting.
Moreover, it bears stressing that irrespective of the posture of any of
the parties as regards the authenticity and due execution of the will
in question, it is the mandate of the law that it is the evidence before
the court and/or evidence ought to be before it that is controlling. The
very existence of the will is in itself prima facie proof that the
supposed testatrix has willed that her estate be distributed in the
manner therein provided, and it is incumbent upon the state that, if
legally tenable, such desire be given full effect independednt of the
attitude of the parties affected thereby. This, coupled with Lorenzo’s
established relationship with Paciencia, the evidence and
testimonies of disinterested witnesses, as opposed to the lack of
total lack of evidence presented by petitioners apart from their self-
serving testimonies, constrain us to tilt the balance in favor of the
authenticity of the Will and its allowance for probate.
So, is forgetfulness a valid ground for the disallowance of the
will?
No, it is not. The state of being forgetful does not necessarily make a
person mentally unsound. Forgetfulness is different from being of
unsound mind.
So kung ulyanin ka, manyakis ka, that is not a ground for the
disallowance of the will.
Let’s go to the case of Codoy vs Calugay. What kind of will was
involved here?
It is a holographic will, and it was contested.
So, how many witnesses should be presented?
3 witnesses are required. Six were presented in this case Ma’am.
However, some of the witnesses only testified that they were familiar
but they did not actually testify that they saw the testator execute the
will.
Were the testimonies of these six witnesses sufficient to prove
the probate of the will?
No. In this case, the court said that it was not sufficient for the
probate of the will. The court here readily saw that the strokes were
really different.
So what did the oppositor do? Given that despite the testimony
of the 6 witnesses, they were not satisfied that the necessary
proof was sufficiently adduced to probate the will. Did the
oppositors present contrary evidence?
No, they did not. They only said that the holographic will was a
forgery.
What was the basis of the court in denying the probate of the
will, when in fact, they did not present any evidence?
Remember, forgery is not presumed, you must substantiate
that. Instead, what did they do?
What was the basis of the ruling of the trial court?
They filed a demurrer to evidence. This is when a party presents
evidence and the opposing party feels that what they presented was
insufficient to establish their claim, then you file a demurrer.
Is demurrer applicable in special proceedings?
Yes, it applies.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Ma’am Tiu: This case actually deals with demurrer. There are
consequences when you file a demurrer. It’s different in a
criminal case. You ask for leave of court, if it’s granted, you file
your demurrer, and if the demurrer is denied, you can still
present evidence. If you file it without leave of court and it is
denied, then you can no longer present evidence, and the court
will rule based on the prosecution’s evidence. In CIVIL cases,
you file a demurrer to evidence and it is granted, the case will
be dismissed. But if the dismissal is appealed, and the
appellate court reverses the dismissal, automatically, the
judgment is reversed, and the other party can no longer present
evidence. That’s Rule 33 of the Civil procedure. If your demurrer
is denied by the trial court, can you present evidence? YES!
This is what happened here. The probate court granted the
demurrer, the civil case was dismissed. On appeal, the
appellate court reversed. And on reversing, the appellate court
said that you are now precluded from presenting evidence,
therefore, the will is now considered probated, kahit walang
proof ang oppositor. This is a contested holographic will. So
being contested, you must be able to comply of the number of
witnesses to present. Three witnesses. In this case, 6 ang
prinesent! Without any opposition evidence, on the basis of the
testimony of the 6 witnesses, nagrule ang trial court based on
the demurrer filed. Denied ang probate. Nireverse upon appeal,
sabi ng appellate court, granted ang probate. Tama ba yun?
What did the SC say?
So, out of the 6 witnesses, how many positively identified that it
was the handwriting of the testator?
Only 1, so the 3 witness requirement was not satisfied.
Now, why didn’t the Supreme Court just affirm the ruling of the
lower court?
Because they still allowed the witnesses to present evidence to
support their opposition. They denied the probate of the will not
mainly on demurrer but on the basis of the evidence presented.
Ma’am Tiu: Ok, so in this case, the SC did not apply the
consequence of demurrer under Rule 33 because given the
necessity of determining the due execution of the will, there has
to be an exhaustive presentation of evidence. Both for, and
against the probate of the will. And the only way to do that is to
allow either parties to present their respective evidence. So, the
rule of demurrer was not applied. Although it was availed of, but
it only resulted to delay. So, what did the SC do here?
The SC, being not sure if indeed it was the handwriting of the
deceased, remanded the case to the trial court with instructions to
allow the oppositors to produce evidence.
Ma’am Tiu: So, the court allowed them to produce evidence.
Why? Because given the lack of 3 witnesses to positively
identify the handwriting of the testator, such document cannot
be considered as the last will and testament of the testator,
given that they are certain questionable circumstances that
they have noticed in the will itself. They cannot allow a
fraudulent document to be considered as the last will and
testament of a testator. That is how important a last will and
testament is. It has to be ascertained that it is really the
document executed by the testator. Kasi unusual daw di ba?
Every disposition may date sa kanyang will. The SC was
concerned here, that if you apply the rule on demurrer, then
there is a possibility that a fraudulent document can be
considered as the last will and testament of the testator. The
number 1 purpose of probate is really to ascertain whether that
will is really the intended will of the testator.
RECITATION: Christian Jane
What will the court issue after a will has been probated?
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
24
A Certificate of allowance, under rule 76, sec 13. If the court is
satisfied, upon proof taken and filed, that the will was duly executed,
and that the testator at the time of its execution was of sound and
disposing mind, and not acting under duress, menace, and undue
influence, or fraud, a certificate of allowance, signed by the judge,
and attested by a seal of the court shall be attached to the will and
the will and certificate filed and recorded by a the clerk. Attested
copies of the will devising real estate, shall be recorded in the
register of deeds of the province in which the lands lie.
Ma’am Tiu: If you are the counsel for the petitioner of the
probate of the will, your job does not end after the court issues
an order probating a will. You have to see to it that copies
thereof were forwarded to the register of deeds and duly
annotated in the title was the certificate of allowance. Hindi pa
tapos ang trabaho mo, yehey ka na agad kasi panalo ka sa
petition mo. See to it that after you received the decision or
order, appropriate copies were submitted to the ROD for
annotation.
Let’s go to Ancillary Testate Proceeding governed by Rule 77.
This is also known as the reprobate of will.
What is the purpose of reprobate proceedings?
The purpose of reprobate proceedings is to allow the wills which
were already probated abroad in the Philippines.
Generally, what kind of wills are we talking about in reprobate?
Those wills executed abroad and already probated there.
In the case of Palaganas vs Palaganas, was it executed abroad?
It was executed abroad but it was not yet probated. So Rule 77 does
not apply, as this was not a case of reprobate. In order for Rule 77 to
apply, it must be executed abroad and ALREADY probated.
So what was applied here?
Rule 76.
Ma’am Tiu: Ok, Rule 77 speaks of foreign wills already probated
abroad. So 2 elements. Pag di yan probated abroad, can you
still have it probated here? Yes! BUT it will no longer longer be
governed by Rule 77. But it is considered as a principal testate
proceeding initiated by the Philippines, but only with respect to
properties found here.
Let’s take the case of Roberts vs Leonidas.
There were two wills that was executed in San Francisco. One
disposing of his properties in the Philippines as conjugal
property of himself and his second wife. The other will disposed
of his estate outside the Philippines. The bulk of his estate was
left to his second wife and his children.
The probate proceeding was filed in Utah on March 7, 1978. It
was admitted for probate by the Utah court on April 10, 1978.
But before the filing of the probate proceeding, there was
already a settlement proceeding being filed here in the
Philippines by the first wife. This is 2 months before filing of the
probate in Utah.
What happened after the wills were admitted for probate?
There was a motion to dismiss the intestate proceeding by Maxine.
However, there was a change of lawyer of Maxine, and the Motion to
dismiss filed by Maxine was withdrawn.
So the issue here is whether an agreement abroad, with respect
to the probate proceedings there, can be enforced here
although it is in disregard of the last will and testament of the
decedent. How did the court rule on this?

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
The court ruled that the probate of the will is mandatory. It is
anomalous that the estate of a person who died testate should be
settled in an intestate proceeding. Therefore, the intestate case
should be consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing the 2
cases.
Ma’am Tiu: Maxine was originally represented by ACCRA who
was replaced by Limqueco, and then replaced again by another
lawyer. So the motion to dismiss filed by Maxine in the intestate
proceeding was withdrawn when she changed lawyer. Nung
nagkagulo na sila at naisahan na sila ni Limqueco kasi
kinonchaba ni Limqueco, nagpalit siya ng lawyer hanggang sa
bumalik siya ulit kay ACCRA. Since natapos na yung project of
partition in accordance with the agreement in UTAH which is
not in accordance with the last will and testament of the
testator. Ano ang remedy? Eh nagfinal na ang partition nila. So
ACCRA came back to the picture and what they did was to file a
case for annulment of judgment on the ground of fraud. But
before that, meron pa silang finile at a different branch of the
court, what is it that they filed? Another petition for probate!
This is now the reprobate of the wills. Ok, note, initially, tama
ang ginawa ni Maxine! Ipapadismiss ang intestate, papalitan ng
reprobate proceedings. Nagpalit siya ng lawyer! So withdrawn.
So they went along with the intestate proceeding, which
according to the SC was anomalous because the testator died
testate. Why then would you settle it intestate? So they went
along nga, until they came up with the project of partition only
to realize later na naisahan sila sa project of partition yun. So
balik siya kay ACCRA, at dun si ACCRA nagdamage control.
There should have been a reprobate of the wills that were
already probated in Utah. Regardless of whatever agreement
they may have entered into abroad. So kung may will probated
abroad, no choice ka pa rin, you have to reprobate it here. This
is what this case is telling us.
