SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
November 17, 2015 (MMuÑoz)
“SPECIAL PROCEEDINGS” is the last set of rules that
you will have which is civil in nature from Rule 72-
109. Rule 110 that is the start of the Criminal
proceeding. Special Proceeding is different from
ordinary civil action.
Q: What is SPECIAL PROCEEDING?
A: It is the remedy by the party who wants to establish a
right of a particular fact.
Q: How is it different from an ordinary action?
A: When we speak of an ordinary civil action there is
protection or redress from a wrong committed by the other
party, so it is adversarial in nature. While when we talk of
special proceeding it seeks to establish a right or a particular
fact.
Also in special civil action there is an adverse party, in special
proceeding there is no adverse party.
In ordinary civil action as a general rule multiple appeals are
not allowed, while in special proceedings they are allowed.
Q: Can you consider a special proceeding an action?
A: No, because when we speak of an action there is a right,
obligation, violation and damage. While in special
proceedings there is no adverse party, it only seek a
declaration in court, to establish a right, status or a particular
fact.
Q: Give me examples of special proceedings.
A: Extrajudicial settlement of the estate of a deceased
person, adoption, guardianship, custody of children, escheat
proceedings, habeas corpus, change of name.
Q: Extrajudicial settlement of the estate is a special
proceeding?
A: Settlement of the estate of a deceased person.
Q: Where do you find a special proceeding?
A: Rules of Court, starting from Rule 72 to 109.
Q: Are there enumerations under the Rules of Court
special proceedings exclusive?
A: No, because it was not enumerated here in Special
Proceedings under the Rules of Court Relief action or relief
asking for Rehabilitation it was not mentioned so it can be
inferred that the list is not exclusive.
Q: Are the Rules on Civil Actions applicable to Special
Proceedings?
A: In the absence of any particular provision contrary to
what has been stipulated in the special proceedings in the
Rules of Court the provisions of civil proceedings can be
applied.
Q: Cite a rule that it can be applied.
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A: For instance in civil action there is a need for formal
pleadings in special proceeding there is no need of such.
Q: No need to file a pleading?
A: I’d like to change my answer, in terms of civil action
generally not all pleading need to be verified, while when we
speak of special proceeding there is a need for the pleading
to be verified. In such instance, it can be inferred that the
application of (silence)
Q: What rule in ordinary civil action will apply in
special proceedings?
A: For instance ma’am, the Rule on Joinder of Cases of
Action, wherein in an ordinary civil action, parties in the
same cause of action they can be impleaded jointly, while
when we speak of special proceedings. That particular rule of
joinder of causes of action is not allowed.
Q: Is that rule absolute? What cannot be joined in
special proceeding?
A: The causes of action.
Q: What causes of action?
A: It says here, that there can be no causes of action
between a special proceeding and an ordinary action
because special proceeding does not involve a cause of
action, therefore there is no joinder of causes of action by
one of special proceeding and the other is an ordinary action.
Q: Why can’t you not join them? What is the legal
basis for that?
Rule 2, Section 5, Rules of Civil Procedure. A party may
in one pleading assert, in the alternative or otherwise, as
many causes of action as he may have against an opposing
party, subject to the following conditions: (b) The joinder
shall not include special civil actions or actions governed by
special rules.
Q: Is that rule absolute? Can there be no joinder of
ordinary civil actions with special proceedings?
A: No, it is not absolute.
Q: What is the exception?
A: The court said in one case it said that “although the
settlement court has limited jurisdiction for PRACTICALITY
PURPOSES such as to avoid multiplicity of suits the court can
allow a special proceeding to be heard together with an
ordinary civil action.”
Q: What particular ordinary civil action can be joined
with special proceeding?
A: Those ordinary civil actions which are incidental or
collateral to the special proceedings for example ma’am
damages. It can be joined together with special proceeding
to avoid multiplicity of suits.
Q: Are you sure?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
A: For example ma’am a case to compel recognition and the
other is the claim of inheritance, so in that particular case
ma’am it can be joined into one complaint.
I mean ma’am that the jurisdiction will extend only provided
that the other action is collateral or incidental to a particular
issue for example filiations and a claim of inheritance so
ordinary civil action for claim of inheritance can be joined
together with an action or remedy of filiation provided that it
is incidental or collateral in order to avoid multiplicity of suits.
SETTLEMENT OF
ESTATE OF DECEASED
Q: What are the rules governing the settlement of the
estate of a deceased person?
A: The rules governing the settlement of the estate of a
decedent are the following:
 Rule 73 Sec. 1 (extrajudicial settlement of estate)
 Rule 74 (judicial settlement of estate)
 Rule 74 Section 2 (for settlement of estate of small
value)
 Rule 69 (partition)
 Rule 75 (probate of the will)
 Rule 79 (petition for letters of administration).
Q: When do you settle the estate? What are the
elements?
A: Someone died called a decedent and he left an estate.
DEATH
Q: What if there is no decedent?
A: Then there is no estate to settle.
If there will be no decedent then there will be no settlement
of the estate considering that the person who owns the
property is still living still have the capacity to administer.
Q: How do you determine if the person is a decedent?
A: A person must be dead, so there must be death, there
could be actual or constructive death. But the proof to
establish the death of the decedent would be the issuance of
a death certificate.
Q: Supposing there is no death certificate.
A: If there is no death certificate but there is actual death, it
can be proved by death certificate, but if there is
constructive death, then the Rules on Civil Code will apply
particularly Article 391 and Article 392.
Q: So when you say actual death, how do you prove
actual death?
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A: Actual death, if there is issuance by municipal officer duly
submitted with the local registry reporting the death of the
said individual, or there was declaration of medical death.
Q: How about a brain dead? Can that be an actual
death?
A: By definition, DEATH must be one that is irreversible
cessation of the circulatory or respiratory functions, or the
irreversible cessation of all functions of the entire brain
including the brain stem. So in order for us to rule that there
is actual death, the person must be medically and legally
dead.
So in order to determine that a person is medically and
legally dead it must be expressed in the opinion of the
person’s attending physician, so the doctor will declare based
on acceptable standards of medical practice, also this
definition of ACTUAL DEATH of brain station if provided
under the ORGAN DONATION ACT.
Q: What if there is no medical expert who will declare
the person dead? Does that mean we cannot prove
actual death?
A: If there is no actual death, we will be able to prove that
there is death, I think it will rest on presumptive death.
Q: What are the instances wherein you can apply
presumptive death?
A:
General Rule:
If the person whereabouts was unknown for about
7 years that would be presumptive death for
purposes of the business of that person.
In order for law on succession to operate the
whereabouts of the person must be unknown for
about 10 years.
The exception of the 10-year period for the determination of
presumptive death:
If the person missing is already above the age of
75, so it would be enough that the 5-year period
would prescribe in order to consider him dead.
Also exempted there would be individuals who are
missing prior who is subjected to danger upon their
person, if that would be the case, 4 years is enough
for them missing in order to be presumed dead.
Q: So when do you declare someone presumptively
dead after the lapse of 4 years? What are the
instances?
A: The instances are:
 A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of 4 years since the loss of the
vessel or aeroplane.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
 A person in the armed forces who has taken part in
war, and has been missing for 4 years.
 A person who has been in danger of death under
circumstances and his existence has not been
known for 4 years.
Q: So in presumptive death, the common
denominator here is that the person is missing for
certain number of years.
So going back to my question, you have here a person
who died but there is no medical expert to declare
him dead, how do you prove actual death? He is not
missing his cadaver is right in front of you but nobody
will declare him dead in a medical certificate, how do
you prove now his actual death? He is not missing, so
you cannot apply presumptive death because the
person is not missing, how then can you prove the
actual death?
A: Considering that there is the body and without a
declaration by an expert that he is actually dead...
Q: You have a technical definition of what a dead
person is. If you see a person there lying down not
moving for days and no medical expert to declare him
dead will you consider him actually dead?
A: Yes.
Q: Are you sure, what if he is just paralyzed and he
cannot move, what if that person is comatose and he
is no capable of moving, how then can you prove
actual death?
A: Call 911  (Atty. T smiles, Shelumiel takes the crown)
Q: Death Certificate is simply one of the ways to
prove actual death but in the absence of that how do
you prove? In other words if the death certificate is
the only proof of actual death or is there any other
way of proving actual death?
A: Report to the police   
ATTY. T: Without any person dying or without any
dead person you cannot settle an estate. So one
important element then is that there must be
somebody who died.
Now, then it will follow that when a person dies then
there has to be settlement of estate?
A: No. There could be instances that there is no settlement
of estate especially if the decedent left no property.
ATTY. T: So for you to resort to settlement of an
estate there must be death of a person and existence
of the estate.
Q: When you say death it could be actual or
presumptive death. When you say actual the best
prove of that is the death certificate, if there is no
death certificate how do you prove death?
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You don’t have to be an expert in order to determine
that the person is dead, in fact in your Rules on
Evidence you don’t need and expert witness to testify
certain conditions. So an ordinary person can
perceive whether a person is dead or not. Even if
there is no medical certificate you can still prove the
fact of death. Eh kung naagnas na siya diyan or putol
na ang ulo niya, sasabihin mo pang hindi pa siya
patay.
So the ACTUAL PHYSICAL CONDITION of the person
who died can presented as proof, that he is in fact
dead kung walang makuhang death certificate. If you
have photos na pinaglamayan na siya na nasa
kabaong na siya obviously patay na siya. So there are
other ways that you can prove actual death if there is
no death certificate. Ordinary witnesses can attest to
the fact of death.
Although nowadays it is a common practice that a
person will be given a death certificate or the
relatives will be issued a death certificate upon the
person who died, in fact kahit na namatay sa bahay,
i-ru-rush sa hospital just for the sake na ma-issue-
han ng death certificate ang ilalagay lang doon DOA
or dead on arrival. So what happens there is a mere
confirmation that the person brought to the hospital
was in fact dead.
So take note of that, there is no settlement of estate
unless there is a dead person and there is also no
settlement of estate if there is no estate to speak of.
ESTATE IN THE PHILIPPINES
Q: What do you mean by estate?
A: An estate is defined as the mass of property, rights and
assets left by the decedent.
The moment the decedent will die, all properties left together
with all the rights are now extinguished by the death of the
decedent will be included in his estate deducted of which are
deductions as well as other claims.
Q: What is the nature of an estate?
A: The nature of an estate as ruled by the court it is
considered as an artificial person to enable the estate of the
decedent to fulfil obligations left by the decedent as well as
to properly dispose the property left by the decedent.
Q: So an estate is a juridical entity? What is the
nature of an estate?
A: It is an artificial person.
Q: What does that mean?
A: Since it is considered as an artificial person, the estate has
a personality or it is a person by fiction of law.
Q: What is the purpose of an estate?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
If it by fiction of law, if it is an artificial person what
is the purpose of an estate?
A: The very purpose of considering it as an artificial person is
to prevent or avoid injustice or prejudice because if it will not
be considered as an artificial person there would be now a
possibility for the exercise of the legal rights as well as the
fulfilment of the obligations are not extinguished upon the
death of the decedent. We have this well cited rule under our
jurisdiction that heirs will stand to inherit from the decedent
should not be liable for any liabilities left by the decedent. So
if that will be the case if we will follow that the heirs will
succeed to that of the decedent they are not allowed to be
liable for the obligations left by the decedent, then there
would be injustice or prejudice.
Q: What is the main purpose of an estate?
A: The main purpose of an estate would be to exempt the
personality of the decedent as to distribution of the
properties to the heirs.
Q: What is the nationality of an estate?
A: having said that it is the extension of the personality of
the decedent, it follows that the nationality of the decedent
would also be the nationality of the estate.
Q: Define “estate”?
A: Estate is a mass of property, rights and assets left by the
decedent.
Q: What are the obligations left by the decedent?
A: The obligations or claims against the estate.
Q: Who will be responsible for the obligations left by
the decedent?
A: It would be the estate.
Q: What about the heirs?
A: The heirs are not liable for the obligations basically the
estate is considered as a separate entity. So there would be
settlement of these obligations by the administrator or the
executor then the properties will now be distributed to the
heirs (by distribution or settlement).
Q: So how are the heirs related to the estate of the
deceased person? What is now the role of the heirs in
so far as the deceased person is concerned?
A: The heirs (silence)
Q: How do the heirs here figure vis-a-vis against the
deceased person as well as the estate?
A: Under the old rule, the heirs are considered the extension
of the personality of the decedent, so they are expected to
assume the rights and obligations of the decedent but upon
the enactment of the new rule the estate now is deemed to
be the extension of the personality of the decedent. THE
ESTATE NOW IS THE EXTENSION NO LONGER THE HEIRS.
Q: What is the implication of that?
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A: The heirs are not liable to the obligations not extinguished
upon the death of the decedent what they are entitled is to
receive net distributive share of the estate after the estate
have been settled alls the claims and obligations.
Q: So what is the difference whether the heirs are
extension of the personality of the deceased person
or it is the estate? The heirs would still be the same
their respective inheritance from the deceased
person. Why there has to be the creation of the legal
fiction of the estate?
A: I think the creation of the legal fiction is not only for the
benefit of the heirs entitled to receive but also to third
persons like creditors of the estate, so to make sure that
their interest will be protected.
Q: The creditors are protected because if the heirs are
extension of the legal personality of the deceased
person, the creditors will only go after the heirs to
collect for the debt due them from the deceased
person.
A: If that would be the case ma’am it would CONTRAVENE
THE RULE that “THE HEIR IS NOT RESPONSIBLE FOR ANY
DEBT OF THE DECEASED”, if the heirs would be considered
extension of the decedent it would follow that the heirs
would now be personally liable to payment of the debt of the
deceased. Since there is a rule that it is not responsible for
any payment so there must be someone who should be
responsible for the payment of the debt of the deceased.
Thus, there is now a need for us to consider the estate as an
artificial person by legal fiction in order for someone now to
take responsibility in paying the debts or obligations of the
deceased.
Q: So in order to foresee that there are obligations?
A: Yes ma’am.
Q: So that is the only reason why the estate is
considered the extension of the personality of the
deceased person in so far as the obligations are
concerned? What is wrong with the idea that the
heirs are the extension of the personality of the
deceased person it the first place? Why is that
particular concept abandoned?
What is wrong with the idea that the heirs are the
extension of the personality of the deceased?
A: Not only the obligations, since the estate also includes
property and rights, considering now that the estate is an
artificial person in order to exercise rights imputed in the
estate as what was illustrated in the case of LIMJOCO vs.
PEDRO.
Q: Why, are the heirs can they not exercise the rights
of the deceased person? When do the heirs succeed
to their inheritance?
A: The heirs succeed upon death.
Q: So if the heirs succeed from the moment of death,
why is it that there has to be another artificial person
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

that will exercise the rights over those properties left
by the deceased when the heirs have already
succeeded at the moment of death? Will it be more
appropriate if we go back to the old concept that the
heirs are the extension of the legal personality of the
deceased because they succeed from the moment of
death?
A: Since the heirs rights are still inchoate and if included in
the estate are certain rights or interests are deemed
incomplete it would be deemed incomplete until there is
(silence)
Q: When do you say that the rights of the heirs are
inchoate?
A: It is inchoate since there is yet no distribution of the
estate to the heirs.
Q: So when the decedent dies their rights are
inchoate?
A: No ma’am, upon the death or by operation of the death of
the decedent the rights of the heirs are now vested with the
inheritance with the estate, but since they could not yet get
their share prior to the distribution of the estate it is by legal
exigency or for practicality purposes that there must be that
personality that will exercise the rights and obligations that
has survived after the death of the deceased it would be
exercised now by the estate.
Q: The question here is would it be better if we go
back to the old concept that the heirs are the
extension of the legal personality of the deceased
after all they succeed to the property of the deceased
from the moment of death? Why is there a need for
another artificial being to intervene?
A: I think it would be for practical purposes especially if there
would be numerous heirs.
ATTY. T: Have you not wondered why there has to be
an “estate” when under the law the heirs succeed
automatically upon death, no question about it.
Prior to the death the rights to succeed to properties
are merely inchoate, so the children cannot override
the decisions of their parents to disposed of property,
titled under their parents name, they have no right
because they are not the owners.
Although they have the right to inherit from their
parents their rights are merely inchoate until their
parents die. When the parents die then that is the
time they became co-owners of the property and then
they will have an estate on the disposition of the
property.
So bakit may ESTATE-ESTATE pa? Why do we need an
estate? And worst THE LAW CONSIDERED THE
ESTATE AS A JURIDICAL ENTITY as an artificial being
just like a corporation, just like a partnership, just
like a separate legal personality from the heirs, it can
sue and be sued, the legal implication when we
consider an estate as a juridical being or an artificial
person by operation of law it exist independently of
the heirs.
So what now is the ROLE of the ESTATE when the
heirs considered have succeeded to the properties of
the decedent from the moment of death?
Hindi pa pampagulo lang ang ESTATE diyan?
Q: How did LIMJOCO case explain that?
A: In the case of LIMJOCO there is a declaration that the
estate now is a separate person, an artificial or juridical
person for the purposes of the settlement and the
distribution of the estate including in the settlement and
distribution would be the exercise of judicial administration of
right and the fulfilment of the obligations which provide after
the death of the decedent.
So in this case ma’am since the decedent has a pending
application for certificate of public convenience to operate an
ice plant before the Public Service Commission it would be an
injustice as worded by the Supreme Court if it will not be
considered as an artificial person to succeed now as to the
exercise of the certificate of public convenience issued during
the time applied by the decedent, the application during the
lifetime of the decedent.
Q: Why did the Supreme Court not consider the heirs
here, as the extension of the personality of the
decedent?
A: The SC said ma’am that the heirs or natural persons
having diverse interest as to the estate of the decedent
cannot be presumed to be those (he rephrased his answer).
The interest which the natural persons have is not complete
until there has been due administration and one who
purchase in the name of the decedent to an instrument
purported to be (silence)
Q: Why is it that the SC did not consider here the
heirs as the extension of the legal personality of the
deceased? Why is it that the estate here has to
intervene and become an intermediary before the
heirs can succeed or actually get their lands or
properties left by the decedent?
A: Within the philosophy of the present legal system, the
underlying principle of the legal fiction by which for certain
purposes the estate of the deceased person is considered a
person is the avoidance of injustice or prejudice resulting
from the impossibility of the exercising such legal rights in
fulfilling such legal obligations of the decedent which has
survived after his death unless the fiction is divulge.
So if it is not considered as an artificial person then the loss
of investment pertaining to the pertaining to the obligation of
the CPN will be endured not only by the heirs but also the
creditors who stand to claim from the estate. Thus, in order
to prevent this injustice hence the need for the consideration
of the estate as an artificial or juridical person.

5
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
ATTY. T: Okay, so in this case the only reason that you
can reduce by the court upheld he estate to be the
extension of the legal personality of the deceased is
just for reason of PRACTICALITY. The issue here is
citizenship, whether the estate can be considered to
have substituted the deceased of the application
which requires a certain nationality requirement,
under the constitution it has to be a Filipino. There is
as citizenship issue here involved.
Now if you look at it, if you analyze it, it could be that
if you do not allow the estate to exist as a separate
juridical personality or entity, that it is the extension
of the legal personality of the deceased but it
considers the heirs to be the extension of the legal
personality of the deceased there could be some
conflict that would arise.
What if the deceased has different nationality as his
heirs, can you now claim that the heirs are still
extension of the legal personality of the deceased,
that’s the problem.
And in the distribution of the estate can the heirs
stand to inherit from the properties of the deceased,
will you expect the heirs to entertain the claims of
the creditors? Do you expect the heirs to honor the
claims of the creditors thereby lengthening their
shares in the properties? That is another problem.
Practical, to avoid conflict of interest, to avoid
conflicting citizenship that would arise then it would
be better that if you aid that juridical person, that
artificial person called an estate that will be
considered the extension of the legal personality of
the deceased person instead of the heirs.
That is also inconsonance with the rule that the heirs
do not inherit the obligations of the deceased. So the
obligations of the deceased are chargeable to the
property left by the deceased.
Supposing the claim of the creditor is more than the
properties left by the deceased does that mean if you
are to consider that the heirs are the extension of the
legal personality of the deceased should they be
made to pay out of their own pockets, the difference
or the balance?
So that would not be fair, that will be unfair. So the
most practical thing to do for the protection of the
creditors as well as for the protection of the heirs
would be to allow that legal fiction so that at the end
of the day if there are several claims and the claims of
the creditors exceeds the values of the property left
by the decedent then that would be the end of it, the
heirs can no longer be held liable for the balance or
excess. Now if the claims are less than the value of
the estate, the residue goes to the heirs.
So the question here is who are the priorities over the
properties left by the decedent, will it be the heirs
who succeeds to his properties from the moment of
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death or will it be the creditors who have claims
against the deceased?
The rule here is that heirs get to inherit the NET
ESTATE OF THE DECEASED meaning after all claims of
the creditors shall have been taken.
So even if the property left by the decedent is
automatically under the law considered to be
transferred to the heirs from the moment of death, if
that the same property is annotated with a lien by a
creditor, then the creditor has priority over that
particular property.
Or even if there is no lien by the mere fact that the
creditor has a valid claim against the deceased and
the deceased left certain properties, the creditor can
still enforce the claim against the properties left by
the deceased. Why? Because the creditor has no
recourse against the heirs themselves, the last
recourse of the creditors is against the properties of
the deceased. So the creditors will have priority over
the estate.
In the meantime that there are claims against the
estate or the properties of the deceased you have
that settlement of the estate precisely in order to
settle all the claims and only then that it is
determined that there is residue or there are
properties left after paying of all the debts can you
say that the heirs can now be given their respective
shares until then the heirs cannot get their parts of
the properties even though by operation of law they
are considered to have succeed to the properties from
the moment of death.
The ONLY REASON FOR THAT IS TO AVOID AN
INJUSTICE DONE TO THE CREDITORS. To avoid
conflict of interest, that the heirs might have by not
honoring on the claims of the creditors once they get
their parts of the property. That is the main
philosophy why the estate have to be considered to
be a juridical person and why the law imposes such
an artificial being after the person dies.
Q: An estate is an artificial being, it is a juridical
person, can you include as part of the estate a
corporation?
A: NO, as held in case of LIM vs. CA:
“As a general rule a corporation is clothed with a
separate and distinct personality from the estate.
It is settled that a corporation is clothed with
personality separate and distinct from that of the
persons composing it. It may not generally be held
liable for that of the persons composing it. It may
not be held liable for the personal indebtedness of
its stockholders or those of the entities connected
with it.”
Q: Now, in this case the corporations are practically
owned by the deceased. The shareholdings here
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
practically belong to the deceased, can they not be
considered the corporation as part of the estate?
A: No ma’am, because it was also held that those
corporations are registered under Torrens title and it was
also held in this case that the presumption of conclusiveness
of said titles in favor of private respondents should stand
undisturbed.
Q: Is there an exception to that? Or is that absolute?
A: There is an exception, wherein the doctrine of corporate
entity is applied by the Supreme Court.
The doctrine of piercing the veil of corporate entity.
The court held here that the corporate mask may be lifted
and 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
Q: So, is there a reason to pierce the corporate veil in
this case?
A: In this case, no. It was not actually proven that there was
fraud, there was no proof which was submitted here by the
spouse of the decedent which says that the formation of the
corporation was formed through fraud.
ATTY. T: So take note that in the case of Lim, for sum
to be included (“for the sum to be included”? I don’t know
if I heard it right even if I kept on repeating, it is unclear) in
the inventory of the estate would be the corporation
itself because the corporation hold properties, certain
properties that were supposedly in the name of the
corporation by the decedent.
In other words the CORPORATION IS MERELY THE
HOLDER OF THE TITLES OF CERTAIN PROPERTIES
ALLEGEDLY BOUGHT BY THE DECEDENT DURING HIS
LIFETIME.
Let us go back to the definition of an ESTATE. IT IS A
MASS OF PROPERTY, RIGHTS AND ASSETS.
Can you consider a corporation a property or a right
or an asset?
Generally under the law, a corporation is not a
property, it is in fact a juridical entity, that it includes
a separate legal personality.
So by the definition alone of a corporation, you can
say that it cannot be included as part of the estate.
How can a juridical entity be owned by another
juridical entity? So the very idea becomes absurd.
The better alternative here would have been the
shares of the deceased should be included in the
inventory. The shares of the deceased in those
corporations should be included in the inventory
7
because the shares of stocks are considered personal
property.
Now, there are instances where the corporations are
merely used as dummies. That was actually what is
being disputed here, the corporations were merely
served as dummies of the deceased.
Q: So, can you pierce now the corporate veil of this
corporation on the ground that it was only used as
dummies? Is it that enough ground to pierce the
corporate veil of the corporations?
A: No ma’am, it was stated by the court that it has to be
clear and convincing so that court will rule upon it and that
the doctrine of piercing the corporate veil of corporate fiction
will be applied.
Q: Okay, in the case CMH vs. CA, what happened
here?
A: In this case, there were siblings who were stockholders of
CMH Agricultural Corporation which owned several properties
and after their mother’s death the siblings extra-judicially
divided belonging to CMH Corporation. The house and lot in
Bacolod was adjudicated to Cristobal but the title was not
surrendered to him and so later on Cristobal filed a complaint
for disregarding and piercing the veil of corporate fiction
upon the declaration of successional rights and recovery of
title and damages, mainly that CMH is being used of the
crime and recovery of his successional rights over the
Bacolod property.
As a defense Coquilla siblings argued that the complaint to
pierce the veil is commendable under the Securities and
Exchange Commission and outside the jurisdiction of the
Regular Court and that Cristobal had no legal personality to
sue as it was been filed as a mere stockholder.
The issue here is whether or not the court has jurisdiction
over the dispute.
The court said YES. Cristobal’s act was not actually an
intracorporate dispute commendable by the SEC but his
primary objective was to protect his successional rights and
that his relationship as stockholder was merely incidental.
Q: So was the corporate veil f the corporation here
disregarded? Was there a piercing of corporate veil
here?
A: Yes ma’am, there was but it did not convert the action
into an intracorporate dispute. It was merely cited as a
ground relied upon by the respondent to prove his claim of
ownership over the said house and lot whereas through the
said prayer he in effect resort to the court to confirm his
allegations and thus protecting his successional rights.
Q: So, what happened in this case, how did the SC
explain the separate legal personality of the
corporation, the CMH?
A: here, the court cited a case wherein if the legal fiction of
separate corporate personality were sustained, then it would
be used to delay and ultimately deprive and defraud
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

respondents of their successional rights over the estate of action piercing the corporate veil of that corporation
their deceased father. and ask in the court to declare its asset to be part of
the asset of the deceased.
Q: So, what does it tell you?
So the main reason why you are asking the court to
A: I think that the application of the court of that doctrine
pierce the corporate veil is to protect your
would be a case to case basis wherein while it is true that
successional right.
the court will apply such doctrine where there are allegations
of fraud where the rights of the respondents here would be
delayed and where it would be used of the crime and to
November 25, 2016 (ACutamora)
defraud the claimant and the court could not apply such
doctrine. (Last time, we ended with the kinds of settlements.
Q: What was the action that was filed here? Now you follow the rules, the way they are presented,
sometimes they are confusing kasi pa-jump jump siya eh. So
A: It was the declaration of successional right and recovery
we will discuss and organize them according to topics.)
of title and damages.
The Rules will tell you that there are two kinds of
ATTY. T: So take note, in here it was an ordinary
settlement of the estate. We have:
action that was filed, and what is the main cause of
action to disregard and pierce the corporate veil of 1. Extra-judicial settlement (EXJ)
CMH and to recognize the successional right of the
heirs. 2. Judicial settlement (J)

In so far as corporations are concerned that hold Under the extra-judicial settlement, there are two
properties that should rightfully belong to the estate kinds under it:
of the deceased person this is your remedy. 1. By the affidavit of self-adjudication – if there
You do not have to include the corporation as part of is only one heir
the estate of that deceased person but your REMEDY 2. Agreement among the heirs – if there are
is to act for the court to disregard the corporate veil several heirs
of that corporation by alleging a defraudation of your
successional rights as an heir of the deceased person. Then we have the judicial settlement, we have:

Here, they were able to prove that, how? They are 1. Summary settlement of the estate of small
alleging here that the properties were still in the value
name of the corporation to avoid payment of taxes. 2. Testate settlement proceeding – the
So the very reason for the creation of the corporation deceased left a last will and testament so you
was already fraudulent because it was intended to have to go through probate; this is also
avoid payment of taxes. known as “probate proceeding”
What I am saying here is that, it is not proven, if 3. Intestate settlement proceeding – when
indeed the corporation is really being used through there is no last will and testament
fraudulent means, this is your remedy, you ask the
court to disregard the separate corporate personality
of that corporation and consider the asset of that
corporation as belonging to the estate of the EXTRAJUDICIAL SETTLEMENT
deceased person. Rule 74
How do you do it? The same as what they did here. To
So let us take up extra-judicial settlement which is governed
file a separate case, ordinary action against the
by Rule 74.
corporation in order to pierce the veil of that
corporate fiction. Q: What are the requisites under Rule 74?
Is this the only way that this happened? NO, there A: The requisites are:
was a previous case decided by the SC in case of Sy
1. There is no will
versus CA and that was actually the basis for the
complaint. 2. There are no debts at the time of his debt or such
debts must have been paid
So, is a corporation is merely used as a dummy, this is
your remedy, in order that the heirs can include asses 3. When the heirs are of age, or if minors, are
of the corporation as part of inventory of the estate. represented by legal guardian
So the remedy is not for you to include the 4. Execution of public instrument
corporation itself as an asset, but you have a separate

8
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Section 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.
xxx
Q: Give me examples of what are considered debts
left by the decedent? One of the requisites for the
extra-judicial settlement of estate is that there are no
debts. What do you mean by debts?
Student: Debts are liabilities or payables or loans which the
decedent fail to pay during his lifetime. It includes the
expenses for administration or the expenses for the
settlement of the estate.
Q: How about burial expenses? For the illness of the
decedent?
Student: They are expenses.
ATTY. T: If those expenses remain outstanding,
meaning there are debts. Since there are debts, you
cannot go for extra-judicial settlement. Because one
of the requisites under Rule 74 is that there are no
debts.
Paano nga naman mababayaran ng decedent ang
burial expenses niya na patay naman siya diba?
Or one of the heirs will shoulder the expense. So
babayaran na niya, meaning wala ng mga unpaid
expenses for funeral services.
Eh what if may memorial plan pala si decedent so
those expenses will be taken cared of and the one
who paid will no longer seek reimbursement. Or even
the taxes. If you pay the estate tax (like what the
Chinese do here in Davao), pwede na mag-extra
judicial settlement. They no longer need to submit
the estate for judicial settlement but rather an
agreement among the heirs nalang.
Q: What is this PRESUMPTION OF NO DEBT?
S: The last sentence of the first paragraph of S1, Rule 74.
Section 1. x x x
It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within 2
years after the death of the decedent.
xxx
Q: What is the period that we are looking for here?
S: Two years from the death of the decedent.
9
So the reckoning period here is the death of the decedent. If
within the said two years, nobody (no creditor) files a
petition for letters of administration, then the presumption
arises. Then, the heirs can go for extra-judicial settlement
because no creditors surfaced within the two years.
Q: If you relate this to the payment of estate tax,
what is the period for you to pay estate tax?
ATTY. T: 6 months from death of the decedent.
Because ownership is transferred from the moment of
death. Therefore, within the 6 months period, dapat
nagkaroon na kayo ng EXJ settlement.
And since you have to do it within the 6-month
period, if you follow the Tax Code, otherwise you will
be assessed with penalties and surcharges.
Obviously here, there is NO “presumption of debt”
because the settlement was made within the 2 year
period.
So in EXJ settlement, you have to claim that no
creditor surfaced within the 2 years from the death of
the decedent. Pag walang creditor, then safe ang
iyong EXJ settlement because nobody came forward
to claim from the estate of the decedent.
That is how you reconcile it. Under the Tax Code, you
are given 6 months (non-extendible). If you pay late,
you will be slapped with penalties, interests and
surcharges. Since you have to do it within the 6
month period, then there is a risk that the creditor
will resurface because there is no presumption yet.
The presumption only arises 2 years from death. The
said period only creates a presumption. This
presumption is rebuttable. Therefore, even beyond
the 2 year period, when a creditor surfaces, pwede pa
rin siyang magclaim. Pwede niya pa rin icontest ang
EXJ settlement even if it was filed beyond the 2 year
period, especially when the settlement was done in
secret or filed precisely to defraud the creditors.
We are saying here that if there is no debts, there is
no need to file a case in court to settle the estate of
the deceased. Pirma lang kayo ng document and you
get your share without going to court. That is the
essence of the EXJ settlement. You get your share
from the estate according to the agreement of the
heirs.
If there are no debts but the heir would still want to
file for the settlement of the estate, will not the court
dismiss the case? Is the petition dismissible? Wala
namang debt pero bakit mag-judicial settlement pa?
Take note a settlement proceeding is not an ordinary
action. It is a special proceeding – it is to establish a
fact, a status.
What are you trying to establish when you file for the
settlement of the estate?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
The fact of death, the fact that an estate exists, that
there are heirs entitled to share in that estate and
that the heirs are entitled to a share of that estate or
that there are debts.
If you opt EXJ settlement, you do not need to file a
petition for the settlement of an estate. You only go
for the ordinary civil action of partition. That is under
Rule 69, you already know that.
But we are talking here of settlement of estate. A
settlement of estate is a very tedious proceeding.
There are so many stages that you have to go
through. If the heirs are at war at each other, it can
be very (inaudible). Every time they go to court, mag-
away lang sila. Since these are heirs, they are related
to one another, it is a highly emotional case. As a
lawyer, you will be caught in the crossfire. That is
how tedious it is. Ask and make a survey how long a
settlement proceeding last before it would be
terminated. The minimum would be 10 years. Kulang
pa nga yang 10 years eh. I have a case that started in
1999 and until now, di pa natatapos. 16 years na yan.
(Atty. T continued talking about her case)
So if you are the lawyer of the heirs, your best
recourse would be EXJ settlement because unless the
estate is settled, the heirs cannot take possession or
have their respective shares in the estate. It will
remain in the name of the decedent. Hindi nila mata-
transfer ang properties under their name, not to
mention na pumapatak ang penalties and surcharges
nila sa BIR. So it is best that you go for EXJ
settlement. Now, are you going for judicial
settlement? You are looking twenty years there
before there can be transfer of title.
If the estate is so vast, like composed of several
properties, some high-valued properties and some
not so valuable, again how will you divide the
properties? Sino makakakuha ng high valued
properties and yung mga hindi masyado mahal? So
how do you settle it? Because the main goal here is to
transfer the title of the properties to the heirs. That is
why you need the settlement of the estate, whether
EXJ or J. But the most expeditious way of doing it
would be EXJ.
So, going back to my question, walang debts. So
kandidato talaga siya for EXJ settlement pero nagfile
talaga ng petition for settlement ang heirs. Can they
do that? How?
The trend is that, in fact there are cases assigned to
you, the petition will be dismissed. If I were the
judge, I will dismiss it. However, there are
exceptions.
In the case of Pereira vs. CA (G.R. No. L-81147 June
20, 1989), the Court said there that even if there are
debts, when there are good reasons, a judicial
settlement proceeding may proceed.
10
Q: What is the case all about?
A: “Thus, it has been repeatedly held that when a person
dies without leaving pending obligations to be paid, his heirs,
whether of age or not, are not bound to submit the property
to a judicial administration, which is always long and costly,
or to apply for the appointment of an administrator by the
Court. It has been uniformly held that in such case the
judicial administration and the appointment of an
administrator are superfluous and unnecessary proceedings.”
Q: Did the court say what constitutes as good reason?
A:
From the case: “xxx as the respondent judge has
indicated, questions as to what property belonged
to the deceased (and therefore to the heirs) may
properly be ventilated in the partition proceedings,
especially where such property is in the hands of
one heir.
“In another case, We held that if the reason for
seeking an appointment as administrator is merely
to avoid a multiplicity of suits since the heir seeking
such appointment wants to ask for the annulment
of certain transfers of property, that same objective
could be achieved in an action for partition and the
trial court is not justified in issuing letters of
administration.
In still another case, We did not find so powerful a
reason the argument that the appointment of the
husband, a usufructuary forced heir of his deceased
wife, as judicial administrator is necessary in order
for him to have legal capacity to appear in the
intestate proceedings of his wife's deceased mother,
since he may just adduce proof of his being a
forced heir in the intestate proceedings of the
latter.”
ATTY. T: So even if there are no debts but there are
good reasons, provided that you convinced the court
that there are good reasons, then it can be allowed.
Absent the good reasons, the court should dismiss
and the parties should recourse to EXJ.
It was mentioned a while ago that the public
instrument can either be an Affidavit of Self-
Adjudication if there is only one heir or a Partition
Agreement if there are several heirs.
It is called a partition agreement because it is a
document wherein you divide the properties of the
decedent. You state there the technical description
and what properties go to specific heirs. Therefore,
you have to hire a geodetic engineer in order to have
that technical description. Or if the heir would want
to get the entire property and will relinquish his share
in other properties, then that can be stated in the
instrument.
Take note that in the said partition agreement, the
parties can state how they want to divide the
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
properties as they see fit. It doesn’t have to be in
accordance with the sharing provided under the Civil
Code. You can do away with that. One heir can go this
particular property and everybody agrees, then so be
it. If they all agree to that, no problem. The partition
agreement, under the law, can be done in accordance
with the sharing of the parties as they see fit. For as
long as they all agree, then it can be allowed.
The problem there is that the BIR will scrutinize it. If
one heir gets the bigger share, then they (BIR) will
consider it as a donation kasi bigger yung share nila
under the Law on Succession. So mag-aassess na
naman si BIR ng donor’s tax notwithstanding na nag-
agree lahat ng heirs. Kontrabida talaga si BIR and
that is really true especially if you put in your EXJ
settlement “Waiver of Rights.” Kapag mabasa nila
yan, automatic may donation for BIR so aside from
estate tax, you will be asked to pay for donor’s tax.
It was stated that if there are no debts, then better to
call for EXJ settlement. But if even there are no debts,
if there are good reasons, judicial settlement can be
allowed. Supposing there are no good reasons and no
debts, yet you recourse for judicial settlement, you
already know the outcome for that. Ma-dismiss na
yan. Kapag na-dismiss yan, what does it mean?
Goodbye filing fees. Take note that the filing fees are
based on the gross value of the estate. So if billion
ang properties, malaki ang filing fees. If madismiss
kasi nga walang debts, then goodbye filing fees.
What happens now if you have a pending judicial
settlement, no debt, can you convert the judicial
settlement to an ordinary action for partition? Kasi
sayang naman ang filing fees. So pwede ba na from
special proceeding to ordinary civil action?
ATTY. T: Yes.
Q: What happened in the case of Avelino vs. CA (G.R.
No. 115181. March 31, 2000)?
A:
Ruling from the FT: “Nor can we sustain petitioner's
argument that the order of the trial court converting
an action for letters of administration to one for
judicial partition has no basis in the Rules of Court,
hence procedurally infirm. The basis for the trial
court's order is Section 1, Rule 74 of the Rules of
Court. It provides that in cases where the heirs
disagree as to the partition of the estate and no
extrajudicial settlement is possible, then an ordinary
action for partition may be resorted to, as in this
case. We have held that where the more
expeditious remedy of partition is available to the
heirs, then the heirs or the majority of them may
not be compelled to submit to administration
proceedings. The trial court appropriately converted
petitioner's action for letters of administration into a
suit for judicial partition, upon motion of the private
11
respondents. No reversible error may be attributed
to the Court of Appeals when it found the trial
court's action procedurally in order.”
ATTY. T: So it can be allowed. It can be converted.
Kasi nga sayang ang filing fees niyo. That is the very
reason why it is allowed. So later if you find out in
the judicial settlement that there are really no debts,
that there are no will or that all heirs are of legal age,
then you can convert it to an ordinary action for
partition. Pwede na mag-partition agreement. You
can ask the court to convert the special proceeding to
ordinary action wherein the procedure in the latter
case is faster.
In partition, there are only two stages:
First, you only need to determine whether
there is co-ownership.
Second, how you end the co-ownership or
divide the properties (in this case, the
estate).
Q: Can you convert an action for partition to a judicial
settlement for estate? Supposing you file a partition
case then you find out that there are debts or unpaid
creditors, can you convert it to a special proceeding?