What is the notice requirement?
The notice requirement is under Rule 77, Sec 2. When a copy of
such will and of the order or decree of the allowance thereof, both
duly authenticated, are filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the court
having jurisdiction, such court shall fix a time and place for the
hearing, and cause notice thereof to given as in case of an original
will presented for allowance.
Ma’am Tiu: Ok, so we’ve already taken up Sections 3 and 4 of
Rule 76 last time. The same notice requirement applies in
reprobate proceedings.
In the case of Perez vs Tolete, Perez argued that why would I
have to notify the other relatives of the daughter’s husband
when under the wills that she wanted to reprobate, she was the
sole and only heir. Kelangan pa ba? Because according to the
will of the wife, pagsabay silang namatay, presumed na si
husband ang nagpredeceased. Sa will ng husband, ganun din.
Since nung namatay si wife, wala na rin siyang anak, kasi sabay
sabay silang nasunog, then the sole heir of the wife is the
ascendant, yung nanay. So sabi nung nanay, why would I have
to notify the others? Ako lang ang sole and only heir. Why
would I have to comply with Sec 4 of Rule 76?! Is that correct?
No. The SC said, “the rule that the court having jurisdiction over the
reprobate of a will shall cause notice thereof to be given as in case
of an ORIGINAL WILL presented for allowance”. This means that
with regard to notices, the will probated abroad should be treated as
if it were an “original will” or a will that is presented for probate for
the first time. Accordingly, compliance with Sections 3 and 4 of Rule
76, which require publication and notice by mail or personally to the
“known heirs, legatees, devisees of the testator resident in the
Philippines” and to the executor, if he is not the petitioner, are
required.
Ma’am Tiu: Although reprobate siya, it’s as if panibagong will
ito. You still have to comply with the requirements. But there is
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Special Proceedings TSN 1st Exam
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another point in this case, what are the requirements that you
should comply with in proving a will already probated?
The SC held that, “the evidence necessary for the reprobate or
allowance of wills which have been probated outside of the
Philippines are as follows:
1) the due execution of the the will in accordance with foreign laws;
2) the testator has his domicile in the foreign country and not in the
Philippines;
3) the will has been admitted to probate in such country
4) the fact that the foreign tribunal is a probate court; and
5) the laws of a foreign country on procedure and allowance of wills.
Was the fact that the wills were admitted for probate abroad,
isn’t that enough proof of the due execution of the will in
accordance with the foreign law? How do you present the law of
a foreign country? How do you do that? You search the
internet, copy the law, and submit it to court?
Ma’am Tiu: Go to your rule on evidence. Andiyan yan!
Sec 24 of Rule 132. The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may
be evidenced by an official publication thereof or by a copy attested
by the legal officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has custody. If the office in which
the record is kept is in a foreign country, the certificate may be made
by a secretary of the embassy or legation, consul-general, consul,
vice-consul, or consular agent or by any officer in the foreign service
of the Philippines in which the record is kept, and authenticated by
the seal of his office.
Now, in the case of Ancheta vs Dalaygon, June 8, 2006 case,
that is what precisely what happened here. Pumalpak dito ang
lawyer. Was he able to prove foreign law, the law on Maryland?
Look up this case.
What is the effect of reprobate?
Rule 77 Sec 3. If it appears in the hearing that the will should be
allowed in the Philippines, the court shall so allow it, and a
certificate of its allowance, signed by the Judge, and attested
by the seal of the court, to which shall be attached a copy of the
will, shall be filed and recorded by the clerk, and the will shall
have the same effect as if originally proved and allowed in such
court.
Rule 77 Sec 4. When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will
annexed, and such letters testamentary or administration, shall
extend to all the estate of the testator of the Philippines. Such estate,
after the payment of just debts and expenses of administration, shall
be disposed of according to such will, so far as such will may
operate upon it; and the residue, if any, shall be disposed of as is
provided by law in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country.
It says here that the probate court will grant testamentary, in
whose favor?
What will the call the executor or administrator appointed in the
Philippines?
Ma’am Tiu: In a reprobate proceeding, Ancillary administrator
ang appointed. Dun sa abroad yung Principal administrator.
Magkakaroon ng ancillary administrator if the will did not
specify kung sino ang executor or administrator, so it’s going to
be an ancillary administrator with a will annexed. Kung
nakalagay kung sino ang magiging executor sa Philippines,

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
then that person will be issued letters testamentary and he will
be considered an ancillary executor.
February 4 (Transcibed by Renan Lasala)
RECITATION:
What is a special administrator?
A special administrator is a temporary administrator while a general
administrator is not yet appointed by the court.
What are the grounds for appointing such?
Rule 80, Sec 1. When there is a delay granting letters testamentary
or of administration by any cause including an appeal from the
allowance or disallowance of a will, the court may appoint a special
administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and
executors or administrators appointed.
What is the common cause for delay?
Non-agreement of the heirs in the probate proceedings as to who
should be appointed as Administrator.
Any qualification as to that delay?
Any delay, regardless of the cause, it can be a justification for the
appointment of special administrator.
Any other grounds?
Rule 86, Sec 8. If the executor or administrator has a claim
against the estate he represents, he shall give notice thereof, in
writing, to the court, and the court shall appoint a special
administrator, who shall, in the adjustment of such claim, have
the same power and be subject to the same liability as the
general administrator or executor in the settlement of other
claims.
So what happens? They are removed and a special
administrator is replaced? Can there be an executor and
administrator at the same time?
In this section, Ma’am, the executor or administrator and the special
administrator can coexist. The reason for this rule is precisely to
avoid conflict of interests.
Ma’am Tiu: The power of the special administrator under Rule
86 Sec 8 is only with respect to the claim of the general
administrator or executor. Insofar as the other obligations or
the duties of administrator or executor, he has no right to
interfere. It is only with respect to the claim filed by the
executor/administrator. And that is why, the court can direct the
regular administrator/executor to pay to the special
administrator necessary funds for his or her claim. Both can co-
exist here. But the power of the special administrator here is
only limited to the claim of the regular administrator/executor
against the estate.
Can you apply the order of preference to the appointment of
special administrator?
No. It is not applicable. In the case of Castillo vs Gabriel, the court
held, “the order of preference in the appointment of regular
administrator does not apply to the selection of a special
administrator. In the issuance of such appointment, which is but
temporary and subsists only until a regular administrator is
appointed, the court determines who is entitled to the administration
of the estate of the decedent.
So the requirement of having an interest in the estate does not
apply, in the case of a special administrator?
No, Ma’am.
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Special Proceedings TSN 1st Exam
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Are you sure?
-No answer provided-
Can there be two special administrators?
No, Ma’am. This was ruled in the case of De Roxas vs Pecson.
Are you sure? Where is that rule prohibiting it? What is your
authority for saying that there can be no 2 special
administrators?
Ma’am Tiu: The appointment of 2 special administrators, in the
case of De Roxas vs Pecson, was illegal because it separated
the conjugal and separate property of the deceased! The court
appointed a special administrator for each. That is why it was
not allowed. But are you saying now, that just because under
the factual circumstances of Roxas vs Pecson, there can be no
2 special administrators appointed by the court? Are you
generalizing it now? There was no ruling that the court is
prohibited from 2 special administrators. It is just that, under
the factual circumstances in this case, it was an error
appointing 2 special administrators to administer the conjugal
and separate properties of the decedent.
If a special administrator is simply a temporary administrator
pending issuance of letters testamentary of for administrarion
to the regular executor/administrator, and there can be 2
executors, or 2 administrators appointed by the court, can you
not say the same for special administrators? Especially if the
estate is so vast, that a single special administrator cannot
handle everything. So, there is no prohibition!
What are the powers and duties of special administrator?
Provided in Sec 2 and Sec 3 of Rule 80.
Sec 2. Such special administrator shall take possession and charge
of the goods, chattels, rights, credits, and estate of the deceased
and preserve the same for the executor or administrator afterwards
appointed, and for that purpose may commence and maintain suits
as administrator. He may sell only such perishable and other
property as the court orders sold. A special administrator shall not be
liable to pay any debts of the deceased unless ordered by the court.
Sec 3. When letters testamentary or of administration are granted on
the estate of the deceased, the powers of the special administrator
shall cease, and he shall forthwith deliver to the executor or
administrator the goods, chattels, money, and estate of the
deceased in his hands. The executor or administrator may prosecute
to final judgment suits commenced by such special administrator.
Ma’am Tiu: The special administrator actually has the same
powers as a regular administrator/executor except payment of
debts. That is not part of his job UNLESS ordered by the court.
Let’s go to co-administrator. What do you understand of this?
In Uy vs CA, a co-administrator performs all functions and duties and
exercises all the powers of a regular administrator, only that he is not
alone in the administration. The practice of appointing co-
administrators is not prohibited.
When do you appoint co-administrators?
In the same case, the appointment of co-administrators is for the
various reasons:
1) To have the benefit of their judgment and perhaps at all
times to have different interests represented;
2) Where justice and equity demand the opposing parties or
factions be represented in the management of the estate of
the deceased;
3) Where the estate is large or, from any cause, an intricate
and perplexing one to settle;

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
4) To have all interested persons satisfied and
representatives to work in harmony to the best interests of
the estate; and
5) When a person entitled to the administration of an estate
desires to have another competent person associated with
him in the office.
In the case of Uy vs CA, what was the reason for the
appointment of co-administrator?
The estate was so large that a co-administrator is needed to bring
about all the properties of the decedent to the estate.
In this case, was the appointment of co-administrator
simultaneous?
No, it was not. There was the appointment of administrator only to
the son, but then the court held that it is proper to also appoint the
other son as co-administrator. There is no violation to any rule when
this was done.
Ma’am Tiu: When there are conflicting interests that need to be
satisfied in the settlement of an estate, the court can actually
opt for an equal representation and the most equitable ruling
would be to appoint a representative from each faction as co-
administrators in order to avoid conflict between these two
factions. Also, that will lessen the conflict between the heirs
and will have the benefit of trasnaparency with regard to the
running of the estate. That would at least diminish, if not
eradicate, the squabble between these two factions.
What is the requirement before an executor/administrator can
assume his office?
They must file a bond under Rule 81 Sec 1. Such bond shall be
given even before letters testamentary or of administration shall
issue. (please see Rule)
How about a special administrator? Is he required to post
bond? If yes, in what amount?
Yes, under Sec 4 of same rule. The amount will be such sum as the
court directs.
How about co-administrators? Are they required? And in what
amount?
Yes, under Sec 3. When two or more persons are appointed
executors/administrators the court may take a separate bond from
each, or a joint bond from all.
Can there be an exception to this rule on the posting of bond?
Yes, when the decedent himself provides in his will that such
executor is exempt from giving bond, then it must be respected.
Ma’am Tiu: Therefore, this only applies to executor. Because
the testator must have provided for such in his will. It only
applies to testate proceeding.
Can the court require additional bond to be posted? And if so,
under what circumstances?
Yes, under Sec 2, last sentence. XXX the court may require of the
executor a further bond in case of a change in his circumstances, or
for other sufficient cause, with the conditions named in the last
preceding section.
What are the conditions attached to the bond?
Under Sec 1, a bond shall be conditioned as follows:
a) to make and return to the court, within 3 months, a true and
complete inventory of all goods, chattels, rights, credits, and estate
of the deceased which shall come to his possession or knowledge or
to the possession of any other person for him;
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Special Proceedings TSN 1st Exam
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b) to administer according to these rules, and, if an executor,
according to the will of the testator, all goods, chattels, rights, credits,
and estate which shall at any time come to his possession or to the
possession of any other person for him, and from the proceeds to
pay and discharge all debts, legacies, and charges on the same, or
such dividends thereon shall be decreed by the court;
c) to render a true and just account of his administration to the court
within one year, and at any other time when required by the court;
d) to perform all orders of the court by him to be performed.
Ma’am Tiu: In short, these will also form part of the duties and
obligations of the executor or administrator, and even the
special administrator. So, you have some time frames here.
Take note of that. Rendering of inventory-3 months; Rendering
of accounting- 1 year, all counted from the issuance of letters of
administration.
So based on the conditions found under Sec 1 of Rule 81, you
can already see the time frame, within which the executor or
administrator must perform with his duties and obligations.
This is now the proper time. This is when you submit to the
court a true and complete inventory of all properties of the
estate. NOT DURING APPOINTMENT, that is not the issue there.
All you have to know, is that there exists an estate, na di pa
nasesettle, and that there are debts that must be paid. Because
if there are no debts, what is the best solution?
EXTRAJUDICIAL SETTLEMENT. Pero kung may utang,
JUDICIAL SETTLEMENT. That’s all you need to know. And you
have to determine who is best qualified to be appointed as
administrator.
Kelan mo bubusiin ang nitty-gritty details of the specific
properties of the estate? THIS IS THE TIME! AFTER you have
already appointed an administrator, after the posting of the
bond, in order for letters to be issued, WITHIN 3 months, the
administrator must submit a true and complete inventory.
What happens if he does not comply with that duty?
If he does not comply with that duty, the bond can be made liable.
Also, it can be the basis for his removal as executor.
Now, because you were supposed to submit a true and
complete inventory of the properties of the estate, supposing,
there are properties that are hidden and not declared, how
would you try to ascertain to be able to include that in your
inventory? What is your remedy?
Rule 84, Sec 1. The executor or administrator to have access to
partnership books and property. The executor or administrator of the
estate of a deceased partner shall at all times have access to, and
may examine and take copies of, books and papers relating to
partnership business, and may examine and make invoices of the
property belonging to such partnership; (Please see provision).
Ma’am Tiu: So if you know that the deceased is involved in a
business venture, and you cannot have access to the books of
that partnership, then you can ask for a court order that these
books be disclosed to you. You have that power because you
are the administrator. If they refuse the administrator access to
such books despite order, then they can be cited for contempt.
Supposing the administration will entail payment of debts or
expenses for administration, how will these be settled or
addressed? Who has the power to pay debts and expenses of
administration?
Under Sec 3. An executor or administrator shall have the right to the
possession and management of the real as well as the personal
estate of the deceased so long as it is necessary for the payment of
debts and the expenses of administration.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Can he file suits?
Yes. Under Sec 2 of Rule 87. For the recovery or protection of the
property or rights of the deceased, an executor or administrator may
bring or defend, in the right of the deceased, actions for causes
which survive.
What do you understand of the term “may compound with
debtor” under Sec 4 of Rule 87?
In my opinion, it is to compromise with the debtor with regard to the
debt he owes the deceased.
What are the conditions for it to be valid?
It must have the approval of the court.
Aside from that, what are the other powers?
Under Sec 5, he may foreclose mortgages. NO COURT APPROVAL
is needed here.
Under Sec 6, examination of persons, which is another power,
how is this different from the examination of partners?
Ma’am Tiu: Under this provision, there is fraud and
concealment involved. Whereas on the examination of partners,
there need not be fraud! Here, there are reasons to believe that
there is fraud involved. So, if it involves a fraudulent
transaction, then you can invoke this particular provision, to
have more information.
What would happen if you availed of this provision, and in the
course of the examination, you found out that, indeed, there
was fraud. Will that be reason enough for that property that was
fraudulently conveyed for the court to rule by saying that it
should be part of the estate. Can that be done?
I think there should be a separate proceeding, Ma’am.
Ma’am Tiu: There is a decided case on that. I forgot the citation.
But the court ruled there that that was only a mere inquiry
which the settlement court cannot use as basis for the property
to be brought back to the estate. There has to be a separate
case to be filed because it now involves a question of
ownership. The settlement court has limited jurisdiction. Insofar
as this provision is concerned, it cannot be a basis for that
property to be reconveyed to the estate.
What are the other powers?
Ma’am Tiu: Under Sec 8, this is a situation wherein the
embezzlement, or the fraudulent conveyance of the property in
this case was done in order to take it out of the hands of the
administrator, because it was just before the issuance or
granting of the letters. So there was really intent to remove it
from the administration proceeding. So, in this case, you can
recover double the value of the property.
How about accounting? Can he compel accounting of estate
that were entrusted to certain persons? Can the executor do
that?
Yes, under Sec 7. The court, on complaint of an executor or
administrator, may cite a person entrusted by an executor or
administrator with any part of the estate of the deceased to appear
before it, and may require such person to render a full account, on
oath, of the money, goods, chattels, bonds, accounts, or other
papers belonging to such estate as came to his possession in trust
for such executor or administrator, and of his proceedings thereon.
So, for instance, if the properties of the deceased were in the
hands of another person prior to assumption of administrator
to his position, then in the course of him collating these
properties, he can also require the possessors to render an
accounting as to the fruits or income of the property they held.
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Special Proceedings TSN 1st Exam
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What are the duties of the executor or administrator?
Under Rule 84, Section 1. The executor can access partnership
books and property.
Sec 2. They shall keep buildings in repair. They shall maintain a
tenantable repair the houses and other structures and fences
belonging to the estate and deliver the same in such repair to
the heirs or devisees when directed so to do by the court.
Under Sec 3. The duty to retain the whole estate to pay for
debts.
Under Rule 81, Sec 1 (a) and (c). To render inventory within 3
months and to render accounting within one year.
Uner Rule 87, Sec 9. Executor or administratot may commence
and prosecute to final judgment an action for the recovery of
such property, right, interest, debt, or credit for the benefit of
creditors;
Under that particular section, what are the conditions before the
executor/administrator can file that suit to recover properties
that were conveyed fraudulently to defraud creditors?
Still in Sec. 9 of Rule 76:
1) The deceased during his lifetime conveyed property, debt,
or credit fraudulently;
2) There must be intent to defraud his creditors or to avoid
any debt or duty; or
3) That the deceased conveyed property, right, interest, debt,
or credit that by law the conveyance would be void as
against creditors; and
4) The subject of the attempted conveyance would be liable
to attachment by any of them in his lifetime.
Ma’am Tiu: So the main condition is that there is deficiency in
the payment of all claims. Because the administrator is
supposed to pay the debts. So there are creditors hounding the
estate. And if it is discovered that there were fraudulent
conveyance of properties in order to defraud creditors, then it
is the duty of the administrator to commence suits in order to
recover those fraudulently conveyed properties for the benefit
of creditors. BUT ONLY IF THERE IS DEFICIENCY OF THE
ASSETS OF THE ESTATE. If there are sufficient assets of the
estate, you cannot justify the filing of that suit on behalf of the
creditors. That is very clear under Sec 9 of Rule 87.
Who will bear the costs for the suit in behalf of the creditors?
Last phrase of Sec 9.
But he shall not be bound to commence action unless on application
of the creditors of the deceased, nor unless the creditors making the
application pay such part of the costs and expenses, or give security
therefor to the executor or administrator, as the court deems
equitable.
Ma’am Tiu: So, in other words, there will be creditors that will
coordinate with the administrator. They will go to the executor
and ask him to file that suit. And they can only do that if there is
sufficient payment for the costs to be incurred for that suit.
Remember, if there is an administrator, all causes of action
pertaining to be estate will have to be commenced in the name
of the suit represented by the administrator. So the creditors
will have to course through all their causes of action for
recovery of properties fraudulently conveyed in order to
defraud them through the administrator. And the administrator
cannot be compelled to commence that action UNLESS the
creditors will shoulder the costs of the suit. So it is not
chargeable against the estate.