S: No. The procedure for judicial settlement follows a more
stringent procedure compared to a partition case.
From the case of Gerilla vs. Figuracion, GR
124322, August 22, 2006: “Thus, the heirs
(petitioner and respondents) have to submit their
father’s estate to settlement because the
determination of these expenses cannot be done in
an action for partition. In estate settlement
proceedings, there is a proper procedure for the
accounting of all expenses for which the estate
must answer. If it is any consolation at all to
petitioner, the heirs or distributees of the properties
may take possession thereof even before the
settlement of accounts, as long as they first file a
bond conditioned on the payment of the estate’s
obligations.”
So it is a one way process: settlement to partition, not
partition to settlement. Take note of that.
It is very crucial that the moment it becomes apparent that
the deceased left outstanding debts, the partition case must
be dismissed. Goodbye filing fees talaga.
When you file another case for the settlement of the estate,
you have to pay again the filing fees. Kaya nga mag-EXJ
nalang kayo. Kung pasok kayo sa EXJ settlement, go for it.
You should try to avoid litigation. The moment you go for
litigation, bawat kilos niyo, may bayad. Hindi kayo i-entertain
ng court kung walang bayad. Take note of this, it is very
important that you know the rules.
The rule of thumb here is that among the requisites, the very
crucial there to avoid resort to judicial settlement is the
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
existence or presence of debt. Pag-walang utang, no need
for judicial settlement.
There are several cases decided by the Supreme Court that
would emphasize that point. The bulk of judicial settlement
cases is devoted to payment of debts, mahaba yan masyado
devoted to paying the creditors.
If there is no will, the heirs are of age (or minors but
represented by guardians) and no debts, wag na kayong
magpakahirap to file for judicial settlement when you can
settle the estate by simply having the heirs executive a
private document stating how they divide the properties.
Q: What is the purpose of having your agreement be in a
public instrument? Why do you need it? When you say public
instrument, it simply means that the instrument is notarized.
What happens when it is notarized?
ATTY. T: An instrument becomes a public instrument when it
is acknowledged before a notary public. Even if you don’t
register it with the Registry of Deeds, it is still a public
instrument.
Q: Why do you need to have it notarized?
ATTY. T: The effect of notarizing a document is it
ceases to be a private document. It becomes a public
document. Because it is a public document, the
presumption of its correctness arises and the
voluntariness of the execution of the document is
also presumed. But the most important thing here is
that if it is a public document, the burden of proof to
assail that document becomes higher.
The quantum of proof required would be clear and
convincing evidence. It is a little short of proof
beyond reasonable doubt but higher than
preponderance of evidence. That is why if there are
cases in court or if you encounter a case asking you
to question the validity of the EXJ settlement because
of fraud, then you have to be very careful. You have
to have sufficient evidence to prove the requirement
of clear and convincing proof to have that public
instrument declared null and void. That is the purpose
of a public instrument requirement.
If it is a mere private document, then if you are the
party to that agreement, it is important that the
agreement has to be identified by identifying the
signatures one by one. Whereas if it is a public
document, all you need to do is to present it in a court
and the court can accept it as it is because there is a
presumption of the regularity of the execution of the
agreement. So the law requires that your EXJ
agreement must be in a public instrument. It cannot
be that you just put it in a private document.
Q: In the case of Teves vs. CA, G.R. No. 109963.
October 13, 199, how did the SC rule here?
A:
From the FT: “The deeds are public documents and
it has been held by this Court that a public
12
document executed with all the legal formalities is
entitled to a presumption of truth as to the recitals
contained therein. In order to overthrow a
certificate of a notary public to the effect that the
grantor executed a certain document and
acknowledged the fact of its execution before him,
mere preponderance of evidence will not suffice.
Rather, the evidence must be so clear, strong and
convincing as to exclude all reasonable dispute as to
the falsity of the certificate. When the evidence is
conflicting, the certificate will be upheld. The
appellate courts ruling that the evidence presented
by plaintiffs-appellants does not constitute the clear,
strong, and convincing evidence necessary to
overcome the positive value of the extrajudicial
settlements executed by the parties, all of which are
public documents, being essentially a finding of fact,
is entitled to great respect by the appellate court
and should not be disturbed on appeal.”
This is the case where the SC had evaluated the
evidence it found that the evidence are lacking in
order to overthrow the weight of the EXJ agreement.
This case gives you the benefits of having document
as public instrument.
Q: Is the public instrument requirement an essential
requisites for the effectivity of the contract between
the parties?
ATTY. T: Under Rule 74, the EXJ settlement is required
to be in a public instrument. That is one of the
requirement. Supposing it is not notarized, therefore
it is not a public instrument, does it render the
agreement between the parties null and void? The
answer is no. The parties can still be bound by the
agreement even if it is not notarized.
Q: You mentioned about oral partition, can there be
an EXJ settlement through oral partition?
S: Yes, Ma’am. Like the case of Hernandez vs. Andal.
Q: Is that allowed? Isn’t the oral partition a violation
of the Statute of Frauds?
If oral partition is allowed, why does Rule 74 require
the partition to be in a public instrument? How do
you reconcile this now?
Supposing you have an oral partition, how do you
divide the properties? How can it result to the
partition of the estate? Supposing one party denies
the oral partition like what happened in the case of
Hernandez vs Arndal, G.R. No. L-273, March 29, 1947,
how then will you effect the partition?
How do you make the party comply with the
agreement when he is denying it or even resisting it?
ATTY. T: If you have an oral partition, you cannot go
to the Registry of Deeds and cause the transfer of the
titles of the properties to your name by reciting what
you have agreed upon orally. Do you think the ROD
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
will entertain you? No. How could the ROD annotate
your oral partition if it was done verbally?
When you register, you need to submit the agreement
with the ROD, tapos tatatakan nila and then it will be
attached in the title before it will be cancelled and a
new one will be issued.
If it is an oral partition, then you have an additional
step to do. File a case. Compel the other party to sign
an agreement. That agreement will be in a public
instrument to comply with Rule 74. On the basis of
your oral agreement, that will be written in your
public EXJ settlement. In other words, just because
you have an oral partition doesn’t mean that you are
exempt from complying with the requirements of
Rule 74.
The public instrument requirement is not a
requirement for the validity of your EXJ settlement. It
is a mere requirement to facilitate the settlement of
the estate but not for the validity of the settlement.
So even if it is an oral partition, it can be a basis for
EXJ settlement but there is an additional step that
you must comply. Compel the parties to the said oral
partition to reduce the agreement into writing and
have it notarized.
The oral partition does not violate the Statute of
Frauds because it does not involve any transfer of
property. In the case of the settlement of the estate,
the transfer of ownership happens at the moment of
death. Therefore, the settlement of the estate is a
mere process where you segregate the shares of the
heirs in the estate and it involves no transfer of
properties. For that reason, it does not run afoul the
Statute of Frauds.
Q: What is the purpose of publication? You said that
the purpose of publication is to protect creditors, how
will they be protected? If it is to protect the creditors,
does it mean that after publication, the creditors can
no longer go after the heirs who executed the EXJ
settlement? Are they barred from going after the
estate? Does it mean that 2 years from the death of
the decedent, the creditors will already be barred to
question the settlement of the estate?
A: The main purpose of publication is merely to give notice
about the fact of extra-judicial settlement.
Q: Does it affect the validity of the settlement? Would
the absence of publication render the EXJ void?
S: No, Ma’am.
Q: How do you differentiate now the purpose of publication
and the purpose of registration?
Q: What happens when you register the EXJ? What
exactly do you do to have it registered?
ATTY. T: You submit the agreement because
the ROD will keep copies of it and they will
13
annotate it in the title. The purpose of
registration is to record your EXJ settlement.
There is that government agency that will
record all EXJ settlements involving the real
properties. You deposit a copy of your EXJ
settlement for recording so that the title of
the properties affected by that will be
annotated.
Q: When you go to the ROD to have your EXJ settlement
recorded and annotated, what is the effect?
ATTY. T: Technically, this is the last stage of
the EXJ settlement.
After the annotation and new titles are
issued, then that is the end. There is no more
estate to speak of because there has already
been a settlement. Pag-nawala na ang assets
kasi nadistribute na, wala ng estate. In EXJ
settlement, registration is the last stage.
Kapag nakuha na ang title, then you can now
say that the estate has been settled.
Very clear ang distinction ng publication and
registration ha. So when you say publication, you do
it in a newspaper in the province where the
properties are located, if the estate is found in Davao
city, any local newspaper circulating here in Davao
city will suffice. The problem is pagdating mo sa ROD,
magsusubmit ka rin ng Affidavit of Publication. They
may require you to show copy of the publication.
Okay lang if the properties are located in Davao city,
or in the same province, what if the properties are
located in Luzon, Visayas and Mindanao? Does it
mean that you have to have several publication in
each province?
A: No. That is the time when you go for publication in a
newspaper of general circulation. You now go to national
newspaper companies.
Q: When you say publication, what is it that you
publish? Do you publish the contents of your EXJ
settlement?
ATTY. T: The publication will only contain the
fact of EXJ settlement. It is purely legal
notice. You don’t need to put there the titles,
the names of the heirs or how they partition
the estate. Again, legal notice lang. No need
for you to state verbatim the contents of your
EXJ settlement. That is precisely why when
you publish, it cannot serve as notice to the
excluded heirs because only the fact of extra-
judicial settlement is reflected there.
Therefore it cannot bar the excluded heirs the
validity or legality of the EXJ settlement.
Pwede pa rin maghabol ang excluded heirs
and even the defrauded creditors.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: What is the nature of an EXJ settlement? Why is
not binding?
ATTY. T: Ex-parte in nature. Sila-sila lang ang
gumawa niyan, without the participation of
the excluded heirs and the creditors. Kaya
wala silang kinalaman dun. That is the
essence of the extra-judicial settlement being
ex-parte because you cannot claim that it is
binding to those who did not participate. It is
only binding on the hiers that signed it.
Q: What is the bond requirement? When do you post
a bond? Does it follow that whenever you have an
EXJ settlement, you must always post a bond? Is it a
mandatory requirement for all cases of EXJ
settlement that you post a bond?
ATTY. T: It is not always that you are required
to file a bond. You only post a bond if there
are personal properties in the estate. If it
consists entirely of real estate, no need to
post a bond. The bond would only be
equivalent to the value of the personal
property. Kung wala kang personal property,
there is no bond requirement.
Q: Cite an example of personal property left by the
decedent.
S: Cars, Ma’am.
Q: Where do you file a bond? If you have personal
properties that requires registration, like cars and
shares of stocks, kailangan mo talaga i-include yan sa
EXJ settlement.
But if you have jewelries or cash not deposited in the
bank, isasali mo pa ba yan? Well you can if you really
want to but lalaki ang tax niyo. So if you can agree
with the other heirs na with respect to the partition
of the said properties, then gawin niyo na. So huwag
niyo na isali kasi lalaki ang costs niyo.
When we talk about cash deposited in a bank, that is
personal property. You cannot get it unless the party
withdrawing presents an EXJ settlement that includes
the cash or time deposit in the bank. Because you
included it, let’s say it amounts to millions, taxable
din yan and that is the same amount that you need to
file as a bond with the Registry of Deeds.
(Atty. Tiu continued talking how difficult it is to withdraw
from banks when the depositor is already dead.)
Q: Why do you need to pay the estate tax?
ATTY. T: Because the Register of Deeds will
not register the extra-judicial settlement
unless you get that certificate authorizing
registration from the BIR. Hindi yan
nakalagay sa Rules of Court but it is provided
for under the Tax Code. You need to present
the CTR. So masakit talaga sa ulo if
14
namatayan kayo and maraming properties.
EXJ settlement pa nga lang to, how much
more if J settlement na?
Q: What is the condition for the bond?
ATTY. T: Here, we have another two year
period. That is the duration of the bond to
answer for any claim that will arise within 2
years form the distribution. Meaning, kapag
tapos na ang settlement niyo. 2 years from
there, then the bond is on standby to answer
for any claim which the creditor might claim
in the future. So it only goes to show that the
creditors who are not involved in the
settlement can still claim even after the 2-
year period. The problem now is if the claim is
too high and the bond is not sufficient. The
remedy of the creditor now is to after the
heirs. So the purpose of the bond is to answer
for any claims or liabilities of the creditors or
heirs two years form distribution.
JAN. 5, 2016 (KBFajardo)
(Last time we stopped at extra-judicial, we finished up to
excluded heirs.)
So there are still matters that we haven’t discussed.
Q: What are the remedies of the excluded heir?
A:
1. File a judicial settlement, after which, there will
be the appointment of an administrator
2. In the case of Llanera, the heirs can file an action
to recover the property based on fraud
3. In the case of, they also have the right to
demand for partition
4. In the case of Arenas, they can ask for
reconveyance of the property
Q: In Arenas v Roces, the property of the estate was
already sold. Can the excluded heirs still go after the
property after it has been sold to third persons?
A: Yes, the heirs can still go after the property because the
petititoners here cannot be considered in good faith, since
the TCT has an annotation that the property is subject to the
provisions of Section 4, Rule 74 of the ROC. So, since they
are not buyers in good faith, the excluded heirs can still file
an action for reconveyance.
Q: So what is the nature of the annotation of Section
4, Rule 74?
A: The purpose of this annotation is to inform the buyer of
the limitation on the part of the seller to dispose of the
property. The presence of the annotation states that there is
a limitation on the part of the seller, and such annotation is
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
constructive notice to the buyer that there is
encumberance over the property?
Q: For how long is that annotation effective?
A: The annotation, as long as the creditor exercises the right
within two years from the settlement and distribution of the
estate.
Q: So are you saying that the excluded heir can no
longer recover the property beyond two years?
A: No maam.
Q: Why not?
A: Because here the proceedings under Rule 74 are ex-parte,
thus the excluded heirs are not bound by it. That provision
xxx refers to the share of an heir who has participated in the
settlement agreement but did not get his rightful share. It
does not apply to an heir who did not participate or has no
knowledge about the settlement agreement.
Q: So in this case, was the sale made within the two
yr period?
A: Yes, maam.
Q: So as far as the buyers are concerned, are they
protected by the 2 yr period? Can they claim, that
beyond the 2yr period, from the annotation of that
encumberance in the title, they can no longer be
pursued for the recovery of the property?
A: No maam because in this case they are not considered
buyers in good faith.
Q: If the excluded heirs are not bound by the
agreement, they are not covered by the provisions of
Section 4 of Rule 74 (the 2 yr period), who are bound
by that? Who are the parties contemplated in this
provision?
A: Those heirs who participated in the probate proceedings.
The participating heirs.
Q: If they participated, how can they be said to have
been deprived of their share?
A: For example if the heirs were defrauded by the other
participating heirs. They have 2 yrs to claim against the other
participating heirs.
Q: So what happens if the claim is not made in 2 yrs?
A: Then their action will now prescribe.
Q: What is the remedy of the defrauded creditor?
A: First is to go after the bond, and go for the settlement.
Q: What kind of settlement?
A: Judicial settlement, maam.
Q: What else are the other remedies of defrauded
creditors?
A: They can also go against the transferee/s of the property.
an Q: How will they xxx (ensure?) that annotation in Rule
74 Section 4 on the title?
A: The annotation serves as a warning to third persons.
Q: So, if it’s a warning?
A: The buyers should go beyond the Torrens title maam,
investigate the true situation between the parties.
Q: So that’s it? That’s the nature of the annotation?
A: Also, the third person who acquires the property can
never be considered as a buyer in good faith. It is like a
lien/encumberance on the property?
Q: Like a lien, or a lien?
A: It is a lien, maam.
Q: What is a lien?
A: It Is an attachment on the property to which the property
will always be subject.
Lien: a legal claim that someone or something has
on the property of another person until a debt has
been paid back. Merriam Webster
Q: What do you mean by attachment?
A: The property should first be subject to the lien before the
buyer/interested person.
Q: What is the effect if the title to the property has a
lien?
A: Aside from the fact that the purchaser cannot be
considered a buyer in good faith; the sale or transfer of the
property can be nullified.
Q: Why will it be nullified? The buyer will still be
BOUND by the lien.
A: If [the lien] is xxxx by the court, then the right by which
the third person acquires his interested will also be nullified.
Q: But that is not because of the lien. What you’re
saying is there is a defect in the title of the seller.
What is the effect if a certain property has a lien on
it?
A: The property will be subjected to the liability of the lien.
ATTY T: Okay, so in other words, whatever
encumbrance there is on the property, then
the buyer will be bound by it.
Now if the property with such an
encumbrance such as the annotation on Sec 4
Rule 74 was sold….then that particular
transaction can be nullified, on the ground
that there was such annotation.
Because in reality the property has a lien or
encumbrance in the form of that annotation.
So if you encounter a title that has been
derived from a title of a deceased person,
naturally you will see there the annotation of
15
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
S4 R74. So it’s up to you if you want to have
that annotation removed. Bcause you can.
You can go the ROD and file a petition for the
removal of that annotation.
But if you don’t [petition to have annotation
removed] and if you sell the property while
it’s still there, you cannot say that that the
property is free from all liens and
encumbrances. Otherwise that would be a
ground to nullify the transaction. Especially if
the condition of the sale is that it should be
free from any lien or encumbrance.
JUDICIAL SETTLEMENT
Let’s go to judicial settlement. What are the kinds of
judicial settlement?
1. Summary judicial settlement
2. Regular settlement proceedings
Q: So in judicial settlement of estate, which court has
jurisdiction?
A: It would depend on the value of the estate maam. So in
the case of the property which is valued at 300k, the court
with jurisdiction is the MTC. If the value exceeds 300k, then
it is the RTC.
ATTY T: For the purpose of determining the
jurisdiction of the court in judicial settlement, we
don’t look at the value of the property. We look at the
value of the estate.
What value are we looking at here, the gross value or
the net value of the estate?
A: The gross value.
So you have to determine the gross value of the
estate, because that will determine which court will
have jurisdiction.
Q: In cases of summary settlement of estate, which
court has jurisdiction over that?
A: The MTC.
Because in order to avail of the summary procedure, the
value of the estate must not exceed 10k pesos.
Q: Gross value or net value?
A: The gross value.
Q: Can you still find an estate with a gross value of
10k nowadays? 
ATTY T: So this is why this provision is so antiquated,
so useless. Can you imagine, ang small claims nga
natin, inincrease na nila from 100k, and wala na yung
litigation, wala nang participation ng lawyers. E eto,
16
10k gross value. IDK why the SC has not given it
attention.
So our discussion on summary judicial settlement is
[mostly academic] since hindi naman magagamit yan.
For purposes of comparison nalang siguro. Anong
pinagkaiba ng summary settlement vis-à-vis regular
settlement. But insofar as the use of this provision in
actual practice, forget about it. Lawyer’s fee pa lang
kulang na kulang ang 10k.
Q: Before we go the comparison, what is the nature
of the jurisdiction of the court insofar as judicial
settlement of the estate is concerned?
A: It is jurisdictional in the sense that if the court decides
over a settlement over which it has no jurisdiction in the first
place- for example if the RTC presides over the settlement of
an estate valued at less than 300k, then the RTC did not
acquire jurisdiction in the first place.
Q: When a court sits as a settlement court, what kind
of jurisdiction does it exercise?
A: Limited jurisdiction.
It means that the court will only decide on the issues as to
the settlement; it cannot go beyond the settlement
proceedings…such as issues pertaining to titles.
Q: So what are the claims covered by the limited
jurisdiction court. What are the issues that the court
may resolve?
A:
1. It can rule on the extrinsic validity and the
testamentary capacity of the testator (if there is a
will) and
2. if there’s no will, the court may rule if the petitioner
is fit to be an administrator of the estate.
3. It can also preside over the determination of the
inventory, and decided whether or not the
properties are conjugal.
4. It can also rule on the issue of ownership however
the ruling of the settlement court is merely
provisional and may be brought up in a separate
proceeding.
Q: Can the court rule on the issue of filiation?
A: Yes, for the purposes of determining the shares of the
heirs.
Q: What about the validity of contracts entered into
by the decedent prior to his death?
A: The settlement cannot rule on that.
The issue of the validity of contracts is extraneous to the
settlement proceedings because it happened prior to the
death of the decedent.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
ATTY T: It depends. In the case of Barretto v xxx
Incorporated, the court actually decided on such
contracts entered into by the deceased.
Q: Let’s go to the issue of ownership. Does the
settlement court have the power to rule on the issue
of ownership?
A: The general rule is that it cannot rule on the issue of
ownership. However, it can issue a ruling; however that
ruling is merely provisional, the ruling is not final, and the
issue may be the subject of a separate proceeding where the
issue may be fully threshed out.
ATTY T: Ok, so you’ve already encountered
that concept of a provisional nature of a
ruling/resolution of a court as far as
questions of ownership are concerned (such
as in cases of forcible entry/unlawful
detainer). The court there can only rule on
the issue of ownership insofar as it affects
the issue of possession. But the ruling is not
definitive, it’s merely provisional. So the same
principle applies here.
The issue of ownership will only be tackled by
court only insofar as it affects the inclusion or
exclusion of the property to the estate is
concerned. The findings of the court [as to
ownership] cannot be final. Therefore, it can
still be raised in a separate case before a
court of regular jurisdiction and raising anew
such issue before the court cannot be barred
by/constitute res judicata.
And because of its provisional nature, such
ruling cannot also be subject to certiorari.
Why? Precisely because in certiorari, there
must not be any plain, speedy or adequate
remedy. If you disagree with the finding of
the settlement court, then you file a separate
case! That is where the issue will be threshed
out. The finding in that case will be properly
subject to a petition for certiorari.
Q: Is there an instance where the parties are
nevertheless bound by the findings of the court
insofar as the issues of ownership? Is there an
exception to the general rule where it is merely
provisional in nature?
A: Yes, in the case of Hernando v CA. In this case the issue
on ownership was not in question because the heirs agreed
that the properties were owned... So in this case the finding
as to ownership is binding upon the heirs.
ATTY T: So in that instance, where the heirs
themselves agree – and all of the parties are
before the settlement court (all the parties
affected are there, and they agree), then the
parties will be bound. It ceases to be
provisional in nature, because they
themselves agree with the resolution of the
17
settlement court re: ownership. There is this
new case, the case of Garcia-Quiazon v Belen
(GR 189121), 2013 case.
What is that case all about?
A: In this case, there was a petition for the issuance of
letters of administration….
Q: What about the issue of jurisdiction?
A: The question as to the jurisdiction of the court … because
the petition was filed before the RTC of Las Pinas. Under the
Rules it should be filed in the RTC where the decedent
resided at the time of his death. The petition was opposed
on the ground that venue was improperly laid. However the
Court here distinguished residence from legal residence:
From the FT: The term "resides" connotes ex vi
termini "actual residence" as distinguished from
"legal residence or domicile." In the application of
venue statutes and rules – Section 1, Rule 73 of the
Revised Rules of Court is of such nature – residence
rather than domicile is the significant factor. In
other words, "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. It signifies
physical presence in a place and actual stay thereat.
Venue for ordinary civil actions and that for special
proceedings have one and the same meaning. As
thus defined, "residence," in the context of venue
provisions, means nothing more than a person’s
actual residence or place of abode, provided he
resides therein with continuity and consistency.
Viewed in light of the foregoing principles,
the Court of Appeals cannot be faulted for affirming
the ruling of the RTC that the venue for the
settlement of the estate of Eliseo was properly laid
in Las Piñas City. It is evident from the records that
during his lifetime, Eliseo resided at No. 26
Everlasting Road, Phase 5, Pilar Village, Las Piñas
City. For this reason, the venue for the settlement
of his estate may be laid in the said city.
Q: Is that was the court said about jurisdiction?
(Wala masyado discussion on jurisdiction sa FT,
mas venue talaga sya.) Although there was this:
Relevant to the foregoing, there is no doubt that
Elise, whose successional rights would be prejudiced
by her father’s marriage to Amelia, may impugn the
existence of such [void] marriage even after the
death of her father. The said marriage may be
questioned directly by filing an action attacking the
validity thereof, or collaterally by raising it as an
issue in a proceeding for the settlement of the
estate of the deceased spouse, such as in the case
at bar.
Q: What are the instances where the issue of
ownership may not be touched upon by the court,
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
even provisionally? So insofar as ownership issues
are concerned, there are several nuances before the
settlement court can rule on that issue. So when is
the court not allowed to entertain the issue of
ownership and give a ruling, even provisionally?
A: If there has already been another case filed raising
ownership as an issue, then the settlement court cannot give
a ruling because a conflict of ruling might arise between the
courts. So the settlement court may not infringe on the
jurisdiction of the other court.
Q: What else? Is that all? When there is already a
pending case involving a question of ownership, is
that the only instance when the settlement court may
not touch upon the ownership issue?
ATTY T: The rule here is when it comes to the
inventory, ALLLLL properties titled in the
name of the deceased; even if it’s involved in
another case in another sala where there is
an issue of ownership, pwede mo ipasok yan.
Lagyan nyo lang ng caveat na “this is subject
to a [case].”
The problem is if the title is not in the name
of the deceased. Then there is a big question
if [the property] should be included in the
inventory. Kasi the title is not in the name of
the deceased. Pano mo yan isasali?
Sasasabihin mo sa korte, “that property is
really owned by the deceased”? So there is an
issue of ownership. But if there is already a
separate case filed and the issue of
ownership is raised there, and that property
is not in the name of the deceased. Then you
have to await the findings of that court in
that proceedings before you can include it in
the inventory. And The court does not have
the authority to entertain the issue of
ownership, even for purposes of
inclusion/exclusion of the inventory because
that is already the subject of a separate case.
A court with limited jurisdiction cannot
overrule the findings of another court
exercising general jurisdiction over the same
subject matter. So you have to distinguish.
Pag naka-pangalan sa deceased, no problem,
you can have it included. Lagyan mo lang ng
annotation, and if there is already a separate
case filed prior to the filing of the settlement
case, then you have to respect that. Now if
there is no separate case, then you can ask
the court for a provisional ruling, provided
that no right of a third party is affected and
all parties are before the jurisdiction of the
settlement court.
But most likely, if the ownership is contested,
and it is no longer in the name of the
deceased, most likely it ivoles the third party
18
other than the heirs; so the court should not
touch on the issue of the ownership. Because
that third party has no business being
included in the settlement proceedings.
In the case of Lachenal v Salas, it involves the issue
of ownership.
Q: Is the court allowed to take cognizance of the
issue of ownership in this case?
A: In this case, there was a contract of lease between the
parties. And the lessee claimed that she bought the fishing
boat before the death of the decedent, and basically she
wanted to exclude that property from the proceedings.
From the FT: 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.
Q: Who was the xxx in this case?
A: The one questioning is the son-in-law of the deceased.
Here the Court said that where it affects the right of third
persons, who here is the decedent’s son-in-law, although he
is the husband of a compulsory heir, he is still considered as
a third person with respect to the estate. The general rule is
that questions of title to the property should be ventilated in
a separate proceeding.
ATTY. T: If there is an issue of ownership
involving a third party, then the settlement
court should not take cognizance of that issue
… because that third party is not within the
jurisdiction of the settlement court. Only the
heirs and interested parties are supposed to
be covered by the jurisdiction. Later on we
will find out kung sino itong mga tao na to na
under sa jurisdiction of the court. But suffice
it to say that the son in law of the deceased,
or the spouse of a compulsory heir is
considered as a STRANGER or third party
insofar as the settlement proceedings are
concerned.
Other than the involvement of a third party, what
other instances where the issue of the ownership may
not be entertained even in a limited/provisional
capacity?
Q: What happened in the case of Baybayan v Aquino
(GR L-42678), how did the issue of ownership arise in
the case?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
A: The Controversy arose after the heirs were ordered to
deliver the property. However the other heirs filed a
complaint for quieting of title and damages. The findings of
the judge as to the ownership of the lot after the hearing do
not justify xxx because the determination of the ownership of
the said lot was made during proceedings under the limited
jurisdiction of the court and is with prejudice xxx proper
party to raise the question in a proper action.
From the FT: It is a well-settled rule in this
jurisdiction, sanctioned and reiterated in a long fine
of decisions, that "when questions arise as to
ownership of property alleged to be a part of the
estate of a deceased person, but claimed by some
other person to be his property, not by virtue of any
right of inheritance from the deceased, but by title
adverse to that of the deceased and his estate, such
questions cannot be determined in the courts of
administrative proceedings. The Court of First
Instance, acting, as a probate court, has no
jurisdiction to adjudicate such contentions, which
must be submitted to the Court of First Instance in
the exercise of its general jurisdiction as a court of
first instance."
ATTY T: Okay so the issue of ownership was by virtue
of a title adverse to the title of the deceased. And that
case has nothing to do with the successional rights of
the parties but xxx in that sense, the settlement court
cannot make a ruling. The resolution of that issue
belongs to a court with general jurisdiction.
So we have discussed that the probate court may rule
on the issue of ownership but only provisionally that
cannot be made final. The exception is when the
parties themselves are all heirs and have agreed to
submit the issue to the court for resolution.
Now supposing that the settlement court resolved the
issue of ownership and the parties nevertheless filed
a separate case involving the issue of ownership.
Same issue of ownership, same properties which are
subject to the settlement case – after the settlement
court have decided. Which court should give way?
A: The probate court should give way.
Because since it is a xxx the probate court is xxx statutory
power, it only has the power to govern over the settlement
of the estate, compared to the power of a court of general
jurisdiction which has the original power to go into [issues
such as] ownership.
ATTY T: Take note that there is an exception.
And the exception is founded on the fact that
the parties involved in the issue are all heirs.
In the case of Romero v CA, April 18 2012 (?).
In that case, it involves the issue of
ownership and there are several properties
involved and the heirs are the ones asserting
ownership over the property. And later on a
separate case of annulment of title filed by
19
one of the heirs was initiated and the SC held
that the jurisdiction belongs to the
settlement court. And the separate case was
barred by the ruling of the probate court. This
is a completely different ruling from the
general rule which we have discussed. So
read this case. Take note of the factual milieu
of the case, who are the parties involved.
What are the factual circumstances, is that
peculiar ruling of the SC when all these
factual circumstances concur? If I’m not
mistaken the ponente of this case is CJ
Sereno.
In other words if the parties in that case are
all heirs then there’s no point to file a
separate case. Everything should be resolved
in the settlement court during the settlement
proceedings.
So you can see the reckoning point now is
“who are the parties involved in the case”? If
they are all heirs then you can ask the court
to settle the issue of ownership. If you file a
separate case, that is barred. Therefore, the
exclusive jurisdiction now over the issue of
ownership belongs to the probate court.
So read all the cases assigned to you under
jurisdiction.
Q: Can the court entertain counterclaim for moral
damages?
A: No maam. That’s in the case of de Borja v de Bora,
where that was the issue. In this case the SC held that the
special proceeding was to settle the intestate estate xxx
Q: Who made the counterclaim for moral damages?
How come the issue of moral damages arose?
A: It was the administrator who filed.
ATTY T: So in summary proceedings, as we
have stated at the start of this course, is
where you establish a basic fact or status.
And in settlement proceedings the facts … so
all personal matters pertaining to any of the
parties in the settlement proceedings cannot
be entertained by the settlement court.
Whatever injury that any of the parties will
have suffered is beyond the limited
jurisdiction of the court.
Precisely in settlement proceedings, it’s a
special proceeding, theirs is no cause of
action. The elements of cause of action is not
present in special proceedings. So any
adjudication of any rights violated is beyond
the jurisdiction of the probate court. It goes
back to the concept of what is a special
proceedings, and the basic facts to be
established in that proceeding. And
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
settlement of estate is just a specie of special
proceedings. It follows the same concept, it
follows the same limitation.
Q: So what are the powers of a settlement court,
what can the settlement court do?
A: According to Section 3, Rule 73 [reads] The settlement
court actually has the power to issue warrants to compel
attendance, and also to issue warrant of apprehension …
Q: So when the court compels the attendance of a
person or a witness, that is actually the power of a
subpoena. It’s the same. “Implement orders and
judgments” that’s the same power of execution. “The
power to imprison…” that is the power of contempt.
You know about contempt already from your Rule 75.
And there is a general clause in Section 3, Rule 73:
“and all other powers granted by law.”
Q: What are these “other powers granted by law?”
Anong power yan? Kili-kili power?  Or is that a
useless phrase that is put there?
A: For example, there is an unruly person there, the court
has the power to restore order.
Q: What else? What are the other powers of the
court?
ATTY T: Actually all of these are subject to the
rule of Civil Procedure. They apply
suppletorily. That’s found under Section 2,
Rule 72 IIRC. So the rule on subpoena,
deposition, are also included and may be used
by the settlement court because they apply
suppletorily. There are only a few rules under
CIVPRO that do not apply, like the rule on
joinder of action.
The only exception to that [to joinder of
action not being applicable in SPECPRO) is
the joinder of settlement proceedings vis-à-
vis acknowledgment of an illegitimate child.
An action for acknowledgement may be
incorporated with settlement proceedings.
Other than that, wala na.
What other powers can you think of? The
power to swear witnesses. All other powers
that a court can do, that is also part.
In fact, there is one power of the settlement
court that cannot be exercised by any other
court. You will find that out later when we go
to regular judicial settlement of the estate of
the deceased.
Let’s go back.
Q: What is the difference between summary
settlement of estate and a regular judicial settlement
of estate? Can you summarize the difference between
the two?
20
1. As to value – in summary, the value does not
exceed 10k while in regular it exceeds 10k pesos.
Q: What else? What is the basic procedure for the
summary settlement of estate?
2. In summary, there is the requirement of xxx
publication. After this xxx the court may proceed to
determine xxx
ATTY T: Okay, so may publication pa. How much is the
cost of publication? Mga 5k. Edi ubos ang gross
estate. I tell you that provision is so useless. Imagine
may requirement pa of publication! How are debts
paid? Who will pay the debts? There is an
administrator. x x x
But take note, it allows for the payment of debts. Can
you imagine the expenses of the heirs, and the gross
estate is only 10k.
(Maam again stresses the futility of the summary settlement
rules, how it was never amended since its inception)
When we come to the compensation of the
administrator you will laugh, 4 pesos a day! So these
rules do not reflect the present times.
January 12, 2016 (MM)
(I leave to you the cases in the previous topic that were not
taken up during the review. You read those cases on your
own. Those cases might come out in the exam. It is your
responsibility to go over those cases.)
We are now at judicial settlement of estate.
We have 2 kinds:
1. The summary
2. The regular
a. Probate
b. Intestate
In all these judicial settlement proceedings what are
common?
1. The venue
2. Jurisdiction
3. Parties in interest
So before we go in details into each of this kind of
judicial settlement, let us take up the common
provisions or the common concept that bind all these.
VENUE
Q: Where will you file the petition for judicial
settlement? What is the rule on venue?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
A: In petition for judicial settlement it depends, if he is an
inhabitant of the Philippines the venue would be in the
province in which he resides at the time of his death,
whereas in case of an inhabitant of a foreign country the
venue would be the place where the estate is located.
Q: What do you mean by inhabitant?
A: Inhabitant means it is the actual or physical residence of
the deceased.
Q: So what is the reckoning point in determining the
venue?
A: The time of death.
Q: What about the time of death?
A: It is the residence of the deceased at the time of his
death.
Q: An American died in Cebu with properties located
in Davao, where will you file the petition for the
settlement of the estate?
A: In Cebu ma’am because he reside in Cebu at the time of
his death because the provision state that.... (inaudible
sorry) – I think he uttered the provision in relation to venue
Q: A Filipino died in NY with properties located in
Quezon City, Zamboanga and Davao, where will you
file the petition for settlement?
A: The place where the estate is located.
Q: Which one?
A: In Quezon City.
Q: There is also one in Zamboanga and in Davao?
A: Also in Zamboanga and in Davao.
Q: So you mean to say you will also file on each
places?
A: No ma’am.
Q: What happens to the properties in other places?
A: The court that will first obtain the judicial settlement of
the estate will exclude other courts.
Q: Supposing a German died in the Philippines, where
do you... (inaudible na pud)?
A: It depends ma’am.
Q: He died here, his dead body, his cadaver is here,
where will you file?
ATTY. T: It depends, if he has no estate in the
Philippines why do we settle, what is there to settle
in the first place.
An alien who died here devoid of any estate, the
relatives had no business to settle the estate. No
point in settling or filing judicial settlement of estate
21
where no estate is found in the Philippines, if we are
talking of an alien or a foreigner in the Philippines.
So residency alone or actual, physical presence alone
in the Philippines at the time of death is not the only
factor to consider, whether or not you are going to
file a judicial settlement of estate.
We have explained at the start of this subject that
there are elements in settlement of estate.
1. Fact of death;
2. Existence of the estate.
Yung FACT OF DEATH pa lang, yung dito namatay,
does that mean that you can automatically file the
judicial settlement of the estate?
Determine first if there is an estate left by the
deceased, especially if you have a foreigner decedent
or an alien decedent.
Q: So what exactly do you mean by residence? What
kind of residence you are talking about here? Is it the
kind of residence under the concept of your election
law, where it is equivalent to domicile? Or there is
intent to return or animus revertendi?
A: Residence it only requires bodily presence. The place
where the deceased resides.
Q: In the case of EUSEBIO vs EUSEBIO, which was
the place of residence here of the deceased, San
Fernando Pamanga or Quezon City? Where did the
deceased died?
A: (inaudible)
Where do you settle the estate, in San Fernando
Pampanga or Quezon City? He used to live in San
Fernando Pampanga before coming to Quezon City
where he died, the question now is where do you
settle his estate in San Fernando Pampanga or
Quezon City?
A: In Pampanga ma’am.
Q: Why? He died in Quezon City, isn’t it that proved
that that is his last place of residence?
A: In this case ma’am said that the deceased merely
transferred to Quezon City for treatment of his deceased but
it does not follow that Quezon City would become his
residence.
Q: But isn’t it that you said awhile ago, that the term
residence simply means physical presence, actual
presence in a certain place, that the fact that he died
in Quezon City isn’t that proof of the decedent’s
physical presence in that pace, such that the
settlement of the estate should be done in Quezon
City?
A: In this case ma’am, he did not intend to reside in Quezon
City.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: Why not, he bought a house in Quezon City, diba
nagpakasal pa nga siya dito in articulo mortis? Why
do you say that he did not intend to stay in Quezon
City?
Isn’t the fact of buying a house a manifestation of his
intent to stay on that place? Why buy a residential
house when you don’t intend to stay there?
A: There is no physical presence in that place ma’am.
ATTY. T: Okay, in other words when you say
residence, it just doesn’t mean actual, physical
presence alone, it would be explicit given the
definition of residence to mere actual, physical
presence.
Q: In this case, what are the conditions, what are the
elements that you have to establish in order for you to say
that the decedent resided in that place?
A: In here the SC held:
1. The capacity to choose and freedom of choice;
2. The physical presence at the place chosen; and
3. The intention to stay therein permanently.
ATTY. T: Okay, take note that in Eusebio case the
word used was “domicile”.
These are the elements to establish a domicile. The
SC used DOMICILE and RESIDENCE interchangeably
in this case. Nevertheless there are conditions
imposed or given by the SC to define what a
DOMICILE or RESIDENCE is.
Q: So among these 3, which one is not present in the
case of Eusebio?
A: The third requisite or intention to stay
permanently.
Q: Why is it not present here?
A: The main purpose for his transfer is for medical purposes
only.
ATTY. T: Here, there are several factors considered by
the SC that showed the lack of intent to permanently
stay in the Quezon City, although he bought a house
and his family, he was still in the province of *** (I
think this is Pampanga, struggle kaayo akong recording,
sorry) personally said before he was hospitalized, he
was not able to live in that the same house and
apparently the reason why he bought a house for his
son to look after him during his illness, mostly for
medical reasons. The crucial pieces of evidence that
were considered by the SC here were the
documentary evidence such as the legal stay of that
property where that piece of evidence reflected
Pampanga and the marriage contract also state that
he was a resident of Pampanga. The resident
certificate was also issued in San Fernando,
Pampanga.
So, I think in this case there may have been an intent
to live in Quezon City, however, the death of the
decedent overtook such as death before he could
actually realize his intent, death had overtaken him.
So, all the documents that were shown reflected San
Fernando Pampanga as his place of residence.
So if you look at it, medyo unfair, because ang sinabi
nga naman sa elements:
1. The capacity to choose and freedom of
choice;
2. The physical presence at the place chosen;
and
3. The intention to stay therein permanently.
So, there was physical presence doon siya namatay.