Let’s go to the inventory and appraisal of the estate. When is it
made?

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Sec 1 of Rule 83. Within 3 months after his appointment every
executor or administrator shall return to the court a true inventory
and appraisal of all the real and personal estate of the deceased
which has come into his possession or knowledge. In the
appraisement of such estate, the court may order one or more of the
inheritance tax appraisers to give his or their inheritance.
And what is the extent of their inventory?
Sec 2 of Rule 83. The wearing apparel of the surviving husband or
wife and minor children, the marriage bed and bedding, and such
provisions and other articles as will necessary be consumed in the
subsistence of the family of the deceased, under the direction of the
court, shall not be considered assets, nor administered as such, and
shall not be included in the inventory.
What would be the extent of the accountability of the executor
and administrator?
Rule 85, Sec 1. Except as otherwise expressly provided in the
following sections, an executor or administrator is chargeable in his
account with the whole of the estate of the deceased which has
come into his possession, at the value of the appraisement
contained in the inventory; with all the interest, profit, and income of
such estate; and with the proceeds of so much of the estate as is
sold by him, at the price at which it was sold.
Ma’am Tiu: THE ENTIRE ESTATE that has come into his
possession, you have to account for that. That is why, in your
inventory, you have to state what are those properties because
you are accountable for them. That is why, in your inventory,
you have to include the appraised value. That is important for
rendering your account later on. You have to report to the court
what happened. Did it increase or diminish in value? Those are
the basic things that should be included in your inventory. The
specific properties, as well as their appraised value.
So, when you render an accounting, what will you include
there?
Sec 2. Actual proceeds of the property sold. He must account for the
excess when he sells any part of the estate for more than the
appraisement, and if any is sold for less than the appraisement, he is
not responsible for the loss, if the sale has been justly made. If he
settles any claim against the estate for less than its nominal value,
he is entitled to charge in his account only the amount he actually
paid on the settlement.
Ma’am Tiu: So dito, ilalagay mo kung profitable ba yung
transaction o hindi, kung nakabenta ka ng property in excess of
its appraised value, you have to account for that excess. Pero
kung less than its appraised value, are you going to be liable?
NO, if the sale has been justly made! So you just have to make
a justification bakit mas mababa ang benta mo than the
appraised value as stated in the inventory. You have to explain
that to the court. If the court finds your explanation justifiable,
abswelto ka, di ka makakabayad ng difference. If not, yun,
pwede ka icharge ng court sa bond mo. You can be held
personally liable for that. If for instance you sold the property
you sold for less than the appraised value due to your neglect.
Hindi mo kunwari minaintain! Kaya nung pagbenta mo, talagang
mababa kasi hindi well maintained yung property. So it is due to
your own fault. Then the court can hold you personally liable for
the difference.
Now, when he pays or settles claims against the estate for less
than its nominal value, meaning, nakatawad ka. 100,000 dapat
yung claim, pero pumayag na 10,000 na lang bayaran, can you
keep the sobra? Hindi. Ang nagprofit, yung estate, hindi ikaw.
You have to declare it as it is. That’s what it means.
How about the executor uses properties for the estate, he
himself makes use of it? Is that part of his accounting?
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Special Proceedings TSN 1st Exam
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Under Sec 4. If the executor or administrator uses or occupies any
part of the real estate himself, he shall account as may be agreed
upon between him and the parties interested, or adjusted by the
court with their assent; and if the parties do not agree upon the sum
to be allowed, the same may be ascertained by the court, whose
determination in this respect shall be final.
Supposing he is required to raise money but failed to do so.
Can he be made liable for that?
Sec 5. When an executor or administrator neglects or unreasonably
delays to raise money, by collecting the debts or selling the real or
personal estate of the deceased, or neglects to pay over the money
he has in his hands, and the value of the estate is thereby lessened
or unnecessary cost or interest accrues, or the persons interested
suffer loss, the same shall be deemed waste and the damage
sustained may be charged and allowed against him in his account,
and he shall be liable on his bond.
How about costs of suit? Can he be held liable for that?
Sec 6. The amount paid by an executor or administrator for
costs awarded against him shall be allowed in his
administration account, unless it appears that the action or
proceeding in which the costs are taxed was prosecuted or
resisted without just cause, and not in good faith.
Ma’am Tiu: If the suit is frivolous. Kapay may estate, at meron
ka nang administrator, all causes of action shall be commenced
by the administrator. So it would be estate of Juan dela Cruz
represented by Pedro Garcia as administrator. Hindi basta
basta makafile ang mga heirs , may mga exceptions lang.
Dapat talaga idadaan mo yan sa administrator. Even the
creditors who are defrauded, coursed through the
administrator, as we have discussed earlier. So, kelangan mo
talaga ang administrator as your frontliner. NOMINAL PARTY
nay an siya. Now, if the administrator, pataka lang ug file ng
kaso, kasi POWERFUL siya, and naging frivolous na, and in bad
faith pa, sino ngayon magshoshoulder ng gastos? It would
have to be him personally.
So there are certain limits to what an administrator can do
because he has certain duties and obligations to fulfill. That is
why it is not easy to appoint an administrator. The court must
have to pick the right person to appoint because he has so
much power given with respect to the properties of the
deceased. The main purpose of an administration proceeding is
to preserve the estate of the deceased, so that the heirs can be
protected in their interests over the residue of that estate.
Because the heirs can only inherit after the payment of debts.
Kaya hindi madali maging isang administrator. You have so
much to answer for if you screw up.
March 4, 2014 – “Good Mood”
What are the allowable expenses?
The allowable expenses are the amounts made for costs awarded
against in the administrator as found in rule 85 sec 6,
All costs?
Not necessarily, pleasenallow me to read section 6 rule 85
Section 6. When allowed money paid as cost. — The amount paid
by an executor or administrator for costs awarded against him shall
be allowed in his administration account, unless it appears that the
action or proceeding in which the costs are taxed was prosecuted or
resisted without just cause, and not in good faith.
And also under Sec 7, it provides,
Section 7. What expenses and fees allowed executor or
administrator. Not to charge for services as attorney. Compensation
provided by will controls unless renounced. — An executor or

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
administrator shall be allowed the necessary expenses the care,
management, and settlement of the estate, and for his services, four
pesos per day for the time actually and necessarily employed, or a
commission upon the value of so much of the estate as comes into
his possession and is finally disposed of by him in the payment of
debts, expenses, legacies, or distributive shares, or by delivery to
heirs or devisees, of two per centum of the first five thousand pesos
of such value, one per centum of so much of such value as exceeds
five thousand pesos and does not exceed thirty thousand pesos,
one-half per centum of so much of such value as exceed one
hundred thousand pesos. But in any special case, where the estate
is large, and the settlement has been attended with great difficulty,
and has required a high degree of capacity on the part of the
executor or administrator, a greater sum may be allowed. If objection
to the fees allowed be taken, the allowance may be re-examined on
appeal.
If there are two or more executors or
administrators, the compensation shall be
apportioned among them by the court according
to the services actually rendered by them
respectively.
So under this section 7 ma’am the necessary expenses and the
expenses as compensation of administrator or executor for his
services.
Also under rule 83 section 3, we have the allowance for the spouse
and for the children of the decedent. It provides:
Section 3. Allowance to widow and family. — The widow and minor
or incapacitated children of a deceased person, during the
settlement of the estate, shall receive therefrom, under the direction
of the court, such allowance as are provided by law.
When it comes to the allowance of the children, does it cover
children who are no longer in school or who are no longer
minors?
Under section 3 of the rules of court it only refers to minors or
incapacitated children or a deceased person. However, under the
civil code, support is not limited only to those children who are
minors, meaning to say, children who have already reached their age
of puberty are still entitled for support. And that is the ruling in the
case of santero v CFI of Cavite.
How about grandchildren, are they covered under this provision
on allowance?
Grandchildren are not allowed on this provision on allowance. In the
case of Ruiz v CA, they are not covered.
Let’s go to the fees of the administrator, how much is the daily
rate of the administrator?
As provided on sec 7, 4 pesos per day, on the time actually and
necessarily employed, but he can ask (interrupted)…
How much is the minimum wage today?
The minimum wage today is 300 here in Davao
So under the rules it’s only 4 pesos, so do you want to be an
administrator? Kulang pa yan sa pamasahe mo sa jeep.
Kru kru kru
So is that the only mode of compensation? Daily rate?
He is also entitled for a commission upon the value of so much of
the state as comes into him.
What is the percentage of the commission?
The percentage of the commission is two per centum of the first five
thousand pesos of such value, one per centum of so much of such
value as exceeds five thousand pesos and does not exceed thirty
thousand pesos, one-half per centum of so much of such value as
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Special Proceedings TSN 1st Exam
30
exceed one hundred thousand pesos. And one quarter of percentem
as exceeds 100 thousand peso.
Ma’am: Ok so it’s about .25% if it’s more than 100 thousand,
less than that then you will have .15% and 2%
Now, a real estate broker how much does it earn by way of
fees?
6% of the value.
So gusto mo pa ring maging executor or administrator?
..(Pacute)..
Ma’am: Ok now these are the rates under the rules of court.
Obviously, these are antequated rates, this is way back in 1964,
again there is a need to revise the rules of special proceedings
unfortunately, the SC doesn’t seem to have thought of revising
it. If only to address the absurd rates here.
Is there an exception to these rates?
Yes mam. In special case, where the estate is large, and the
settlement has been attended with great difficulty, and has required a
high degree of capacity on the part of the executor or administrator,
a greater sum may be allowed
Who will determine a greater sum?
I think it is the court who will determine the sum.
Aside from that is there any other exception?
If there are objections to the fees allowed be taken, the allowance
may be re-examined on appeal. So maybe, the court will provide for
a higher compensation.