He intent to stay is subjective, it is all in the mind,
precisely iniwan na niya ang Pampanga, andoon na
siya sa Quezon City, bumili na siya ng bahay,
nagpakasal siya sa Quezon City, all the while
intending to spend the rest of his days with his new
wife in that city. Correct?
It is so unfortunate na lahat ng documentation niya,
eh nakalagay Pampanga, very recent kasi eh, bumili
ka ng bagong bahay, natural anong ilalagay mo na
resident sa deed of sale, siyempre yung unang bahay
mo which is San Fernando Pampanga. In his marriage
contract, hindi pa siya nakatira sa bagong bahay niya
nilagay niya residence niya San Fernando Pampanga.
So medyo so technical ito. Just like what I said the
INTENT IS VERY SUBJECTIVE, it just so happen na
lahat ng documentation na na produce all reflected
San Fernando Pampanga. But you have here the 3
therein elements: The has to be capacity to choose and
freedom of choice; physical presence at the place
chosen; and intention to stay therein permanently.
So yung third element is subjective, therefore there
has to be some clue to show what was the intent in
the mind of the decedent immediately prior to his
death. So wala lang nakaproduce ng dokumento
reflecting Quezon City as his latest place residence.
Q: in the case of Fule vs Court of Appeals, where
should the settlement proceeding be filed?
A: In the case of Fule, it was filed in the Court of First
Instance of Laguna.
Q: What were the proofs to show the residence of the
deceased here?
A: The proof was the death certificate presented by Virginia
G. Fule herself before the Calamba court and in other
papers, the last residence of Amado G. Garcia was at 11
Carmel Avenue, Carmel Subdivision, Quezon City.
From the case: During the hearing of the various incidents of
this case (Sp. Proc. 27-C) before Judge Malvar, 2 Virginia G.
Fule presented the death certificate of Amado G. Garcia
22
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
showing that his residence at the time of his death was
Quezon City. On her part, Preciosa B. Garcia presented the
residence certificate of the decedent for 1973 showing that
three months before his death his residence was in Quezon
City. Virginia G. Fule also testified that Amado G. Garcia was
residing in Calamba, Laguna at the time of his death, and
that he was a delegate to the 1971 Constitutional Convention
for the first district of Laguna.
Q: Where should the settlement be made?
A: In this case the court held that the settlement proceeding
should be held at Quezon City. And the Court held that the
term “residence” connotes actual residence as distinguished
from legal residence or domicile.
From the case: SC lay down the doctrinal rule that the term
"resides" connotes ex vi termini "actual residence" as
distinguished from "legal residence or domicile." This term
"resides," like the terms "residing" and "residence," is elastic
and should be interpreted in the light of the object or
purpose of the statute or rule in which it is employed. In the
application of venue statutes and rules — Section 1, Rule 73
of the Revised Rules of Court is of such nature — residence
rather than domicile is the significant factor. Even where the
statute uses the word "domicile" still it is construed as
meaning residence and not domicile in the technical sense.
Some cases make a distinction between the terms
"residence" and "domicile" but as generally used in statutes
fixing venue, the terms are synonymous, and convey the
same meaning as the term "inhabitant." In other words,
"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. It signifies physical presence in a place and actual
stay thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or
domicile. Residence simply requires bodily presence as an
inhabitant in a given place, while domicile requires bodily
presence in that place and also an intention to make it one's
domicile. No particular length of time of residence is required
though; however, the residence must be more than
temporary.
ATTY. T: So here, there was an effort to bear away of
the use of the term residence or domicile. RESIDENCE
means ACTUAL RESIDENCE.
Q: When we say actual residence what does that
mean?
A: Actual residence means bodily presence of the inhabitant
of that place. There should be the personal, actual or
physical habitation of a person.
ATTY. T: So, physical, actual or personal habitation in
that place, that is the meaning of residence according
to the SC.
Q: In the CASE OF JAO, how did the SC define
residence? Where is the settlement here? Where
should it be made?
23
A: The case of Jao defines residence as physical, actual or
personal habitation, however, the stay must not be
temporary.
It is the stay of the decedent must be with continuity and
consistency.
Q: So where is the place here for the settlement of
the estate? What is the key in determining such stay?
A: The place of residence here ma’am as stated is in Quezon
City, however it was opposed alleging that the last place of
residence was in Angeles Pampanga. They have to transfer
to Quezon City, solely for the purpose of obtaining medical
treatment and hospitalization.
However, in this case, it was proven that the deceased
stayed at Quezon City and as stated in the death certificate
the deceased died in Quezon City. The Court held that the
settlement should be in Quezon City.
From the case: Rodolfo moved for the dismissal of the
petition on the ground of improper venue. He argued that
the deceased spouses did not reside in Quezon City either
during their lifetime or at the time of their deaths. The
decedent’s actual residence was in Angeles City, Pampanga,
where his late mother used to run and operate a bakery. As
the health of his parents deteriorated due to old age, they
stayed in Rodolfo’s residence at 61 Scout Gandia Street,
Quezon City, solely for the purpose of obtaining medical
treatment and hospitalization. Rodolfo submitted
documentary evidence previously executed by the decedents,
consisting of income tax returns, voter’s affidavits,
statements of assets and liabilities, real estate tax payments,
motor vehicle registration and passports, all indicating that
their permanent residence was in Angeles City, Pampanga.
In his opposition, Perico countered that their deceased
parents actually resided in Rodolfo’s house in Quezon City at
the time of their deaths. As a matter of fact, it was
conclusively declared in their death certificates that their last
residence before they died was at 61 Scout Gandia Street,
Quezon City. Rodolfo himself even supplied the entry
appearing on the death certificate of their mother, Andrea,
and affixed his own signature on the said document.
ATTY. T: It doesn’t mean that mere physical presence
in the place already determines residence. Take into
account the cases of FULE and JAO, we have to
consider not only actual, physical presence but also
continuous and consistent stay in that place as
among the factors to determine whether that place is
the last place of residence of the deceased where you
settle the estate.
Among the 3 cases that were enumerated, you have
EUSEBIO case, rather in the cases of FULE and JAO,
the place of death or place of residence stated in the
death certificate is given weight.
So when you fill out the death certificate, what you
state there as the place of residence of the deceased
it would be taken into account because that can be
the basis of determining where to settle the estate.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
So even if you are brief taken (inaudible, if “brief taken”
ba ni ), if one of a loved one’s passed away, you have
to consider that what you have put in the death
certificate is not immaterial or insignificant do not
just spell it out mindlessly, you have to take into
account what are the implications of what you put in
the death certificate.
In the 2 cases FULE and JAO, the SC considered the
PLACE OF RESIDENCE of the deceased in determining
the VENUE for the settlement of the estate of the
deceased.
Q: Given that residence is actual, physical, personal
habitation meaning with continuity and consistency,
how does hat differ with the definition of residence
under election law, are they the same?
A: In the case of San Luis vs. San Luis:
From the fulltext: “It is incorrect for petitioners to argue that
“residence,” for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is synonymous with
“domicile.” The rulings in Nuval and Romualdez are
inapplicable to the instant case because they involve election
cases. Needless to say, there is a distinction between
“residence” for purposes of election laws and “residence” for
purposes of fixing the venue of actions.
“In election cases, “residence” and “domicile” are treated as
synonymous terms, that is, the fixed permanent residence to
which when absent, one has the intention of returning.
“However, for purposes of fixing venue under the Rules of
Court, the “residence” of a person is his personal, actual or
physical habitation, or actual residence or place of abode,
which may not necessarily be his legal residence or domicile
provided he resides therein with continuity and consistency.
Hence, it is possible that a person may have his residence in
one place and domicile in another.”
ATTY. T: So the meaning of residence under election
law that is very much debated now because of the
case of Grace Poe, baliktad naman ngayon, iba naman
ang definition nila ng residence sa kampo ni Poe,
actual, physical residence/presence ang kanilang ina-
argue.
Whereas under election law it is in the concept of
domicile, intent to return, etc. It does not matter that
your citizenship whether you have animus revertendi,
whenever you are absent from a certain place,
whenever you have come back then you have been
considered as you residence under election law.
There is a distinction and you won’t be able to make
that distinction.
Q: If there is a question on issues of venue, can that
be ventilated in a petition for certiorari? When there
is a motion to dismiss on the ground of improper
venue and the motion is denied, can you go to the CA
to question the ruling via certiorari?
24
A: No ma’am, the rules provide that the jurisdiction assumed
by the court in the person of deceased person as of the place
of residence of a decedent ... shall not be contested...
(inaudible ang tubag sa akong recordings)
ATTY. T: The issues on propriety of a venue will only
be entertained by the on appeal (“on appeal”? not sure
of what I heard) cannot be made in a petition by
certiorari.
JURISDICTION
Q: You have here a case of a Filipino, who died in the
US, he had several properties in the Philippines in
different cities, you have Manila, Cebu, Davao and
Cagayan de Oro, where will you file the settlement of
the estate?
A: In any of the court where the decedent had property, the
first court who acquired jurisdiction.
Q: How about if he also left properties in a foreign
country? You have a Filipino who died in New York
leaving properties in New York, Manila, Cebu, Davao
and Cagayan de Oro, where do you settle the estate?
A: In the place of any of the properties in the Philippines, the
property in the foreign country cannot be included
(inaudible)
Q: Are you going to file simultaneous petitions in any
of these cities all over the Philippines?
A: No ma’am, if you file a petition in any of the court, the
court who first acquire jurisdiction shall exclude all other
courts.
Q: What will happen now to the other properties in
the other cities? How can the court in one city acquire
jurisdiction over those properties?
A: The other properties are still covered by the court who
first acquired jurisdiction.
Q: But those are outside the territorial jurisdiction of
the court?
A: The venue here... it only pertain to the venue and not the
jurisdiction of that matter. So the court has jurisdiction over
the subject matter. As to venue ma’am it does not
necessarily mean that that court has no jurisdiction...
Q: Is that the reason?
A: It is the estate that is being settled and not the individual
properties of the deceased.
ATTY. T: The estate of the deceased covers all the
properties of the deceased. So each court in every
city where he left properties has jurisdiction over the
estate and not just limited to a particular property of
the estate in that particular city but as to the entire
estate. So when you settle the estate of a deceased
person, where the properties even if located in
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
different cities, THE SETTLEMENT IS ONLY ONE
PROCEEDING.
You cannot have several settlement proceedings for
each property located in different locality because all
these properties belong to ONE ESTATE, there is
ONLY ONE PROCEEDING, any court that first acquires
jurisdiction over that estate will exclude all the other
courts. That is the reason behind that provision in
Rule 73, “exclusion of the other courts”.
The settlement court, practically all courts where the
properties of the estate are located can have
jurisdiction over the estate because the estate is
scattered. But the RULE is once one of these courts
obtain jurisdiction over one property or over the
estate particularly to the property belonging to the
estate is located then it covers the entire estate.
There is only one proceeding, the other courts are
automatically excluded. That is the “EXCLUSIONARY
RULE” that is founded under RULE 73.
It is a QUESTION OF JURISDICTION, not venue and
the basis of the jurisdiction of the court is that one
property of the estate is within its territorial
jurisdiction. That is why it can acquire jurisdiction not
just over this one particular property but the entire
estate as well.
The only conflict that was anticipated here is that the
conflicting jurisdiction of the different courts would
acquire by virtue of the location of the different
properties of the estate and that is why you have that
rule there that once one court acquires jurisdiction
over the estate, the first one that acquires it will
exclude the others automatically.
So this is NOT JUST A MATTER OF VENUE, because a
court in Sulu for instance has no course of taking
cognizance of the settlement of the estate that the
property of which was not even found there, not a
single property is found there, wala talagang
jurisdiction, it cannot be.
So the rule here is that as long as one property of the
estate is found on that particular territorial
jurisdiction of the court, pwede siya mag-assume ng
jurisdiction. And once that jurisdiction is assumed
automatically excluded all the other courts that may
acquire or assume jurisdiction by virtue of the
location of the property of the estate found in their
respective territorial jurisdiction.
So it is not just a question of venue, MORE
IMPORTANTLY IT IS ALSO A QUESTION OF
JURISDICTION. If there is no property found in that
territorial jurisdiction of the court belonging to the
estate that court has no business settling the estate
of the deceased, absolutely not at all.
But take note, that rule of exclusionary would be
applied kapag non-resident. Non-resident yung
25
deceased, meaning namatay siya abroad. Kasi
pagnamatay siya in the Philippines, kahit na wala
siyang estate sa lugar na ito, lahat ng properties niya
scattered all the other places except on the place
where he died, then kung saan siya resident at the
time of death doon i-se-settle, kahit not a single piece
of his estate is located.
Magka-iba, the exclusionary provision if Rule 73 will
only apply kapag non-resident, the decedent did not
die in the Philippines.
So it is not just a question of venue kung saan i-fi-file
ang kaso, but ALSO A QUESTION OF JURISDICTION
because it involves authority of the court over a
certain property belonging to the estate.
Kaya pagnamatay siya ditto, properties niya sa ibang
mga lugar doon i-settle kung saan siya namatay,
kung saan yung residence niya. Different rule kapag
resident decedent and namatay.
PARTIES-IN-INTEREST
Q: Who are the parties-in-interest in a judicial
settlement of the estate?
A: Section 1 Rule 76 provides:
Section 1. Who may petition for the allowance of will. 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 his will.
ATTY. T: So that presupposes a probate proceeding,
that means there is a will. When the decedent died he
left a will. That is why you are taking of legacy,
devise, testator.
Q: What about if there is no will, who are the parties
in interest to the settlement proceeding?
A: Any interested person may be a party.
Q: Who are those persons who may be interested?
Who are those person with interest?
A: In the case of ACAIN v CA, the SC defined that an
interested party is one who would be benefited by the estate
such as an heir or one who has a claim against the estate
like a creditor.
ATTY. T.: So those who have something at stake by
the settlement of the estate. Sino yun? The one who
can benefit of it or has a claim against the estate. In
other words yung makikinabang pagnasettle yung
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
estate, that is the person who is a party in interest or
who can be an interested party in that proceeding.
Q: What kind of interest are we talking of here?
A: In the case of San Luis vs. San Luis.
The SC held that the interest must be material and direct,
and not merely indirect or contingent.
Q: What do you mean by direct and material?
A: That such person holds or would be benefited or has a
claim against the estate and not merely contingent or an
indirect claim against the estate of the deceased person.
ATTY. T: So when you say direct and material interest
it means you are directly benefited, it is not through a
different person not based on the happening of
certain event.
So wala ng kondisyones pa talagang you are speaking
enforce claim against the estate, like in the case of a
creditor, the creditor has a direct and material
interest against the estate, therefore a creditor can
be a party in interest in the settlement proceeding.
The estate can be made directly liable to the creditor.
Q: In the case of San Luis vs. San Luis, who was the
petitioner here?
A: The petitioner in this case Edgar San Luis and Rodolfo San
Luis.
From the facts of the case: The instant case involves the
settlement of the estate of Felicisimo T. San Luis
(Felicisimo), who was the former governor of the Province
of Laguna. During his lifetime, Felicisimo contracted three
marriages. His first marriage was with Virginia Sulit on
March 17, 1942 out of which were born six children, namely:
Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August
11, 1963, Virginia predeceased Felicisimo. Five years later,
on May 1, 1968, Felicisimo married Merry Lee Corwin, with
whom he had a son, Tobias. However, on October 15, 1971,
Merry Lee, an American citizen, filed a Complaint for Divorce
before the Family Court of the First Circuit, State of Hawaii,
United States of America (U.S.A.), which issued a Decree
Granting Absolute Divorce and Awarding Child Custody on
December 14, 1973. On June 20, 1974, Felicisimo married
respondent Felicidad San Luis, then surnamed Sagalongos,
before Rev. Fr. William Meyer, Minister of the United
Presbyterian at Wilshire Boulevard, Los Angeles, California,
U.S.A. He had no children with respondent but lived with her
for 18 years from the time of their marriage up to his death
on December 18, 1992.
Q: In what capacity did they petition in the
settlement of the estate?
A: Rodolfo San Luis, one of the children of Felicisimo
(deceased) by his first marriage.
Q: So, in this case who are considered as parties in
interest?
26
A: In this case ma’am the SC defined that an “interested
person” has been defined as one who would be benefited by
the estate, such as an heir, or one who has a claim against
the estate, such as a creditor.
Q: Who applied for the letters of administration in
this case?
A: Respondent Felicidad San Luis (third wife) on December
17, 1993 filed a petition for letters of administration before
the Regional Trial Court of Makati City, docketed as SP. Proc.
No. M-3708 which was raffled to Branch 146 thereof.
Q: Is she a party in interest?
A: In this case Felicidad San Luis is considered as a party in
interest.
Q: Was the marriage valid?
A: Felicidad was asked or ordered by the SC to submit proof
that the marriage of Felicisimo to Merry Lee Corwin was...
(changed her answer) There was a SC decree by the family
court of Hawaii but the SC held that Felicidad here would still
qualify as an interested person who has a direct interest over
the estate of Felicisimo by virtue of cohabitation granting or
in this case wanting proof of divorce decree of Felicisimo’s
marriage to Merry Lee Corwin.
From the case: she presented the decree of absolute divorce
issued by the Family Court of the First Circuit, State of
Hawaii to prove that the marriage of Felicisimo to Merry Lee
had already been dissolved. Thus, she claimed that
Felicisimo had the legal capacity to marry her by virtue of
paragraph 2, Article 26 of the Family Code and the doctrine
laid down in Van Dorn v. Romillo, Jr.
Q: So what is the basis for the interest of the second
wife here (Third wife si Felicidad! I think na confuse lang
sila), is it the fact that she is the wife, when the
validity of marriage is put on issue? Where does the
interest of this person come from? Where do you base
it?
A: Given such circumstance ma’am, the SC cited Article 144
of the Civil Code which provides, this provision governs the
property relations between parties who live together as
husband and wife without the benefit of marriage, or their
marriage is void from the beginning. It provides that the
property acquired by either or both of them through their
work or industry or their wages and salaries shall be
governed by the rules on co-ownership. In a co-ownership,
it is not necessary that the property be acquired through
their joint labor, efforts and industry. Any property acquired
during the union is prima facie presumed to have been
obtained through their joint efforts. Hence, the portions
belonging to the co-owners shall be presumed equal, unless
the contrary is proven.
If the validity of their marriage would be questioned then the
interest of Felicidad in this case would be such a co-owner.
ATTY. T: But in this case they did not call her as a
wife, her status as a wife is still in issue, does that
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
make her claim contingent of the determination of
the validity of her marriage to the deceased?
The SC said NO, under the law even if the marriage is
void, she is still a party in interest because she has a
claim against the estate as a co-owner of the
properties she acquired or she and the deceased
acquired together by living as husband and wife or
while they cohabitate as husband and wife. The law
itself is pervasive over direct or material interest in
the estate.
So that is the least that can be considered as basis of
the right because if that is true that there was a valid
divorce prior to her marriage then all the more that
she has better right to petition for letters of
administration at the settlement court.
ERGO, are mistresses or common law spouses do they
have legal standing? Are they parties in interest in
the settlement proceeding of the deceased
paramour?
This is the case and they said here YES by virtue of
Article 148 of the Family Code, not as spouse, not as a
common law spouse but as a co-owner. So that is the
basis.
So pagsinabing you have here a court room drama or
a movie, the legal wife and the mistress nag-aagawan
dahil namatay na ang kanilang common lover,
nagsulputan at nagclaim ng kung ano ano mana diyan
at ang sabi ni legal wife, “ako ang legal wife,” pwede
ba niyang e-echapwera si mistress? NO, technically
party in interest si mistress, party-in-interest si
common law spouse.
For as long as you can prove that there are properties
acquired during the cohabitation, then may karapatan
ka as a co-owner over the properties of the deceased.
You have a DIRECT and MATERIAL INTEREST to
participate in the settlement of the estate of the
deceased person.
So hindi lang ito limited sa mga legitimate heirs, hindi
lang ito limited sa surviving spouse but even the
common law spouses and the mistresses pwede, may
standing sila by virtue of that provision of the family
code they are considered co-owners over the
properties acquired by the deceased during their
cohabitation.
So this is a special proceeding, this is what I want
you to understand. In a special proceeding you
merely establish the right or a status. Therefore there
are no causes of action involve here.