Ma’am: (another exception) When the will provides an amount
for the compensation of the executor or the administrator.
If there are co-administrators, whats the rule on the fees?
Sec 7. If there are two or more executors or
administrators, the compensation shall be
apportioned among them by the court according
to the services actually rendered by them
respectively.
Ma’am: Ok so 4 pesos a day will be divided by two.
So those are the fees allowed, how about the fees not allowed?
Sec 7. When the executors or administrator is an
attorney, he shall not charge against the estate
any professional fees for legal services rendered
by him.
So if youre a lawyer, would you want to be an administrator?
You will not be paid for your legal services.
Yes ma’am, because still, you can be paid your compensation as an
executor or administrator (interrupted: at 4 pesos a day?)
So you cited if an administrator or a lawyer, what else, what are
the fees not allowed?
As mentioned in the case, those that are for the support of
grandchildren, they are not allowed.
Can the executor charge for services that he is obliged to
perform?
No ma’am. That is already included in his compensation.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
So if the administrator who happens to be a lawyer cannot
charge the estate for the services rendered by him, who should
be charged?
He should charge the heirs, who he is representing as in the case of
Quasha.
In that case the lawyers who are asking for compensation as the
administrator or executor of the estate were not given such
compensation, but rather, the SC said that they are administrator or
executor but they represented the heirs in their claim, so they are
entitled to an attorney’ s fees and they are not subject to the
exception under section 7 of rule 85
Ok in the case of Quasha, there was a flip flopping in the
position of Quasha law office. First they said that they were
administrators, and they made around and say they were not
administrators, so which is which? Were they administrators or
merely lawyers?
They were merely considered as lawyers.
And who should pay for their services?
The heirs that they represented are the ones liable to pay for the
services
In the case of Lacson, who was made liable for the fees of the
lawyers?
Still ma’am the heirs are liable for the fees of the lawyers.
Ma’am: Ok so that is the general rule, that if the administrator
happens to be a lawyer, he cannot charge against the estate his
fees for services rendered rather he should charge it to the
clients. But if he is not an administrator like in the case of
quasha, purely legal services rendered probably to assist the
adminsitrators, that can be considered as valid fees to be
charged in the estate. Unless it can be shown that the heirs has
specifically hired the lawyers.
After the executor or administrator had rendered an accounting,
what is the right of the parties with respect to such accounting?
After that the parties can examine on oath with respect to the
account rendered of the executor or administrator.
When would be the examination?
Section 9 of rule 85 provides:
Section 9. Examinations on oath with respect to account — The
court may examine the executor or administrator upon oath with
respect to every matter relating to any account rendered by him, and
shall so examine him as to the correctness of his account before the
same is allowed, except when no objection is made to the allowance
of the account and it’s correctness is satisfactorily established by
competent proof. The heirs, legatees, distributees, and creditors of
the estate shall have the same privilege as the executor or
administrator of being examined on oath on any matter relating to an
administration account.
Who is allowed to examine the executor or administrator on his
account?
First the court may examine, and also the legatees, heirs, and even
the creditors are also allowed to examine
When may the examination be held? When is it done?
It is before the account of the executor or administrator is allowed.
How?
The administrator or executor first will have an oath as regard the
correctness of the account, and I think the executor and
administrator will present his accounting to the court and to those
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Special Proceedings TSN 1st Exam
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other people who are allowed by law to examine and if those
persons have questions regarding the accounting, then the executor
or administrator should satisfactorily answer that ma’am.
Ok, when is the administrator required to render and
accounting? When is he required?
I think ma’am it’s before the distribution of the estate.
Are you sure? What if the distribution happens 10 years after
his appointment, he will render an accounting on the 10 th year?
Section 8. When executor or administrator to render account. —
Every executor or administrator shall render an account of his
administration within one (1) year from the time of receiving letters
testamentary or of administration, unless the court otherwise directs
because of extensions of time for presenting claims against, or
paying the debts of, the estate, or for disposing of the estate; and he
shall render such further accounts as the court may require until the
estate is wholly settled.
Ma’am: So one year after the letters of administration is
received he has to file that accounting with the court and ask
for it’s approval and during that hearing on the approval, that’s
the time that he can be examined for the correctness of his
accounting
When he files a motion for approval of his accounting, he has to
furnish all the parties copies thereof, so that they may be
guided and during that hearing set by the court, they can or
have the opportunity to question or examine the executor or the
administrator for the correctness of his accounting.
When is the administration revoked?
Ma’am under rule 82
Section 1. Administration revoked if will discovered. Proceedings
thereupon. — If after letters of administration have been granted on
the estate of a decedent as if he had died intestate, his will is proved
and allowed by the court, the letters of administration shall be
revoked and all powers thereunder cease, and the administrator
shall forthwith surrender the letters to the court, and render his
account with such time as the court directs. Proceeding for the
issuance of letters testamentary or of administration under the will
shall be as hereinbefore provided.
Ok so upon the revocation of the letters administration, again
the administrator is due to….
So the instance for the revocation would be the discovery of a will
and the allowance thereof.
So what happens if there is discovery but no allowance yet of
the will? Will the letters of administration be considered
revoked? Will that be a ground to revoke?
If there is only discovery without allowance, the administrator cannot
be revoked.
So it has to be discovery of the will and probate of the will that will
revoke the administration
What are the grounds for the removal of the executor or
administrator?
Section 2 of rule 82
Section 2. Court may be remove or accept resignation of executor
or administrator. Proceeding upon death, resignation, or removal. —
If an executor or administrator neglects to render his account and
settle the estate according to law, or to perform an order or judgment
of the court, or a duty expressly provided by these rules, or
absconds, or becomes insane, or otherwise incapable or insuitable
to discharge the trust, the court may remove him, or in it’s discretion,
may permit him to resign. When an executor or administrator dies,
resign, or is removed the remaining executor or administrator may

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
administer the the trust alone, unless the court grants letters to
someone to act with him. If there is no remaining executor or
administrator, administration may be to any suitable person.
So what are the grounds for the removal?
neglects to render his account and settle the estate according to law,
or to perform an order or judgment of the court, or a duty expressly
provided by these rules,
or absconds,
or becomes insane,
or otherwise incapable or insuitable to discharge the trust,
What are the grounds for the replacement of an administrator or
executor?
(audio not clear sorry)
Supposing there are co-administrators and one of them is
removed, what happens? With the co administration?
The remaining co-executor or administrator may administer the
property unless the court grants that there will someone to act
Ma’am: So there are two options, he acts alone or someone else
is appointed in replacement of the other
And what would be now the powers of the new executor?
Same powers as the previous administrator.
X--------------------------------------------------------X
!!!BOSSING!!!
Lets go to claims against the estate
What do you understand about claims against the estate?
The claims against the estate are claims of a creditor wherein the
deceased has debts.
Ma’am: Rule 86 deals with the claims of creditors. This is the
meat of the settlement proceedings because if there are no
debts left, you go for extra judicial statement. If there is only
disagreement as to how to settle, how to partition the property,
you may file an action for partition. But if there are debts, then
there is no way you can go to extra judicial settlement you have
to go to settlement proceedings. So this is the meat of the
administration proceedings because this will now deal with the
creditors of the estate.
So how will the creditors be allowed to file their claims against
the estate?
RULE 86
Section 1. Notice to creditors to be issued by court. — Immediately
after granting letters testamentary or of administration, the court
shall issue a notice requiring all persons having money claims
against the decedent to file them in the office of the clerk of said
court.
Ok. This notice to the creditors, how will this be served? Or how will
this be given to the creditors? How will the publication be made
Section 3. Publication of notice to creditors. — Every executor or
administrator shall, immediately after the notice to creditors is
issued, cause the same to be published three (3) weeks
successively in a newspaper of general circulation in the province,
and to be posted for the same period in four public places in the
province and in two public places in the municipality where the
decedent last resided.
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Special Proceedings TSN 1st Exam
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Ok so there is no notice by hand? You cannot serve personal
notice by hand? You have to serve by publication? Is that
correct?
Ma’am as I understand it, under section 3, it’s under publication
Ma’am.
The law does not provide for a personal service. So it is through
publication.
What will the notice contain?
Section 2. Time within which claims shall be filed. — In the notice
provided in the preceding section, the court shall estate the time for
the filing of claims against the estate, which shall not be more than
twelve (12) not less than six (6) months after the date of the first
publication of the notice. However, at any time before an order of
distribution is entered, on application of a creditor who has failed to
file his claim within the previously limited, the court may, for cause
shown and on such terms as are equitable, allow such claim to be
filed within a time not exceeding one (1) month.
It will contain the time within which such claim shall be filed.
Ma’am: So the court will give notice as to the deadline for the
filing of the claim.
Question is what is the deadline? How can the court determine
the deadline?
It shall not be more than twelve (12) not less than six (6) months
after the date of the first publication of the notice. However, at any
time before an order of distribution is entered, on application of a
creditor who has failed to file his claim within the previously limited,
the court may, for cause shown and on such terms as are equitable,
allow such claim to be filed within a time not exceeding one (1)
month.
How will the court know when the first publication would be?
Section 4. Filing of copy of printed notice. — Within ten (10) days
after the notice has been published and posted in accordance with
the preceding section, the executor or administrator shall file or
cause to be filed in the court a printed copy of the notice
accompanied with an affidavit setting forth the dates of the first and
last publication thereof and the name of the newspaper in which the
same is printed.
Ma’am: The question here is, the court will issue a notice of
hearing, it’s an order, then that order would have to be
published, right? For 3 consecutive weeks. And that order
would contain the deadline for the filing of claims. How will the
court know when the first publication would be such that, the
notice will specify the date for the filing of claims, if as you said,
it will only be determined after the executor has filed the proof
of publication.