So kung magpresent kayo ng estate, what do you
need to establish? The fact of death, the existence of
the estate, what are the claims against the estate,
how do you settle it, what do you make of the estate
(“what do you make of the estate”, unsure medyo inaudible) ,
27
who are entitled to the residue of the estate, so
kasama yun sa determination.
So magma-matter ngayon kung sino yung mga
parties na pwede magparticipate here. So your law on
succession will also matter, who are entitled to
inherit from the deceased.
So it is also important that you are very familiar with
your law on succession when you take up special
proceedings because you determine if that person can
participate. One person who can participate would be
the heir, pag hindi siya heir wala siyang karapatan na
makigulo, wala siyang standing, not a party in
interest, not even a creditor hindi din pwede.
So not just anybody can participate in the settlement
proceeding, you must be able to show that you are a
party in interest and the only way to do that is by
showing that is that you have direct and material
interest in the estate. When you say direct and
material interest you stand to be benefited from the
estate or you have a claim against it, like in the case
of a creditor.
Q: Sino ang magbenefit sa estate?
A: The heirs.
ATTY. T: Siyempre pagnaayos na yan, ididivide na yan,
the heirs will benefit, kasi mapupunta na kanila ang
kanilang right or shares.
CONTINGENT CLAIMANT –
Q: How about a contingent claimant? Is a contingent
claimant a party in interest in a settlement
proceeding? What about a contingent claimant in
Hilado vs. CA?
A: In the case of a creditor may be a contingent claimant of
the deceased person. (basi mali ni na answer )
Q: How can a creditor be a contingent claimant? It is
either you are a creditor or not a creditor, if you are a
creditor you can participate because you have a claim
against the estate you stand to be benefited.
A:
From the case: Anybody with a contingent claim based on a
pending action for quasi-delict against a decedent may be
reasonably concerned that by the time judgment is rendered
in their favor, the estate of the decedent would have already
been distributed, or diminished to the extent that the
judgment could no longer be enforced against it.
Q: Is that what a contingent claimant is? Is that how
a contingent claimant is defined? What do you mean
by contingent?
A: A contingent claim can be an inchoate interest.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
A case is still pending against the estate of the decedent.
There are 3 issues to be resolve before such claim may be
had against the estate.
ATTY. T: A contingent claimant is for one whose claim
is dependent upon the happening of certain event,
conditional, has a condition, the happening of an
event.
Q: In the case of Hilado vs. CA what made the
claimant here a contingent one?
A: In this case, there was still a civil action pending against
the decedent and then the resolution of such civil action
would be needed or would tantamount to such absolute
claim of such creditor.
Q: What was the claim all about? Why did you say
that the claimant is a creditor in the first place? Is it a
collection of sum of money?
A: In this case ma’am, Roberto S. Benedicto died intestate
on 15 May 2000. He was survived by his wife, private
respondent Julita Campos Benedicto (administratrix
Benedicto), and his only daughter, Francisca Benedicto-
Paulino.
Q: The question is what was the case all about that
made the claimant contingent?
A: In this case ma’am, in the list of liability attached to the
inventory that private responded here included as among the
liabilities to pending case being litigated in court.
Q: The question was, what kind of cases were those
that were subject of contingent claim?
A: The first, Civil Case No. 95-9137, was then pending with
the Regional Trial Court (RTC) of Bacolod City, Branch 44,
with petitioner Alfredo Hilado as one of the plaintiffs therein.
The second, Civil Case No. 11178, was then pending with the
RTC of Bacolod City, Branch 44, with petitioners Lopez Sugar
Corporation and First Farmers Holding Corporation as one of
the plaintiffs therein.
Q: What kind of cases were those? We already know
that the claimant is a party to that claim, what cases
were those? The criminal case, the civil case?
A: The civil cases.
Q: Civil cases for what?
ATTY. T: That is the problem, when I go into specific details
of the cases you cannot answer because you did not read
the case, you just rely on the notes of your seatmates. How
do you expect to get the answer right? We did not meet the
entire December what did you do, how come you couldn’t
answer simple questions, details about the cases assigned to
you months ago. (nagstrong si ma’am).
A: The cases there ma’am were based on torts, as they arose
from his actions in connection with Philsucom, Nasutra and
Traders Royal Bank.
28
From the case: However, it appears that the claims against
Benedicto were based on tort, as they arose from his actions
in connection with Philsucom, Nasutra and Traders Royal
Bank.
Q: What made those claim contingent?
A:
From the case: civil actions for tort or quasi-delict do not fall
within the class of claims to be filed under the notice to
creditors required under Rule 86. These actions, being as
they are civil, survive the death of the decedent and may be
commenced against the administrator pursuant to Section 1,
Rule 87. Indeed, the records indicate that the intestate
estate of Benedicto, as represented by its administrator, was
successfully impleaded in Civil Case No. 11178, whereas the
other civil case was already pending review before this Court
at the time of Benedicto’s death.
Q: Is a contingent claimant an interested person? Is
Hilado here an interested person?
A: A contingent claimant ma’am is an interested person, the
SC said that the interest of Hilado may be inchoate interests,
but they are viable interests nonetheless. (She was asked
ARE YOU SURE?) Sorry ma’am, no ma’am, they are not
considered as interested person.
From the case: “While there is no general right to intervene
on the part of the petitioners, they may be allowed to seek
certain prayers or reliefs from the intestate court not
explicitly provided for under the Rules, if the prayer or relief
sought is necessary to protect their interest in the estate,
and there is no other modality under the Rules by which such
interests can be protected. It is under this standard that we
assess the three prayers sought by petitioners.”
Q: What did Hilado asked from the settlement court?
A: Hilado here asked for specific reliefs:
From the case: ‘First, they prayed that they be henceforth
furnished “copies of all processes and orders issued” by the
intestate court as well as the pleadings filed by administratrix
Benedicto with the said court. Second, they prayed that the
intestate court set a deadline for the submission by
administratrix Benedicto to submit a verified and complete
inventory of the estate, and upon submission thereof, order
the inheritance tax appraisers of the Bureau of Internal
Revenue to assist in the appraisal of the fair market value of
the same. Third, petitioners moved that the intestate court
set a deadline for the submission by the administrator of her
verified annual account, and, upon submission thereof, set
the date for her examination under oath with respect
thereto, with due notice to them and other parties interested
in the collation, preservation and disposition of the estate.’
Q: So in what capacity where these reliefs he
demand?
A: In a capacity of an intervenor.
Q: Can he intervene?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
A: No ma’am, the SC held here that the creditors cannot
intervene in the civil proceedings however they are provided
remedy to protect their rights.
Q: Creditors cannot intervene?
ATTY. T: Creditors can intervene, precisely they are
parties in interest, what did I tell you awhile ago, not
anybody can just intervene or interfere in the
settlement proceeding, you have to have interest in
the proceeding for you to have legal standing.
A creditor has a claim against the estate, the
creditors can intervene.
But in the case of HILADO there is a difference.
Hilado tries to assert himself as a creditor, problem is,
the basis of his claim is NOT BASED ON CONTRACT, it
is BASED ON TORT, to aggravate the matter he
already filed a separate case against the deceased
during the lifetime of the deceased, meaning ongoing
na ang litigation nila.
What does the rule say?
If the claim is based on TORT, it SURVIVED the death
of the decedent, it can PROCEED INDEPENDENTLY. It
did not abated the case against the deceased, it is not
abated by the death of the deceased, it continuous.
The proceeding in that separate case would continue
to its conclusion.
Therefore, Hilado has no business interfering or
intervening in the settlement case.
Why? Because he has not yet proven that he has an
interest in the estate, contingent pa lang on the
outcome of that separate case that is already
pending. He has to await the outcome of that case
before he can claim that he is a creditor.
What is the basis of his being a creditor in that case?
The Judgment Award.
The judgment award will now be the basis of his
claim as a creditor against the estate. Pag wala pa
yung judgment award wala siyang panghahawakan
because the cause of action is based on torts and not
based on contract.
If it is based on contract, express or implied pwede
siya as a creditor, he can participate, he can intervene
as a creditor, because he is a party in interest, he has
direct and material interest to the proceeding of the
settlement of the estate.
So you differentiate now, if you are a claimant, what
kind of claim do you have:
- Is it based on contract, implied or
express, OR;
- Is it based on tort?
If it is based on tort, then you are a contingent
claimant, because you need to have a judgment in
your favor in a court action for you to be considered
29
as a full pledge creditor of the estate. And only then
can you legal standing for you to intervene in that
settlement proceeding, pag wala ka noon, wag ka na
mag-aksaya ng panahon na magtry to intervene,
because intervention is only allowed for interested
parties.
That is why Hilado’s attempt to intervene in this case
was denied, cannot be. Contingent claimant lang siya,
contingent pa yung claim niya sa outcome ng kaso
that was filed during the lifetime of the deceased,
they have to await the outcome of that case and not
only the outcome but a favorable outcome. There has
to be a favourable decision so he can have a standing
later on to claim the satisfaction of the judgment
award that was made in his favor.
So that is the SIGNIFICANCE OF THE CASE OF
HILADO. Distinguished what is the BASIS OF YOUR
CLAIM, if it is CONTRACT pwede ka mag-intervene as
creditor, if it is TORT get a judgment, you are
considered as a contingent claimant.
Q: Now, as to the other reliefs that he was asking,
inventory, submission of report, accounting etc., does
the contingent claimant has that right?
A:
From the case: “The Rules on Special Proceedings do not
provide a creditor or any person interested in the estate, the
right to participate in every aspect of the testate or intestate
proceedings, but instead provides for specific instances when
such persons may accordingly act in those proceedings, we
deem that while there is no general right to intervene on the
part of the petitioners, they may be allowed to seek certain
prayers or reliefs from the intestate court not explicitly
provided for under the Rules, if the prayer or relief sought is
necessary to protect their interest in the estate, and there is
no other modality under the Rules by which such interests
can be protected.”
ATTY. T: Okay, in the case of Hilado here, contingent
claimant siya, not already established and before he
can demand and intervene in the settlement
proceeding he must have direct and material interest,
for the moment wala pa kasi hindi pa tapos ang kaso,
that is still pending case that he filed based on tort.
Q: He asked the settlement court that he be furnished
copy of all competent and orders issued by the
intestate court as well as pleading filed by the
administratrix, was that granted?
A: No ma’am. Because in this case the SC said here that
petitioners’ interests remain inchoate and contingent
counterbalances their ability to participate in the intestate
proceedings.
Q: How about sa pangalawang relief na hiningi niya,
to require the intestate court set a deadline for the
submission by administratrix Benedicto to submit a
verified and complete inventory of the estate, and
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
upon submission thereof, order the inheritance tax
appraisers of the BIR to assist in the appraisal of the
fair market value of the same, can the contingent
claimant demand for such relief?
A: No ma’am, because in this case:
From the case: “Allowing creditors, contingent or otherwise,
access to the records of the intestate proceedings is an
eminently preferable precedent than mandating the service
of court processes and pleadings upon them. In either case,
the interest of the creditor in seeing to it that the assets are
being preserved and disposed of in accordance with the rules
will be duly satisfied. Acknowledging their right to access the
records, rather than entitling them to the service of every
court order or pleading no matter how relevant to their
individual claim, will be less cumbersome on the intestate
court, the administrator and the heirs of the decedent, while
providing a viable means by which the interests of the
creditors in the estate are preserved.”
Q: How about the remedy or the demand requiring
the intestate court set a deadline for the submission
by the administrator of her verified annual account,
and, upon submission thereof, set the date for her
examination under oath with respect thereto, with
due notice to them and other parties interested in the
collation, preservation and disposition of the estate,
was that granted?
A: No ma’am, because the court held that:
From the case: “To impose a precedent that would mandate
the service of all court processes and pleadings to anybody
posing a claim to the estate, much less contingent claims,
would unduly complicate and burden the intestate
proceedings, and would ultimately offend the guiding
principle of speedy and orderly disposition of cases.”
Q: So, are you saying that as a contingent claimant
Hilado here has no right at all that can be protected
in a settlement case?
A: In this case ma’am Hilado as a contingent claimant has a
right but such right is still contingent or dependent on the
fact or the resolution of the civil cases pending.
Q: So what is now the right? What particular relief
can a contingent claimant have in estate proceeding?
Because a contingent claimant can later on be a party
in interest, once the contingent fee has been resolved
in favor of the claimant and by then wala na ang
estate, paano pa niya ma-e-enforce ang right niya
kung dissipated na ang asset ng estate, distributed na
to all the heirs, paano pa ang kanyang claim? Are you
saying then that a contingent claimant has no right at
all that can be protected while settlement proceeding
is ongoing and his claim has not yet been resolved in
his favor?
A: No ma’am, the SC made it here:
From the case: “That while there is no general right to
intervene on the part of the petitioners, they may be allowed
30
to seek certain prayers or reliefs from the intestate court not
explicitly provided for under the Rules, if the prayer or relief
sought is necessary to protect their interest in the estate,
and there is no other modality under the Rules by which such
interests can be protected.”
Q: How would you now protect the interest of the
contingent claimant?
At the moment they may not be allowed to intervene,
but the moment they become full pledge parties in
interest, what is there for them if the estate is
already been distributed and they are left with the
empty judgment, isn’t it that is an injustice on the
part of the contingent claimant, what can we do
while the estate proceeding is ongoing that can
protect their interest as a contingent claimant?
What did the SC say in the case of Hilado vs. CA?
A: The SC explained that they have the right to be apprised
of developments in the intestate proceeding and Allowing
creditors, contingent or otherwise, access to the records of
the intestate proceedings is an eminently preferable
precedent than mandating the service of court processes and
pleadings upon them.
In either case, the interest of the creditor in seeing to it that
the assets are being preserved and disposed of in
accordance with the rules will be duly satisfied.
Acknowledging their right to access the records, rather than
entitling them to the service of every court order or pleading
no matter how relevant to their individual claim, will be less
cumbersome on the intestate court, the administrator and
the heirs of the decedent, while providing a viable means by
which the interests of the creditors in the estate are
preserved.
ATTY. T: Okay so, #1, the demand that they be
furnished copy of all court orders or records of the
case that was not granted.
The process servers are not required to give them
copies of all orders issued by the settlement court but
that does not mean to say that they be kept in the
dark of what is happening in the settlement case
because they can access the record of the settlement
proceeding.
Normally the practice in court, that if you are not a
party, you are not a counsel to one of the parties, you
have no right to examine the records of the case,
even if disposed, you have to justify why you want to
access, you are non-party you are not allowed access
to the records.
But in the case of a contingent claimant they are
given that right for them to be apprise of what is
happening in the settlement proceeding. They are not
parties in interest yet, they are not considered parties
to the case but they are allowed access to the
records, precisely because later on they may become
parties in the settlement proceeding.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Number 2, submission of a verified and complete
inventory of the estate, can they demand that the
court set a deadline for that? The SC said NO, as a
contingent claimant they are not allowed to
intervene.
Ergo, they have no right to ask a specific relief in the
settlement court that is the general rule.
So, if the contingent claimant perceives a certain
negligence on the art of the administrator in the
submission of inventory or some fraudulent scheme
being made to exclude certain properties to the
estate in the inventory of the estate, can the
contingent claimant complain about that? Can they
not require the court to compel the administratrix to
submit a complete inventory, a true and complete
inventory of all properties of the estate?
Unfortunately the SC aid NO, you cannot but the SC
said you have a remedy, you can seek the removal of
the administrator in accordance with Section 2 Rule
82. Under that rule there is no specific person that
can ask for the removal of the administrator for
negligence. So that is a concession given to a
contingent claimant.
Why is the contingent claimant allowed into that?
It is in the best interest of the contingent claimant to
preserve asset of the estate and not be dissipated by
the negligence of the administrator because later on
pag naging ripe na yung claim niya may makakakuha
na siya, precisely may interest pa siya. And that is
one concession given by the SC pwede mo ipatanggal.
# 3, set a deadline for the submission by the
administrator of the accounting, annual accounting,
ito administrator pabaya, ayaw mag account ng
kanyang mga expenses, ang income ng estate, all
properties of the estate hindi niya sinubmit sa court
ang accounting, all the income and expenses, how
much is the net value of the estate yearly hindi niya
ginagaw. Can the contingent claimant ask the court,
magbigay ka ng deadline, i-compel mo siya, i-submit
niya by this date? NO, you cannot do that because
you are a contingent claimant.
What is the remedy?
Ask for the removal of the administrator for not
performing his duties and responsibilities of
administration under Rule 82 Section 2.
This is a very specific, it is very specific to
CONTINGENT CLAIMANT, what they can and cannot
act in the settlement court, this is very important.
This might come out in the bar, wala pang ibang mga
kaso dealing specifically on the rights of contingent
claimant in the settlement court.
So pay attention to this case, it is very important
decided in 2009, yet hinimay himay ng SC dito ano
31
yung pwede at hindi pwede hingiin ng contingent
claimant in the settlement proceeding.
So it gives you an idea of who can be parties to a
settlement case, in a judicial settlement proceedings,
not anybody can be a party. Eh contingent claimant
nga binara ang pag intervene. But if you are a
creditor based on a contract you can intervene
although limited ang iyong participation.
There is a certain portion in a settlement proceeding
that deals specifically with the creditors, yun pwede
yung pumasok as creditors. That is where you assert
your rights the most as a creditor, although pwede
naman at the start of the proceeding you can ask that
you be appointed as administrator but that applies if
your claim as a creditor is based on contract, express
or implied.
If it is based on tort then the Hilado case comes in,
kailangan pang malaman kung merong judgment in
your favor before you can intervene as party in
interest.
ILLEGITIMATE CHILD –
Q: An illegitimate child can he intervene? A person
claiming to be the illegitimate child of the deceased,
can he intervene?
A: In the case of Tayag vs. Tayag the SC held that:
From the case: The right of respondent to maintain such a
suit is dependent on whether she is entitled to successional
rights as an illegitimate child of the decedent which, in turn,
may be established through voluntary or compulsory
recognition.
A: When he can establish his filiation... ma’am, then that is
the time that he can claim (not sure about the answer of the
student, hinay ayo ang recording)
Q: So there has to be a filiation proceeding before he
can intervene?
A: It depends ma’am, for voluntary or compulsory
recognition.
In this case the SC held that:
From the case: “Voluntary recognition must be express such
as that in a record of birth appearing in the civil register, a
final judgment, a public instrument or private handwritten
instrument signed by the parent concerned. The voluntary
recognition of an illegitimate child by his or her parent needs
no further court action and is, therefore, not subject to the
limitation that the action for recognition be brought during
the lifetime of the putative parent. Judicial or compulsory
recognition, on the other hand, may be demanded by the
illegitimate child of his parents and must be brought during
the lifetime of the presumed parents.”
Q: So are you saying then that before an illegitimate
child can intervene in the settlement proceeding of
the deceased putative parent, there has to be a ruling
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
or an acknowledgment as well as a judgment in favor
of the illegitimate child before he can as such?
A: He must first establish his filiation through judicial or
compulsory recognition, there has to be a ruling granting or
ordered by the court that the illegitimate child was indeed or
the offspring of the deceased parent such action must be
brought during the lifetime of the deceased parent.
Q: Was that the ruling in the case of Tayag?
A: In this case ma’am the SC held that:
From the case: Petitioner, however, overlooks the fact that
respondent’s successional rights may be established not just
by a judicial action to compel recognition but also by proof
that she had been voluntarily acknowledged and recognized
as an illegitimate child. In contrast, respondent in this case
had not been given the opportunity to present evidence to
show whether she had been voluntarily recognized and
acknowledged by her deceased father because of petitioner’s
opposition to her petition and motion for hearing on
affirmative defenses. There is, as yet, no way to determine
if her petition is actually one to compel recognition which had
already been foreclosed by the death of her father, or
whether indeed she has a material and direct interest to
maintain the suit by reason of the decedent’s voluntary
acknowledgment or recognition of her illegitimate filiation.
Q: Is an illegitimate child a party in interest? If an
illegitimate child is a party in interest, why is still
there is a need of a prior recognition or decision
recognizing him as such before he can be considered
as a party in interest?
A: The court need to establish the successional right or a
claim against the estate of the decedent.
Q: So are you saying that without that, the
illegitimate child cannot participate in the settlement
case of the deceased parent?
A: If there is voluntary recognition of an illegitimate child
then it needs no further court action, whereas if judicial or
compulsory recognition then it has to be established.