The court will just provide for the time when it would be
published.
Ok. The court will have to estimate when the first publication
can be made and fix a time frame for the deadline of the filing of
the claim for as long as it is not below 6 mos nor more than 12
mos from the first publication. So if the court issues an order
today, and expects the executor to publish it next month, then it
can make an estimate as to when the deadline for the filing
would be.
Supposing the first publication will start on March 15, can the
court set the deadline for the filing of claims on sept. 15?
Yes ma’am. That would be exactly 6 months from March, and
section 2 provides that not more than 12 or less than 6 months after
the date of the first publication of the notice ma’am.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
So if the court sets the deadline for the filing of claims, let’s say
March 15, and sets it on December 15, of the same year, is that
allowed?
Yes ma’am.
What happens if the claims are filed beyond the deadline set by
the court as published in the newspapers?
Section 5. Claims which must be filed under the notice. If not
filed, barred; exceptions. — All claims for money against the decent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expense
for the last sickness of the decedent, and judgment for money
against the decent, must be filed within the time limited in the notice;
otherwise they are barred forever, except that they may be set forth
as counterclaims in any action that the executor or administrator
may bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commenced
by the deceased in his lifetime, the debtor may set forth by answer
the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims
may be set off against each other in such action; and if final
judgment is rendered in favor of the defendant, the amount so
determined shall be considered the true balance against the estate,
as though the claim had been presented directly before the court in
the administration proceedings. Claims not yet due, or contingent,
may be approved at their present value
Ma’am: Ok so if the claims are not filed beyond that period, set
by the court, those are generally considered barred unless the
exceptions apply. So the period for the payment of the claim is
what you call the statute of non-claims and that is explained
extensively in the case of Santos v CA. the rationale is in that
case and I hope you took the time to read that case. The statute
of non-claims is similar to a statute of limitations as stated in
the case of Santos v CA. that is why if you do not follow the
deadline, then you are barred from the setting of claim. It’s as if
it has prescribed because this is similar to the statute of
limitations although very limited. Now for statute of non-claims,
it is very limited to claims of the estate, these are the claims
that do not survive. Because for the claims that survive, or
actions that survive, these can be filed beyond the statute of
claims. And you don’t even have to file it in the same set of
proceedings. You file a separate action for that. This statute of
non-claims will only cover things or actions that do not survive.
And what are those? Money claims arising from contracts,
express or implied, due or not due, or contingent, claims for
funeral expenses, expenses for the last sickness of the
deceased, money judgment.
Now how about debts recognized in the will, are they recovered
under the statute of claims?
Those are covered. So even if recognized in the will, the creditor still
has to present the claim within the statute of non-claims. Otherwise it
will be barred forever. And the reasons for that were also stated in
the case of Santos v CA. because there is a need to verify the
legitimacy of the credit as well as the extent of the credit because it
could be that even though that it is recognized and stated in the will
with the intervening period between the making of the will and the
debt of the decedent, there could be a partial payment made in the
will, or there was full settlement of the debt. So it’s still has to be
presented.in court for validation. And that is the reason why even if
they are recognized in the will, they should still be presented,
otherwise, they will be considered barred.
Ok so what are the exceptions to the rule that the failure to
present or file a claim within the period set in the notice of will
will be barred forever? What are the exceptions?
Section 5. Claims which must be filed under the notice. If not
filed, barred; exceptions. — All claims for money against the decent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expense
for the last sickness of the decedent, and judgment for money
against the decent, must be filed within the time limited in the notice;
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Special Proceedings TSN 1st Exam
33
otherwise they are barred forever, except that they may be set forth
as counterclaims in any action that the executor or administrator
may bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commenced
by the deceased in his lifetime, the debtor may set forth by answer
the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims
may be set off against each other in such action; and if final
judgment is rendered in favor of the defendant, the amount so
determined shall be considered the true balance against the estate,
as though the claim had been presented directly before the court in
the administration proceedings. Claims not yet due, or contingent,
may be approved at their present value
Section 7. Mortgage debt due from estate. — A creditor holding a
claim against the deceased secured by mortgage or other colateral
security, may abandon the security and prosecute his claim in the
manner provided in this rule, and share in the general distribution of
the assets of the estate; or he may foreclose his mortgage or realize
upon his security, by action in court, making the executor or
administrator a party defendant, and if there is a judgment for a
deficiency, after the sale of the mortgaged premises, or the property
pledged, in the foreclosure or other proceeding to realize upon the
security, he may claim his deficiency judgment in the manner
provided in the preceding section or he may rely upon his mortgage
or other security alone, and foreclosure the same at any time within
the period of the statute of limitations, and in that event he shall not
be admitted as a creditor, and shall receive no share in the
distribution of the other assets of estate; but nothing herein
contained shall prohibit the executor or administrator from
redeeming the property mortgaged or pledged, by paying the debt
for which it is held as security, under the direction of the court, if the
court shall adjudge it to be for the best interest of the estate that
such redemption shall be made.
The exceptions would be, if they are counterclaims, or where the
executor or administrator commences an action or prosecutes an
action already commenced by the deceased in his lifetime, and
mortgage debt due from estate.
Contingent claims must be presented even if they are not yet due.
They should be filed within the statute of nonclaims otherwise they
would be barred.
Ma’am: So if there is a subsequent action filed by the
administrator or executor against the claimant, the barred claim
can be setup as a money claim. Or if there was already an
action brought by the decedent, the same can be set forth? As a
counterclaim. If the claim is secured by the mortgage, that
claim is not barred because the mortgagor can rely on the
mortgage to settle the claims. What else? Solidary obligation
(sec 5), the claim can still be enforced against the solidary
obligor or there is a joint obligor, that can be partially enforced
against the joint obligor. Meaning to say, the claim may not be
gone forever, because you can still enforce it against them. It
may not be against the estate but it may be against the solidary
obligor.
Lets go to a claimant who claims at the same time a mortgagor.
What are the remedies of a mortgagor?
He may abandon the security and prosecute his claim in the manner
provided in this rule, and share in the general distribution of the
assets of the estate;
or he may foreclose his mortgage or realize upon his security, by
action in court, making the executor or administrator a party
defendant, and if there is a judgment for a deficiency, after the sale
of the mortgaged premises, or the property pledged, in the
foreclosure or other proceeding to realize upon the security, he may
claim his deficiency judgment in the manner provided in the
preceding section
or he may rely upon his mortgage or other security alone, and
foreclosure the same at any time within the period of the statute of
limitations, and in that event he shall not be admitted as a creditor,

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
and shall receive no share in the distribution of the other assets of
estate;
If he waives or abandon his security, when should he file his
claim against the estate?
It should file it within the statute of non-claims otherwise it will be
barred forever.
What is the difference if he opts for judicial foreclosure as
oppose to extra judicial foreclosure?
If he rely upon his mortgage or foreclose the same at any time within
the period of the statute of limitations, he shall not be admitted as a
creditor and shall receive no share in the distribution of the other
assets of the estate (extra judicial foreclosure)
For judicial foreclosure, he is admitted as a creditor.
As a creditor? If you are a mortgagor, which of these three will
you avail? What is the best option for you here?
I’ll choose the 1 st one and prosecute my claim in the manner
provided in this rule, and share in the general distribution of the
assets of the estate;
Because the last one (3 rd) will cause me not to be admitted as a
creditor.
Are you sure?
So you are going to abandon your security, therefore if there are
more debts than assets, then you get less than what you should get.
Whereas if you have that security, that property is all yours, to satisfy
your claim. You have a priority over that property mortgaged to you.
You have a prior claim. You look at the preference of credit’s. You
enjoy preference if you are a mortgagor over the particular property
mortgaged. So you will abandon your security?
A, no ma’am I will not be abandoning my security. I’ll be changing my
answer.
Ma’am: It depends. If the property is worthless, might as well
abandon it. But even it is worthless, I will still go for judicial
foreclosure. Because in judicial foreclosure, you get the
property and file a deficiency claim against the estate for any
deficiency. That is the surest way to settle your claim. But if the
security is viable, I’ll not go to judicial foreclosure, I will never
abandon it. I’ll go to extra judicial foreclosure. So you have to
consider certain factual circumstances involving you mortgage.
So those are the 3 options and for each options there are
consequences. And these are all written under section 7 of rule
86.
Ok, lets go to contingent claims, when do you present the
contingent claims to the court?
Rule 88 Section 5. How contingent claim becoming absolute in two
years allowed and paid. Action against distributees later. — If such
contingent claim becomes absolute and is presented to the court, or
to the executor or administrator, within two (2) years from the time
limited for other creditors to present their claims, it may be allowed
by the court if not disputed by the executor or administrator and, if
disputed, it may be proved and allowed or disallowed by the court as
the facts may warrant. If the contingent claim is allowed, the creditor
shall receive payment to the same extent as the other creditors if the
estate retained by the executor or administrator is sufficient. But if
the claim is not so presented, after having become absolute, within
said two (2) years, and allowed, the assets retained in the hands of
the executor or administrator, not exhausted in the payment of
claims, shall be disturbed by the order of the court to the persons
entitled to the same; but the assets so distributed may still be
applied to the payment of the claim when established, and the
creditor may maintain an action against the distributees to recover
the debt, and such distributees and their estates shall be liable for
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Special Proceedings TSN 1st Exam
34
the debt in proportion to the estate they have respectively received
from the property of the deceased.
As to the period provided in rule 86, which is more than 12 months
nor less than 6 months. Contingent claims is one of the items that
should be filed pursuant to the statute of non-claims.
So when do you file or present the contingent claim?
After the notice issued by the court, they will estimate the time when
it would be filed, so after they have already estimated the time, you
file it in rule 86 section 2. And since it is contingent, there is still a
period for the contingency, and if it is determined by the court that
the claim is already allowed, then if such contingent claim become
absolute within 2 years, then the court will allow your claim ma’am.
So the contingent claim, when should you file it, when it is due?
Or not yet due?
Not yet due ma’am. But the claim must be filed within the time
permitted to file under rule 86 ma’am.
So how many time can you file your claim?
Once.
Only once?
So within the statute of non-claims, do you file it or not?
You file it.
So even if it’s not yet due, you file it. Once it becomes due,
when do you file it? Or do you still need to file it?
If it’s not due, you file it within the statute of non-claims, but if it
becomes due, you need to file it? When?
Within 2 year period.
Ma’am: It’s found in section 5. When it becomes absolute. When
you say absolute, it become due. So, present it within 2 years.
From the time the creditors are supposed to present their
claims. So 2 years after the statute of non-claims then you file
it.
Is a contingent claimant required to include a certification
against forum shopping?
In the case Sheker v Estate… the SC held here that with respect to
a contingent claim, since it is not an initiatory pleading, then a
certificate of non forum shopping is not required.
How about the payment of filing fees? Are you required to pay
the filing fees?
Yes. There is still a need to file a filing fee.
Does a contingent claimant have the right to file (recording not
clear)?
No ma’am.
Does he have the right to participate in the administration?
No ma’am. In one case ma’am, a contingent claimant may not file
because one is entitled to file if one has an interest. Such interest
must be an actual one that he can benefit or who can be injured in
said proceedings
So the interest must be actual, not merely contingent. However,
can that contingent claimant seek access to the record
proceedings?
In the case of … the SC allowed the petitioner to have access
ma’am because for creditors, it is their right to seeto it that the

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
property which may be used to pay their debts were not disposed
fraudulently or in any case would be… by the heirs ma’am because
still they have an interest over the said estate.
Ma’am: Ok. So they are entitled to be updated of the settlement
disputes because in the event that their claim ripens into an
absolute right, then they have a right to share in the estate of
the deceased.
Lets go to the processing of claims
How do you file claims?
Claims are filed in court as explained in the case of sheker, that they
just file a motion in the main case of the settlement of the estate of
the deceased, when you have a claim on the estate of the deceased
you just file a motion for the enforcement of the claims.
So what do you include in the motion? Do you need to present
proof of indebtedness with the original documents? Do you
need to show your actionable documents?
I believe so, you have to present actionable documents if you file
your claims against the estate like all other ordinary actions in the
enforcement of a right ma’am.
What are those that must be attached to your claims to be filed
in the court?
Section 9. How to file a claim. Contents thereof. Notice to executor
or administrator. — A claim may be filed by delivering the same with
the necessary vouchers to the clerk of court and by serving a copy
thereof on the executor or administrator. If the claim be founded on a
bond, bill, note, or any other instrument, the original need not be
filed, but a copy thereof with all indorsements shall be attached to
the claim and filed therewith. On demand, however, of the executor
or administrator, or by order of the court or judge, the original shall
be exhibited, unless it be list or destroyed, in which case the
claimant must accompany his claim with affidavit or affidavit’s
containing a copy or particular description of the instrument and
stating it’s loss or destruction. When the claim is due, it must be
supported by affidavit stating the amount justly due, that no
payments have been made thereon which are not credited, and that
there are no offsets to the same, to the knowledge of the affiant. If
the claim is not due, or is contingent, when filed, it must also be
supported by affidavit’s stating the particulars thereof. When the
affidavit is made by a person other than the claimant, he must set
forth therein the reason why it is not made by the claimant. The claim
once filed shall be attached to the record of the case in which the
letters testamentary or of administration were issued, although the
court, in it’s discretion, and as a matter of convenience, may order all
the claims to be collected in a separate folder.
So what do you need to attach?
Sec 9.
Upon the filing of the claim, do you need to pay docket fees?
In the case of Sheker, since it is not an initiatory pleading and it’s just
incidental to the main case which is the settlement of the estate,
then you don’t need.
There is no need to pay docket fees?
In the case of sheker, you must file the corresponding docket fees
because if you fail to file the fees, then it could be a ground for
dismissal of the claim.
After the filing of the claim, what will happen next?
Once you already file the claim, you get the other attachments. You
will have to serve a copy of your claim with the executor or the
administrator, after, the executor or administrator will be given the
opportunity as to his position with regard to the estate regarding his
claim. Whether he admits of the liability or not.
So how will he do that?
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Special Proceedings TSN 1st Exam
35
He will be presenting pleadings,
What pleading?
The executor will file an answer, in 15 days, as provided in section
10,
Section 10. Answer of executor or administrator. Offsets —Within
fifteen (15) days after service of a copy of the claim on the executor
or administrator, he shall file his answer admitting or denying the
claim specifically, and setting forth the admission or denial. If he has
no knowledge sufficient to enable him to admit or deny specifically,
he shall state such want of knowledge. The executor or administrator
in his answer shall allege in offset any claim which the decedent
before death had against the claimant, and his failure to do so shall
bar the claim forever. A copy of the answer shall be served by the
executor or administrator on the claimant. The court in it’s discretion
may extend the time for filing such answer.
So each claim filed against the estate will have to be answered by
the executor or administrator and that answer there will be denial or
admission of the claim. If there is denial then he has set forth the
reason for the denial. If there are counterclaims by the decedent, it
has to be stated in the answer otherwise, it will be forever barred.
After the answer is filed, what happens next?
Those claims that are admitted by the executor will be submitted to
the clerk of court who shall approve the same without a hearing.
However if in the discretion of the court before approving the claim, it
may order that all heirs, legatee, and devisees be notified, and upon
hearing, the court may in it’s discretion allow him within 15 days if
the legatees, devisees and the heirs oppose then the court allows
them to file answer to the claim within 15 days in the manner
prescribed in sec 10.
So if the claim is denied what will the court do? Lets go to
admitted claims, if the claim is admitted by the executor, what
happens?
Such claim shall be submitted with the clerk of court and then the
clerk may approve the same without hearing but if the court in it’s
discretion thinks that before approving the claim, it is necessary for
the known heirs, legatees, and devisees to be notified and heard,
then there would be a hearing. In here, the legatees, heirs and
devisees will oppose that claim, the court may allow them 15 days to
file answer to the claim in the manner prescribed.
How about contested claims or claims that are denied?
If there are contested claims, upon the filing of the answer of the
claimant, if the executor denies that claim, the clerk of court will set a
trial and will notify both parties of the trial or the court may also refer
the claim to a commissioner.
After trial of contested claims, what happens next?
The court will judge whether or not that claim will be given due
course and will form part of that same case.
Are you saying that all this trial on contested claim is not part
of the settlement proceedings?
After the hearing ma’am the court will pronounce judgment as to
whether or not the person has a valid claim on the estate.
The court will have to render a decision approving or disapproving
the claim. If it approves the claim then that claim will be part of the
payment or settlement of the properties of the estate. If it is
disapproved, it cannot be given any share in the estate.
Supposing one party disagrees with the decision of the court,
what happens?
If a party disagrees, he can appeal the judgment as provided in in
Sec 13.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
Section 13. Judgment appealable. — The judgment of the court
approving or disapproving a claim, shall be filed with the record of
the administration proceedings with notice to both parties, and is
appealable as in ordinary cases. A judgment against the executor or
administrator shall be that he pay, in due course of administration,
the amount ascertained to be due, and it shall not create any lien
upon the property of the estate, or give to the judgment creditor any
priority of payment.
Ma’am: So there can be an appeal here. You have a settlement
proceeding, and then in the portion of that, there are trials for
each claim. That is what you call mini trials. Thus for each claim
there is a separate claimant, then the administrator will have to
either admit or deny the claim and so is the controversy that is
to be resolved by the court. So matagal yan. Hanggang sa lahat
matapos. That’s just one portion of the settlement proceeding,
but as I’ve said, that is the most important portion because if
there are no creditors, why will you go to that tedious process
of administration proceedings. You go straight for extrajudicial
settlement. That simply because there are debts of creditors
then there has to be a settlement proceeding to satisfy the
claim. This is the main act in a concert. Because only after the
creditors have been satisfied, can you determine whether there
is a residue on the estate that can be distributed among the
heirs. If it turns out na wala, then hanggang dun ka na lang,
deficit pa ang estate mo. Pero kung may sobra then proceed to
the next level ka. Yun yung partion, distribution of the net
assets.
Who will shoulder the costs?
It depends ma’am.
Section 14. Costs. — When the executor or administrator, in his
answer, admit’s and offers to pay part of a claim, and the claimant
refuses to accept the amount offered in satisfaction of his claim, if he
fails to obtain a more favorable judgment, he cannot recover costs,
but must pay to the executor or administrator costs from the time of
the offer. Where an action commenced against the deceased for
money has been discontinued and the claim embraced therein
presented as in this rule provided, the prevailing party shall be
allowed the costs of his action up to the time of it’s discontinuance.
Ma’am: Ok so insofar as costs are concerned, there are specific
rules and that’s governed by section 14. If there is already an
admission of claim, made by the administrator, the claimant
refused to accept the partial payment given and it turns out he
doesn’t get a favorable judgment, he will pay for the costs.
Now action for money against the deceased, is continued and the
claim was filed against the estate, the prevailing party, cannot …
(may umubo hehehe) be allowed (may umubo, di ko narinig hehehe)
… the costs after the case is discontinued.
What are the actions that survive?
Section 1. Actions which may and which may not be brought
against executor or administrator. — No action upon a claim for the
recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but to recover real or personal
property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him.