ATTY. T:
From the case: “We find, therefore, that the allegation that
respondent is an illegitimate child of the decedent suffices
even without further stating that she has been so recognized
or acknowledged.
The mere allegation that you are an illegitimate child
already entitles you to be a party in interest in the
proceeding.
Why? Because in the course of the proceeding you
can prove your filiation, you can present to the court
whether there are evidences to support the voluntary
acknowledgment by your putative parent.
There is no need of a prior establishment of your
status as an illegitimate child, on mere allegation that
you are an illegitimate child of the deceased would
32
suffice. That is the ruling, I don’t know where you got
your answer.
It is clear, that a motion to dismiss on the ground of
failure to state a cause of action in the complaint
hypothetically admits the truth of the facts alleged
therein.
Assuming the fact alleged to be true, i.e., that
respondent is the decedent’s illegitimate child, her
interest in the estate as such would definitely be
material and direct. The appellate court was,
therefore, correct in allowing the proceedings to
continue, ruling that:
“respondent still has the duty to prove the allegation
(that she is an illegitimate child of the decedent), just
as the petitioner has the right to disprove it, in the
course of the settlement proceedings.”
So this is why a son, acknowledgment as an
illegitimate child thus can be joined in a settlement
proceeding. This is an exception to the rue in a
settlement proceeding that there can be no joinder of
causes of action of a settlement proceeding in an
ordinary cause of action. Because obviously here you
can join the 2.
If you want to be acknowledged as an illegitimate
child then you can do it in a settlement proceeding
and the mere allegation that you are an illegitimate
child would suffice to give you standing in the case.
You are a party in interest in that case subject to your
proof later on in the proceeding, in the course of the
proceeding.
Take note of that mere allegation that you are an
illegitimate child would suffice.
Patay na nga yung putative parent mo, hihingi ka pa
ng acknowledgement na decision sa court. How can
you do that? I-su-sue mo yang patay na, you cannot
do that anymore, precisely dito mo na gawin, sa
settlement na tayo ng estate, that is the most
practical thing to do.
Why would you file a compulsory recognition of a
status of an illegitimate child of the person who is
already deceased, sino ang respondent mo, wala na,
dito ka na sa kanyang estate because all the heirs are
there. They will be bound by whatever finding of the
settlement curt. That is why this is one instance for
the settlement court even with limited jurisdiction
can rule on whether or not a party claiming to be an
illegimate child of the deceased can inherit as an heir,
part yan ng limited jurisdiction ng settlement court to
rule on the illegitimacy of an heir.
Take note of that ruling ha, hindi kailangan na ang
acknowledgement or a prior decree in a settlement
proceeding that you are an illegitimate child, diyan
mo i-establish precisely by the mere allegation that
you are an illegitimate child already gives you
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
standing in that case, that is where you prove your
filiation, your paternity and filiation.
(So read the cases carefully, understand anong ruling ng SC
diyan you are not giving me the right answers you are giving
me the exact opposite of what is the ruling. It makes me
wonder kung binasa niyo ba talaga, inintindi niyo ba,
inanalyze niyo ba.
Were you be to at least imagine of what is on in a settlement
proceeding, dito pa lang tayo sa parties in interest, sino pa
ang parties sa proceeding, as we go along magiging
complicated pa yan may foreign law pa tayo later on.
So read the cases carefully, do not just brisk through it, this
is a different kind of proceeding that you are encountering,
special proceeding this is not an ordinary civil action not a
special civil action. This is a different breed of its own, it
requires a bigger understanding.
Your assigned cases read them, understand them, compare
paano nagkaiba ang mga cases na inassign sa inyo.)
January 16, 2016 (AC)
Q: Is there a need for an administrator to be
appointed in order to substitute a party?
We are still in the topic of “Parties-In-Interest.”
Supposing a party in interest in a probate or intestate
proceeding dies, are the heirs required to have an
administrator to substitute the deceased heir in that
case? Is that required under the Rules?
S: No.
Q: When is it necessary to have an administrator?
What is the decided case on that?
A: San Juan case.
From the FT: “The second paragraph of the rule is
plain and explicit: the heirs may be allowed to be
substituted for the deceased without requiring the
appointment of an administrator or executor.
However, if within the specified period a legal
representative fails to appear, the court may order
the opposing counsel, within a specified period, to
process the appointment of an administrator or
executor who shall immediately appear for the
estate of the deceased.”
The Rules are to be interpreted liberally in order to
promote their objective of securing a just, speedy
and inexpensive disposition of every action and
proceeding. They cannot be interpreted in such a
way as to unnecessarily put undue hardships on
litigants. For the protection of the interests of the
decedent, this Court has in previous instances
recognized the heirs as proper representatives of
the decedent, even when there is already an
administrator appointed by the court. When no
administrator has been appointed, as in this case,
33
there is all the more reason to recognize the heirs
as the proper representatives of the deceased.
Since the Rules do not specifically prohibit them
from representing the deceased, and since no
administrator had as yet been appointed at the time
of the institution of the Complaint with the SEC, we
see nothing wrong with the fact that it was the heirs
of John D. Young, Sr. who represented his estate in
the case filed before the SEC.”
The heirs of the estate of Oscar Casa do not need
to first secure the appointment of an administrator
of his estate, because from the very moment of his
death, they stepped into his shoes and acquired his
rights as devisee/legatee of the deceased Loreto
San Juan. Thus, a prior appointment of an
administrator or executor of the estate of Oscar
Casa is not necessary for his heirs to acquire legal
capacity to be substituted as representatives of the
estate. Said heirs may designate one or some of
them as their representative before the trial court.”
SUMMARY SETTLEMENT OF
ESTATE
Rule 74
Q: What are the basic requisites?
S: Under Section 74, Section 2.
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
Section 2. Summary settlement of estate of small value. —
Whenever the gross value of the estate of a deceased
person, whether he died testate or intestate, does not
exceed ten thousand pesos, and that fact is made to appear
to the Court of First Instance having jurisdiction of the estate
by the petition of an interested person and upon hearing,
which shall be held not less than 1 month nor more than 3
months from the date of the last publication of a notice
which shall be published once a week for 3 consecutive
weeks in a newspaper of general circulation in the province,
and after such other notice to interest persons as the court
may direct;
xxx
Q: What are the additional requirements? So you
cannot go for summary settlement if there are debts?
S: No Ma’am.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: Are you sure? So is the absence of debts necessary
for summary settlement?
Section 3. Bond to be filed by distributees. — The court,
before allowing a partition in accordance with the provisions
of the preceding section, my require the distributees, if
property other than real is to be distributed, to file a bond in
an amount to be fixed by court, conditioned for the payment
of any just claim which may be filed under the next
succeeding section.
Section 4. Liability of distributees and estate. — If it shall
appear at any time within 2 years after the settlement and
distribution of an estate in accordance with the provisions of
either of the first two sections of this rule, that an heir or
other person has been unduly deprived of his lawful
participation in the estate, such heir or such other person
may compel the settlement of the estate in the courts in the
manner hereinafter provided for the purpose of satisfying
such lawful participation. And if within the same time of 2
years, it shall appear that there are debts outstanding
against the estate which have not been paid, or that an heir
or other person has been unduly deprived of his lawful
participation payable in money, the court having jurisdiction
of the estate may, by order for that purpose, after hearing,
settle the amount of such debts or lawful participation and
order how much and in what manner each distributee shall
contribute in the payment thereof, and may issue execution,
if circumstances require, against the bond provided in the
preceding section or against the real estate belonging to the
deceased, or both. Such bond and such real estate shall
remain charged with a liability to creditors, heirs, or other
persons for the full period of two (2) years after such
distribution, notwithstanding any transfers of real estate that
may have been made.
Q: What is the bond for? Who determines the bond?
What is the basis of the bond?
Distinguish now the bond requirement in summary
settlement vis-à-vis the bond requirement in extra-
judicial settlement. How will you distinguish the two?
What is the difference? The value of the property?
The determination of the bond? The basis of the
bond?
From Golden Notes: The amount of bond required
under Section 2 is determined by the COURT
whereas in Section 1 the amount is EQUAL TO THE
VALUE OF THE PERSONAL PROPERTY as
established by adjudication.
Is there a difference in the bond requirement
between the two? There is a difference. I wouldn’t be
asking you here, wasting my time, if there is not. Ka-
simple lang.
Where do you file the bond?
S: In the EXJ, in the Register of Deeds. In summary
settlement, in court.
34
Obviously, it is already a judicial proceeding, so you
file it in court. That is the difference. Ang pinagka-iba,
ang isa extra-judicial so walang korte na involved.
Yung isa is judicial settlement, you file the bond in
court. It is right under your nose. Ganun lang
kasimple. Kung pupunta ka sa ROD to file the bond
for summary settlement, ma-contempt ka talaga ng
court for not complying with the procedure. Again,
one is judicial and the other is extra-judicial. If
judicial, everything has to go through the court. In
extra-judicial, wala talangan kinalaman ang court.
These are the basic things that you need to stick in
your mind. Dapat, klaro yan from the start.
Q: What is the procedure for summary settlement of
estate?
S: There must be a petition filed in the court in the CFI
having jurisdiction of the estate and that there must be a
hearing.
Q: What happens after the hearing?
S: According to Section 2:
Sec. 2. x x x
“the court may proceed summarily, without the appointment
of an executor or administrator, and without delay, to grant,
if proper, allowance of the will, if any there be, to determine
who are the persons legally entitled to participate in 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.” x x x
There is “payment of debts”, meaning to say “With or
without debts”, you can avail of summary settlement.
In extra-judicial settlement, wala talaga dapat utang.
That is the number one point there. That is the basic
procedure. I just want you to become familiar with
that. If the Supreme Court amends the rule and
change the jurisdictional amount, then the same rule
will apply. If the SC will adjust the jurisdictional
amount to P100,000 and you go through summary
settlement of estate, then you can just follow the
same procedure. There will be payment of debts,
publication, summary hearing. If there is a will, there
is also a determination or probate of the will in the
same proceeding. Everything will be expedited.
Q: Based on the decided cases, assigned to you, can
the court rule on the issue of acknowledgement of
compulsory heirs? Acknowledgment of a legitimate
child?
S: Yes, Ma’am.
Q: How about the character of the property, whether
conjugal or separate? Can the court rule on that?
S: Yes Ma’m.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: What case is in point here? Can the settlement
court rule on the validity of marriage of the
decedent?
This is now an exception to the rules on declaration
of nullity of void marriages and annulment of
voidable marriages. There is a special rule on that and
it explicitly states that only the husband or the wife
will file the petition. If one of them dies, nobody else
can question the validity of the marriage. The
exception is if there is a settlement case and the heirs
will raise the issue of the nullity of the marriage of
the deceased. That is allowed. That is allowed as
ruled in one of the cases. The heirs can raise said
issue in the settlement case.
Q: What is the purpose why is that allowed?
A: It is to determine the extent the successional rights of the
heirs. It has something to do with the successional rights of
the parties.
ATTY. T: If the marriage is declared void, then the heir
will have a bigger or lesser share. If you have a
situation where the decedent married twice but the
second marriage turned out to be bigamous, so where
do you question now the nullity or where do you file
an action now declare the second marriage void? You
can no longer file a petition because patay na ang
party. So you file now a petition for settlement of
estate. Any offspring in that bigamous marriage
would definitely have a lesser share or it could be the
other way around. So the purpose here is to
determine the successional rights or interests of the
parties in the proceeding. So take note of that. Once a
person is dead, no one else can question the validity
of his marriage. Unless the heirs would raise it in a
settlement proceeding.
Let us now go to Regular Settlement of Estate, still
under judicial proceeding.
EXTRAJUDICIAL SETTLEMENT
Q: What are the two types of regular settlement
proceedings?
S: Testate and Intestate.
Q: Let’s go to testate proceeding, what do you
understand about this?
S: Settlement of a deceased person’s estate before the court
if there is a will.
Q: If there is no will?
S: If there is no will or if the will is invalid, then intestate
proceeding.
Q: What type of will are we talking about here?
S: Holographic and notarial wills.
35
Q: What do you understand with notarial will?
S: Subscribed by the witnesses and acknowledged before a
notary public.
Q: How about holographic will?
S: It is entirely written, date and signed by the testator.
Q: What is the venue of testate proceeding? Where
should you file it?
S: Under Rule 73, Section 1: “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.”
Q: If you have a last will and testament and the
decedent dies outside of his place of residence, where
should the petition be filed?
S: It should be filed in the court of the province where he
resided at the time of his death, Ma’am.
Q: What petition do you need to file in court for
testate proceeding?
S: A petition for probate.
Q: In the case of Uriarte vs. CFI of Negros, where did
the decedent die here?
S: In Negros.
Q: Where was his will probated?
S: In the Manila Court.
Q: Is the probate of the will in Manila correct?
S: No. It should be filed in the Negros Court because it was
there where he resided at the time of his death.
Q: So supposing the will was found or located in
Manila, shouldn’t the will be probated in Manila since
it is the place where it was recovered?
S: No. It is still where the decedent resides.
Q: So what happened in this case?
S: In this case, the petitioner filed an intestate proceeding in
the Negros Court. However, Uriarte filed probate for an
alleged last will and testament of the decedent in the Manila
Court.
Q: So there are two proceedings here, testate and
intestate. The intestate case was filed first. What
happens now, in the case of Uriarte, where an
intestate proceeding was filed ahead and later on a
will was discovered? Where should the will be
probated if you have an intestate proceeding and
later on you discover that there was a will left by the
decedent?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
S: In the same court where the intestate proceeding
commenced.
Q: So you submit it to the intestate court. That is
where you should have it probated. What is the
reason?
A: 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.
In that case, it is the Negros court that already acquired
jurisdiction of the case. Since there was already that
proceeding, then the probate of the newly discovered will
must also be done in the said court. The proceeding should
have been converted from intestate to testate proceeding.
But what happened was another case was filed in Manila.
Worse, Negros court dismissed the settlement case.
Q: Was that correct?
S: No.
Q: What is the final disposition of the Supreme Court?
What happened in that probate case in Manila? What
was the outcome?
S: The Manila court allowed the probate of the will.
Q: Given that was the scenario, did the Supreme
Court invalidate the proceeding in the Manila court?
ATTY. T.: Dahil lang nagpabaya ang oppositor, that
is why the probate proceeding continued. So given
that was already the outcome, the SC did not nullify
the proceedings in the Manila court. There was
really no obstacle anymore to the Manila court
having jurisdiction over the case. Rather than undo
what happened in the Manila court, then the SC
simply gave credence to it. After all, there was
laches on the part of the oppositor and the Negros
proceeding was already dismissed.
Q: Why is there a need to probate the will? Can the
parties go for extra-judicial partition of the estate
following the dictates of the testator in his last will
and testament without going through the probate of
that will?
PRODUCTION OF WILL
Rule 75
Section 1. Allowance necessary. Conclusive as to execution.
No will shall pass either real or personal estate unless it is
proved and allowed in the proper court. Subject to the right
of appeal, such allowance of the will shall be conclusive as to
its due execution.
You cannot divide the properties unless the will has
undergone the process of probate. That is the answer.
36
Even if the heirs are in agreement, you have to go
through probate. Any disposition of the estate in
accordance to the will without probate is void. That is
why, it says: “No will shall pass either real or
personal estate unless it is proved and allowed in the
proper court.”
Therefore, probate proceeding is mandatory. It does
not depend on the will of the heirs. The moment you
have a will, go to the court and have it probated. No
ifs, no buts, no exception to the rule. Whether the will
is notarial or holographic, you go to the court before
you can implement whatever is stated in that will.
Q: Can there be a will without testamentary
disposition?
S: When the will only contains disinheritance.
Are you sure there is no testamentary disposition? Indirectly,
there is because the share of the disinherited heir will be
added to the other heirs. Technically, every will has to have
a testamentary disposition. In fact, a disinheritance is
considered as a will and it has to go through probate. A
simple disinheritance, if it is a will, it can either be in a form
of holographic or notarial will.
Q: What is the scope of inquiry of a probate case?
S: It is limited on the extrinsic validity of the will, due
execution, observance formalities and solemnities and
testamentary capacity of testator.
Q: When you say that the probate of the will is limited
to the determination of the extrinsic validity of the
will and extrinsic validity includes due execution and
due authenticity of the will, can there be an instance
where the probate court can also look into the
intrinsic validity?
Q: What happened in the case of Nuguid vs. Nuguid?
A:
From the case: “Although as a general rule, the
probate court is limited only to the extrinsic validity.
In the case at bar, however, a peculiar situation
exists. The parties shunted aside the question of
whether or not the will should be allowed probate.
They questioned the intrinsic validity of the will.
Normally, this comes only after the court has
declared that the will has been duly authenticated.
But if the case were to be remanded for probate of
the will, nothing will be gained. In the event of
probate or if the court rejects the will, probability
exists that the case will come up once again before
this Court on the same issue of the intrinsic validity
or nullity of the will. The result would be waste of
time, effort, expense, plus added anxiety. These
practical considerations induce this Court to meet
head- on the issue of the nullity of the provisions of
the will in question, there being a justiciable
controversy awaiting solution.”
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: What do you mean by preterition? When is an heir
preterited? In this case, who were preterited?
S: The parents of the testator.
Q: If there is preterition, what is the effect?
S: It shall annul the inheritance.
Q: Isn’t this a simple case of ineffective
disinheritance?
S: No, Ma’am.
Q: What is the difference between preterition and
ineffective disinheritance?
Atty. Tiu: Ineffective disinheritance will not result to the
nullity of the entire will. Whereas in preterition, it nullifies the
entire will unless there are other dispositions made by way of
legacy and devise.
Q: In the case of Nuguid vs. Nuguid, is there a devise
or legacy made here?
S: No.
Q: In this case, is there preterition?
S: Yes Ma’am.
Q: When it comes to preterition, what is the rule?
S: The institution of the heirs will be annulled and the
proceedings for intestacy will be opened.
ATTY. T: This is an exception to the rule that in
probate cases you only limit to the extrinsic validity
of the will. Precisely, you need to go through the
intrinsic validity here because if indeed the provisions
are intrinsically void, then why would you go through
probate. It will be useless. The entire will be nullified
anyway because of preterition. The effect is that
proceeding will become intestate. In probate
proceeding, generally, you only look at the extrinsic
validity of the will. The moment somebody opposes
the will on the ground of preterition, then the court
must go to the intrinsic validity of the will. That is the
number one priority of the probate court. That is
where you deviate from the main objective of the
probate proceeding. Kapag may nag-raise nan a void
ang will because of preterition, then it is time to look
into the intrinsic validity. If you are a judge and you
refuse to check the intrinsic validity, then you are
guilty of grave abuse of discretion. So there must be a
prior determination of the intrinsic validity of the will
when the issue of preterition is raised. This is the
exception to the rule.
Q: In the case of Balanay vs. Martinez, was there
preterition? No? Who was the omitted heir here?
S: The husband Ma’am.
Q: Who are the heirs in the direct line? So the
husband cannot be preterited? Was the court correct
37
here in looking at the intrinsic validity of the will even
if there was no preterition?
S: Yes Ma’am because there are doubtful provisions in the
will.
Q: Is that enough justification to look at the intrinsic
validity of the will? Yes? Why?
When provisions of the will create doubt, then the
court can look into it even though the object of the
probate proceeding is merely to determine the
extrinsic validity of the will. The main purpose here is
to avoid multiplicity of suits.
From the case: Where the will contains unusual
provisions which are of dubious legality and a
motion to withdraw the petition for probate
presumably with petitioner's authorization has been
filed, the trial court can pass upon the will's intrinsic
validity even before its formal validity had been
established.
Q: In the case of Nepomuceno vs. CA, was there a
need for the probate court to look into the intrinsic
validity of the will?
S: Yes, Ma’am.
If you are a mistress, you cannot be a legatee or devisee in
the will of your paramour. If there is such a will, where a
devise or legacy was given to you by your paramour, that is
void. The law prohibits the donation or fiving of properties to
a common law spouse.
Q: In that case, what is the effect of that
testamentary disposition?
What is the effect now if there is a
nullification of that provision in the will.
So there will be partial intestacy in that case
because some of the properties mentioned in
the will cannot be given to the persons
named in the will. Therefore, intestacy arises.
That is an instance where the probate court
can look into the intrinsic validity of the will.
Take note of this case. Intestacy will follow
insofar as the nullified provisions of the will is
concerned.