So the actions that survive are and be commenced against the
executor or administrator are
Actions to recover real or personal property,
or an interest therein, from the estate,
or to enforce a lien thereon,
and actions to recover damages for an injury to person or property,
real or personal
Ma’am: So if it’s an action to recover a specific property, then
you don’t have to enforce it in the settlement proceedings and
you can file it separately. The reason is it can stand
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Special Proceedings TSN 1st Exam
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independently on the settlement proceedings. Unlike the
actions that do not survive, you have to file it in the same
settlement proceedings. Actions that survive, that is not found
in the debt of the defendant, it can be pursued separately and
independently of settlement proceedings then that is an action
that survive. And usually it involves properties, real or personal
or interest thereon, or you enforce a lien like a mortgage, you
file a judicial foreclosure, that is an action that survive or if it is
with respect to torts or culpa aquilana, damages based on tort
or injury to person or property, real or personal, so these are
actions that survive. Meaning to say you don’t have to file it in
the same settlement proceedings, you can go ahead and file it
in a separate case and that case will prosper notwithstanding
the death of the defendant.
For actions that survive, who may bring an action or against
whom the action be brought?
Actions that do not survive cannot be commenced against the
executor or administrator.
Can they be charged?
Ma’am: you have to remember that there are 2 kinds of actions
that survive. One is against the decedent and the estate,
second is initiated by the estate of the decedent. So it’s a 2 way
process. Just as an action for recovery of property survives
against the decedent, so as the recovery of the property by the
estate against the third person. Just because the plaintiff has
already died doesn’t mean that his action is gone for the better.
It survives. Because the estate can take over. And that estate
will now file a case against the person represented by the
administrator or executor. So it’s a 2 way process. Pwede sya
defendant, pwede sya plaintiff. For as long as the nature of the
action is one that survives. So for instance, the decedent
figured a vehicular accident, tort, eh bigla sya namatay, don’t
tell me quit’s nay un. The estate may file a case against the
person, that is one action that survives, precisely, that is the
cause of the death of the decedent. So the estate can be the
plaintiff or the defendant. In actions that survive. If it is the
plaintiff, who files the case? It would be the administrator or
executor.
Can the heirs file the case? Notwithstanding the existence of
the administrator or executor
Yes ma’am. The heirs can. Held in the case of luiferio v ca.
When will that be allowed?
The case provides that even if there is an appointed administrator,
jurisprudence recognizes 2 exceptions: if the executor or
administrator is unwilling or refuses to bring suit and the
administrator participated in the act complained of and he is made a
party defendant. Evidently, the necessity may seek judicial relief in
the estate as compelling as there is no appointed administrator if not
more as there is appointed administrator but he is either inclined to
bring suit or is one of the guilty parties in the said case. The rule
therefore that heirs has no legal standing to pursue recovery of the
estate during the pendency of the administration proceedings as 3
exceptions?. The 3rd would be when there is no appointed
administrator such as in this case
Ma’am: So if it is for the recovery of property for instance, if
there is yet no administrator appointed, the heirs can file. Once
an administrator has been appointed, you cannot be disregard
the administrator, the heirs have no right as a general rule to
institute actions where an administrator has been appointed, it
has to go through the administrator.
Supposing the administrator does not want to file, refuses to
file or is part of the act complained of, then this are the
exceptions to the general rule that the heirs cannot file. The
heirs may now file as they now fall under the exception, and the
basis is the case of luiferio v ca. so take note, if there is an
administrator, any action to be filed by the estate or recovery of
property for the estate would have to be coursed through the
administrator. The only exception is when the administrator
refuses to file or is a part of the act compaliend of in which case
the heirs can file.

Based on the Syllabus of Atty. Geraldine Quimosing-Tiu
What are the actions that survive, aside from the recovery of
property , that can be filed by the administrator?
Section 5. Mortgage due estate may be foreclosed. — A mortgage
belonging to the estate of a deceased person, as mortgagee or
assignee of the right or a mortgage, may be foreclosed by the
executor or administrator.
Ma’am: Ok so an action for foreclosure is one that survives, so
fi the mortgagor is the decedent, then the administrator can file
action for judicial foreclosure. Do not confuse this with a
claimant who is also a mortgagor,iba yun, eto baliktad, eto yung
decedent yung mortgagor in which case the right to foreclose
can be exercised by the administrator on behalf of the estate.
What else?
Section 7. Person entrusted with estate compelled to render
account. — The court, on complaint of an executor or administrator,
may cite a person entrusted by an executor or administrator with any
part of the estate of the deceased to appear before it, and may
require such person to render a full account, on oath, of the money,
goods, chattels, bonds, account, or other papers belonging to such
estate as came to his possession in trust for such executor or
administrator, and of his proceedings thereon; and if the person so
cited refuses to appear to render such account, the court may punish
him for contempt as having disobeyed a lawful order of the court.
Section 8. Embezzlement before letters issued — If a person,
before the granting of letters testamentary or of administration on the
estate of the deceased, embezzles or alienates any of the money,
goods, chattels, or effects of such deceased, such person shall be
liable to an action in favor of the executor or administrator of the
estate for double the value of the property sold, embezzled, or
alienated, to be recovered for the benefit of such estate.
Ok so thats an instance where an administrator can file an
action to recover money, goods, chattels, or effects. And the
recovery will be double.
Now how about actions to be filed on behalf of the creditors,
what are those?
Section 9. Property fraudulently conveyed by deceased may be
recovered. When executor or administrator must bring action. —
When there is a deficiency of assets in the hands of an executor or
administrator for the payment of debts and expenses of
administration, and the deceased in his lifetime had conveyed real or
personal property, or a right or interest therein, or an debt or credit,
with intent to defraud his creditors or to avoid any right, debt, or duty;
or had so conveyed such property, right, interest, debt or credit that
by law the conveyance would be void as against his creditors, and
the subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime, the executor or
administrator may commence and prosecute to final judgment an
action for the recovery of such property, right, interest, debt, or credit
for the benefit of the creditors; but he shall not be bound to
commence the action unless on application of the creditors of the
deceased, not unless the creditors making the application pay such
part of the costs and expenses, or give security therefor to the
executor or administrator, as the court deems equitable.
Ma’am: So like you’ve said, if there are actions to be filed, it
has to be coursed through the administrator even if it would be
creditors who are going to be benefitted. The action of the
creditor can only propser if there are only deficiency in the
asset to satisfy the claims of the creditors to satisfy the claims
of the creditors and if the decedent during his lifetime dispose
of his properties to defraud his creditors, then in order to
recover the properties disposed of, it has to be the
administrator who will institute that action but the creditor will
have to advance the cost or post a bond in order to defray the
cost of the litigation.
So supposing the administrator refuses to file the action, can
the creditors themselves file the action?
Yes. Section 10. When creditor may bring action. Lien for costs. —
When there is such a deficiency of assets, and the deceased in his
lifetime had made or attempted such a conveyance, as is stated in
Transcribed by Renan Lasala and James Bernal
Special Proceedings TSN 1st Exam
37
the last preceding section, and the executor or administrator has not
commenced the action therein provided for, any creditor of the estate
may, with the permission of the court, commence and prosecute to
final judgment, in the name of the executor or administrator, a like
action for the recovery of the subject of the conveyance or attempted
conveyance for the benefit of the creditors. But the action shall not
be commenced until the creditor has filed in a court a bond executed
to the executor or administrator, in an amount approved by the
judge, conditioned to indemnify the executor or administrator against
the costs and expenses incurred by reason of such action. Such
creditor shall have a lien upon any judgment recovered by him in the
action for such costs and other expenses incurred therein as the
court deems equitable. Where the conveyance or attempted
conveyance had been made by the deceased in his lifetime in favor
of the executor or administrator, the action which a credit may bring
shall be in the name of all the creditors, and permission of the court
and filing of bond as above prescribed, are not necessary.
Ma’am: Ok so if it the creditors themselves who will bring an
action, it is still be in the name of the administrator as the
representative of the estate. And then, the court will have to
give prior approval and require the filing of the bond to answer
to the cost of the suit. The exception that the suit not be in the
name of the executor or administrator is when the action is
against the administrator himself. The action will be in the name
of all the creditors.
Ok lets go to Section 6 of rule 87
Section 6. Proceedings when property concealed, embezzled, or
fraudulently conveyed. — If an executor or administrator, heir,
legatee, creditor or other individual interested in the estate of the
deceased, complains to the court having jurisdiction of the estate
that a person is suspected of having concealed, embezzled, or
conveyed away any of the money, goods, or chattels of the
deceased, or that such person has in his possession or has
knowledge of any deed, conveyance, bond, contract, or other writing
which contains evidence of or tends or discloses the right, title,
interest, or claim of the deceased, the court may cite such suspected
person to appear before it any may examine him on oath on the
matter of such complaint; and if the person so cited refuses to
appear, or to answer on such examination or such interrogatories as
are put to him, the court may punish him for contempt, and may
commit him to prison until he submits to the order of the court. The
interrogatories put any such person, and his answers thereto, shall
be in writing and shall be filed in the clerk's office.
Ma’am: So this is an examination of persons concerning
properties suspected to have been concealed, embezzled or
conveyed in order that these properties be (?) to the estate
especially if the properties of the estate is insufficient to pay
the debts of the deceased. The nature of this examination
power of the court is discussed in the case of chua v absolute
management corporation…Oct 16, 2013.
Take note that the persons who are recipients of this fraudulently
conveyed properties, that may not have the effect of reconveying
these properties to the estate? It is only to gather information as to
the nature of the disposition of the properties such that the
administrator can be guided I filing a separate case for the recovery
of these properties where the issue of ownership would be threshed
out in the separate proceedings. So that is the ruling in chua v
absolute management corporation. Just because you availed of that
right of examination doesn’t mean that if after examination it turns
out that the properties are fraudulently conveyed, that does not have
the effect of reverting or reconveying the property in the estate.
There is still a need for a separate action to file to recover those
properties.