Q: Can the mistress still participate in that
proceeding?
Yes, not as an heir, legatee or devisee but a
party-in-interest being a co-owner especially
if you can establish that the property was
acquired during the cohabitation of the
parties.
From the case: Given exceptional circumstances,
the probate court is not powerless to do what the
situation constrains it to do and pass upon certain
provisions of the Will. The will was validly executed
in accordance with law but the court didn't find it to
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
serve a practical purpose to remand the nullified
provision in a separate action for that purpose only
since in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its
provisions.
Q: What is the subject of the probate?
S: The due execution and formalities of the will.
Q; Can you have a probate without a will?
S: No, Ma’am.
Q: What kind of will are we talking about here?
S: Notarial and holographic will.
Q: How about wills executed abroad? Are wills
executed abroad by foreigners be probated here? If X
has a will executed in the US, can you have it probate
here?
ATTY. T: If he has no properties in the
Philippines, of course no. Why would you
probate here na wala mang jurisdiction ang
court over the estate. So foreign wills made
by foreigners can be probated here in the
Philippines for as long as there are properties
in the Philippines forming part of the estate.
So only in cases where there are properties
located in the Philippines can you allow the
probate of the foreign will. Take note of the
provision on venue – Rule 73, Section 1.
The key element here for the court to have
jurisdiction over the probate proceeding is
the existence of the estate or a portion of the
estate here in the Philippines. Otherwise,
walang pakialam ang courts natin sa wills ng
foreigners. Pag walang estate, why would
you probate, what for? What would you settle
if there is no estate?
Always keep in mind that the two basic
important element in the settlement
proceeding: death and estate. That applies in
the probate in the will.
Q: What else can be the subject of a probate? Only
the last will and testament?
S: Codicil.
Q: What if the codicil will say “I am revoking my
previous will.” That is all it says. What is the effect?
Parang pahabol siya: “PS Please revoke the notarial
will that I have executed.” What happens now? Will
that be probated?
S: That is tantamount to express revocation Ma’am as long
as the requirements for express revocation are valid.
Q: What codicil will have to undergo probate even if
its purpose is only to revoke a previously executed
will?
38
How about partially revoked will? A partially revoked
will can still be probated?
ATTY. QT: A partially revoked will is still a
valid will. It’s just that some of its provisions
have been revoked. Those provisions that
have not been revoked will still be given
effect so you still need to undergo probate.
Otherwise, those non-revoked provisions of
the will cannot be effected and as a result,
the properties involved cannot be
transmitted.
Q: Why is still a need to probate disinheritance?
S: Because there is still disposition.
Q: In the case of Seangio vs. Reyes, how is the
disinheritance made here?
S: Alfredo was disinherited because of maltreatment.
So in this case, this is considered as a will… The
disinheritance is considered as a will and should undergo the
same requirement of probate proceeding. In this case, there
was an intestate proceeding that was filed.
Q: Which was filed first, the probate of the
holographic will or the intestate proceeding?
S: The intestate proceeding.
Q: Given that there are two proceedings here,
probate and intestate, which should have priority?
S: As a rule, if there is a will, the probate of the proceeding
must be prioritized.
ATTY. QT: In this case, there was disinheritance. The
effect would still be intestate proceeding. So why is it
that it should be given effect or priority when the
effect of the disinheritance is that there is really no
specific testamentary disposition to specific heir so it
will still redound to intestacy. So why is it given
priority here?
Should the intestate proceeding, because there is
that will, should it be dismissed? Is there a need to
dismiss the intestate proceeding?
In this case, it is as if the probate proceeding
imposed on sort of a prejudicial question as to the
shares of the heirs who were not disinherited. So as
not to complicate the proceedings, the intestate
proceeding will have to be dismissed. The concept as
to prejudicial question is similar but hindi talaga
prejudicial question ha.
Q: Is there a need for a foreign will to be probated
first in the country where the foreigner resides before
it can be probated here in the Philippines?
S: No.
Q: Why not?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
S: In the case of Palaganas, it was ruled that “But 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. A foreign will
can be given legal effects in our jurisdiction. 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.”
Q: What do you need to prove in court if a foreign will
executed by a foreigner is probated here in the
Philippines? What do you need to allege? If you want
the Philippine court to rule on the extrinsic validity of
the will, including the due execution and intrinsic
validity of the will, what do you need to prove in
court?
ATTY QT: You need to prove the foreign laws
because the Philippine courts do not take
judicial notice of the said laws. Kasama yan
sa i-allege mo. That is what makes it different
from the ordinary will that you have subject
to probate here in the Philippines. Iba kapag
foreign law.
Kaya in the case of Palaganas vs. Palaganas,
there was that confusion. Because ordinarily,
a foreign will has been treated here in the
Philippines as reprobate. Meaning to say,
nagprobate sa abroad and merong mga
properties sa Philippines na affected that has
to be reprobated here. So it is just a mere
ancillary proceedings that you conduct here
for the purpose of reprobate. That is the usual
rule.
So pagdating sa case ni Palaganas, you have
a will executed by a foreigner that has not yet
been probated anywhere. It was presented
here in the Philippines for the first time.
The lower court said na mali daw yun. It is
required to have that foreign will probated
first in the foreign country bago magpunta sa
Philippines.
But the SC said that it is wrong. You can do
probate here in the Philippines even if the
foreign will was presented for the first time,
as long as there are properties affected here
in the Philippines. The only difference is that
since it involves a foreign will, then there is
an additional requirement. The national law
of the decedent and the law of the place
where the instrument was executed must be
alleged. The first law governs the
testamentary capacity of the testator and the
second law governs the due execution of the
will. It is not mandatory that the foreign will
must be probated in the foreign place where
39
it was executed. It can be probated in the
Philippines for the first time as long as you
comply with the requirements. Hindi na
kailangan na unahin ang foreign probate.
Q: What do you mean by due execution and validity of
the will?
S: That the will has complied with the formalities of the law.
Q: Once the will has been probated, what is the
effect?
ATTY QT: The extrinsic validity of the will has
been determined. That means that there was
compliance with the formalities or requisites
of the will and the genuineness of the will has
been determined. The effect of that is the will
that has been probated can no longer be
annulled and the second one is there is no
longer a case for forgery or falsification.
Effects of a probated will:
1. No civil case for annulment of the will
can prosper
2. No case for forgery can prosper
Reason: Conclusive finding as to validity and
genuineness of the will as well as the
testamentary capacity of the testator.
Read the case of Gallanosa vs. Arcangel:
Ruling: That means that the testator was of sound
trial disposing mind at the time when he executed
the will and was not acting under duress, menace,
fraud, or undue influence; that the will was signed
by him in the presence of the required number of
witnesses, and that the will is genuine trial is not a
forgery. Accordingly, these facts cannot again be
questioned in a subsequent proceeding, not even in
a criminal action for the forgery of the will. After the
finality of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised
anymore.
Q: What happens if the will is not probated?
S: It cannot be given effect.
Q: Is there an exception to that?
S: Yes Ma’am. It was mentioned by the Supreme Court in the
case of Mangan-oy vs. CA.
From the full text: “After examining the musty
records, we sustain the ruling-made both by the
trial court and the Court of Appeals-that the will, not
having been probated as required by law, was
inoperative as such. The settled principle, as
announced in a long line of decisions in accordance
with the Rules of Court, is that no will shall pass
either real or personal property unless it is proved
or allowed in court.”
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
We find, however, that the document may be
sustained on the basis of Article 1056 of the Civil
Code of 1899, which was in force at the time the
said document was executed by Old Man Tumpao in
1937.”
The said article reads as follows: Art. 1056. If the
testator should make a partition of his properties by
an act inter vivos, or by win, such partition shall
stand in so far as it does not prejudice the legitime
of the forced heirs.”
The case of Mangan-oy is one of a kind case. How
many wills do you have here? This is an exception
which is no longer controlling now. Why? It is only
limited to those will executed prior to the effectivity
of the New Civil Code (1950). If you have a 70 year
old and above will, hindi na applicable ang ruling dito.
In effect, wala ng masasabi na exception that all wills
must undergo probate. Under the old Civil Code, even
if there is no probate, there can be partition of the
estate among the heirs. BUT NOT ANYMORE ha!
Under the New Civil Code and Rules of Court, probate
is already mandatory.
Q: What are the two types of probate?
S: Domiciliary and ancillary.
Q: Can there be joint probate of wills?
S: Yes.
Q: Isn’t that prohibited?
S: No. What is prohibited is the execution of two wills in one
instrument but not the joint probate.
If it is a joint execution of the will, it means that in
one instrument, dalawa silang pumirma. Void yan.
Don’t bother having it probated kasi void talaga yan.
But where there are two wills involving identical
provisions on particularly the same set of properties,
then you can have joint probate of the will. That is in
the case of Perez vs. Tolete.
Q: When does the jurisdiction of the probate court
attach? When can you say that the probate court has
acquired jurisdiction over the probate proceedings?
S: When the will is delivered to the court or when a petition
for probate has been filed.
Q: When you file a petition in court for the probate of
the will but there is no will attached, can you do that?
S: Yes.
Q: Does the court acquire jurisdiction
notwithstanding the non-attachment of the will?
S: Yes.
Q: Isn’t it that the will that must be probated must be
presented in court?
S: Yes.
40
Q: If you want the court to declare the will to be
extrinsically valid, then isn’t it that you need to
attach the will to your petition? Isn’t that an
actionable document that must be attached to your
petition?
S: No.
Q: Why not? How do you reconcile the non-
attachment of the will to the petition with the rule on
actionable documents?
If I am going to be an examiner, I will ask that in the
bar. Is the will an actionable document or not? Read
the definition of an actionable document.
Rule 8, Section 7. Action or defense based on document.
— Whenever an action or defense is based upon a written
instrument or document, the substance of such instrument or
document shall be set forth in the pleading, and the original
or a copy thereof shall be attached to the pleading as an
exhibit, which shall be deemed to be a part of the pleading,
or said copy may with like effect be set forth in the pleading.
(7)
Q: Can you consider the will as an actionable
document? Isn’t it written? Isn’t it the basis for your
petition for probate?
An actionable document is only for a case
involving a cause of action. Kaya nga the
action is based on the instrument. There is a
contest between the rights of a plaintiff and
defendant. Technically, the rule on actionable
document applies only in ordinary actions.
Here, we are talking of a special proceeding.
In a special proceeding, there is really no
cause of action. There is no defense.
Technically, you cannot say that the will is an
actionable document.
Even assuming that it is an actionable
document, because that is the very basis of
the petition, there is that provision in the
Rules of Court that it can be produced later.
It does not say that it has to be attached.
There is a specific rule in the special
proceedings. There is no room for suppletory
application of the Rules on Civil Procedure
when the Rules on Special Proceedings
specifically have a rule on it. Meron namang
particular provision so yun ang mag-apply.
There can be no probate of a will unless you
prove the existence of that will. You reveal
that. We said that the petition need not
contain a copy of the will. You do not need to
attach. You just have to allege the existence
of the will.
Q: You file a probate petition in Davao city without
attaching the copy of the will but later on, the will
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
was presented in the Cebu city court. Which court will
have jurisdiction? On the court where the petition
was filed or on the court which received the will?
Q: Why will the court in Cebu city have jurisdiction
over the case when what they have was only the will?
There was no petition filed on the said court. There
was only a delivery of the will.
S: It was ruled by the court in the case of Rodrigues vs.
Borja that there are two ways on how the court can acquire
jurisdiction: upon filing of the petition AND upon delivery of
the will.
Q: What is the basis of the rule allowing or granting
the court jurisdiction by the delivery of the will? Why
bother looking for a lawyer to draft the petition na
pwede ka na palang mudiretso nalang sa court by
submitting the will? What is the reason behind this?
S: The basis is under Rule 76, Section 3.
Rule 76; Section 3. 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 3 weeks successively, previous to
the time appointed, in a newspaper of general circulation in
the province.
You said that mere delivery of the will is sufficient, does it
mean that you no longer need to file a petition anymore?
Can you just deposit the will and let the court take over or
do you still need to submit a petition? Isn’t it that in every
case you file in court, you are required to file docket fees?
Otherwise, follow the Manchester ruling, you dismiss it. How
do you reconcile that now? The only way you can assess the
docket pay is when you submit the petition.
Q: When was this Rodriguez decided?
S: 1966.
ATTY QT: It was decided 50 years ago… when
everything does not depend on money. 50
long years ago na to. Hindi pa ako
napapanganak by that time. Life was simple.
Everyone was idealistic and everyone was
interested in the pursuit of truth and justice.
Fast forward, 50 years later, is that the same
condition we have now? Unfortunately no.
Try going to court and magdala ka ng last will
and testament, do you think the court will act
on it? Ang first thing they will check is to look
whether the docket fees have been paid. If
wala, then sorry.
Kaya to be safe, gumawa ka ng petition, pay
the docket fees and then you can say that the
court has acquired jurisdiction. Do not rely on
41
that Rodriguez ruling kasi madali nalang
lusutan yan ngayon. You can just raise the
Manchester ruling. No docket fees = no
jurisdiction. Kasi the rule on docket fees also
applies in special proceedings. For academic
discussion, yes pwede yan but in actual
practice, it doesn’t really apply. For the sake
of the bar, pwede ang delivery of the will or
deposit of the will for the court to acquire
jurisdiction but in real life, do not rely on the
Rodriguez ruling.
Going back to the question, for me, it is the Davao
court that has jurisdiction. Do not isolate the case of
Rodriguez from all the other cases involving the court
jurisdiction. We also have the Manchester ruling.
Since there was a petition in Davao court and the
docket fees have been paid then the Davao court has
jurisdiction.
Q: In this case of Rodriguez, when was the will
delivered? When was the petition filed?
ATTY QT: So you have two petitions filed on
the same day. One is for probate at 11AM and
the intestate at 8AM so a mere difference of
three hours.
Q: So which court has jurisdiction, Rizal or Bulacan
court?
S: Bulacan court because it was where the will was delivered.
From the full text: The jurisdiction of the Court of
First Instance of Bulacan became vested upon the
delivery thereto of the will of the late Father
Rodriguez on March 4, 1963, even if no petition for
its allowance was filed until later, because upon the
will being deposited the court could, motu proprio,
have taken steps to fix the time and place for
proving the will, and issued the corresponding
notices conformably to what is prescribed by section
3, Rule 76, of the Revised Rules of Court.
The use of the disjunctive in the words "when a will
is delivered to OR a petition for the allowance of a
will is filed" plainly indicates that the court may act
upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is as
yet filed.
Where the petition for probate is made after the
deposit of the will, the petition is deemed to relate
back to the time when the will was delivered. Since
the testament of Fr. Rodriguez was submitted and
delivered to the Court of Bulacan on March 4, while
petitioners initiated intestate proceedings in the
Court of First Instance of Rizal only on March 12,
eight days later, the precedence and exclusive
jurisdiction of the Bulacan court is incontestable.
So there is a retroactive effect. In that case, the
reckoning point is the delivery of the will.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
What does the case of Rodriguez tell us?
Yes, there are two ways on how the court can acquire
jurisdiction over the probate:
 filing of the petition or
 delivery of the will.
If you take into consideration the latest rulings of the
court with respect to docket fees, then we can say
that the mere deposit or delivery of the will does not
really vest jurisdiction to the probate court because
payment of docket fees is also necessary.
So how do you reconcile the two? The answer is in
the case of Rodriguez: When you file the petition,
belatedly, then you pay the docket fees, it will
retroact to the date you delivered the will. Eh di wala
ng question diba? Basta bayad na yan. The lesson
here is not just to deliver the will and wala ng
gagawin. Sundan mo ng petition. Bayaran mo ang
docket fees. Then you can argue on the retroactivity
of the will. Then you can argue that the Cebu court
has acquired jurisdiction of the case. That is how you
reconcile the two.
Q: Who can file a petition for the principal probate
proceeding?
S: It is found in Section 1 of Rule 76.
Rule 76; Section 1. Who may petition for the allowance of
will. — 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 his will.
There are two kinds of probate proceeding. One is
during the lifetime of the testator and the other one
is after the death of the testator.
Q: If it is during the lifetime of the testator, who can
file for probate?
S: Only the testator.
The rule here is that for as long as the testator is still
alive, the only person who can file for the petition for
probate is only the testator to the exclusion of all
others.
Kapag namatay na siya, tsaka na papasok si executor,
administrator or heir/s.
Q: Who is an executor?
S: The person designated by the testator to execute the
provisions of the will.
Let’s go to the probate of the will during the lifetime
of the testator.
42
Q: What is the extent of the proceeding when the
testator himself files for the probate of his will?
S: It is only up to the extrinsic validity of the will.
Q: When does that proceeding end?
S: Upon the issuance of the certificate of allowance.
Q: How about if the probate proceeding was filed
after the death of the testator?
S: The executor, devisee, legatee and any other interested
person can file the petition.
Q: After the allowance of the will, what will happen
next? You said that it will terminate at the issuance
of the certificate of allowance. So ano na ang
mangyayari sa will? If there is termination later, then
why do you say that the proceeding is terminated
upon the issuance of the certificate?
ATTY QT: Okay, we said that a will cannot
pass real or personal properties unless it has
been proved and allowed in an appropriate
court. The end goal of probating a will is to
distribute the properties in accordance with
the will. Kaya nga ang bayad mo sa filing fees
is based on the gross value of the estate. If
the petition was filed after the death of the
testator, tuloy tuloy yang proceedings mo
hanggang ma-distribute ang estate. Yan ang
purpose ng probate: to give effect to the
distribution of the properties; to give effect to
the last wishes of the deceased.
Magkaiba lang if it is the testator, during his
lifetime, who files the probate of his own will.
Why does the law allow that? Hindi pa siya
patay pero pwede na probate. For as long as
the testator is alive, even if he has already
probated his will and a certificate of
allowance has already been issued, still the
testator can change his will. That is the very
reason why the proceedings would terminate
upon the issuance of the certificate of
allowance. It cannot proceed to the
distribution kasi buhay pa siya.
In succession, remember that successional
rights are transmitted from the moment of
death. So as long as the testator is alive,
there is a possibility that he or she will
change his or her mind by making a new will
or revoking the will. If patay na siya and if
the executor or heirs ang nagfile sa petition,
then tuloy tuloy na yan.
Q: Why does the law allow the testator to probate his
own will eh pwede pa naman magbago ang isip niya?
ATTY. T: Well, that is also a right granted to
the testator to ensure that nobody can
question his testamentary capacity when he
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

made that will. If it is the testator who A: Not necessarily in the same court, Ma’am.
petitions for the probate of his will, it is he
Q: So where do you file it?
himself who will testify as to the validity of
the provisions. Siya mismo mag-sasabi na A: In any court, but in the same jurisdiction, Ma’am.
“Yan ang signature ko, I know what I am
doing, this is my will.” Q: What was the first pleading filed by the executor
in the case of Maloles after the death of the testator?
A: On April 3, 1996, petitioner Octavio S. Maloles here, filed
January 6, 2016 (AAGopo) a petition for intervention, Ma’am.
Q: Is he the executor? What was the pleading filed by
TESTATE PROCEEDING the executor?
Rule 76
A: She filed for the issuance of letters testamentary, Ma’am,
We have already taken up our subjects in the testate with Branch 61.
proceedings.
Q: What is that? What kind of an animal is issuance of
 The scope of probate. letters testamentary? What is that? What do you file
it for?
 We have also taken up the types of probate.
A: A letter of testamentary, Ma’am, under the Black’s Law
 As well as the acquisition of jurisdiction of a probate
Dictionary, is filed by a person who wants to secure the
court.
possession of the estate, Ma’am.
Specifically, we are in principal testate proceeding. You have
Q: Are you sure? Do you know what you’re saying? Do
there the case of Maloles v Pierce (?). Briefly, the scope
you understand what you’re saying? Do you have an
of the pleadings when it is the testator himself who
idea on what you are saying? (Throwing shade Atty. Tiu
petitioned for the probate of his own will.
style LOL)
Q: In the case of Maloles, when the testator petitions
So you have here in Maloles, a testator, during his
for the probate of his own will in his lifetime, when
lifetime, petitioning for the probate of his own will.
will that proceeding terminate?
After it was probated, he died. What happened next?
A: Maam, the probate proceeding shall terminate upon the
A: After he died, Judge Fernando Gorospe of Branch 61 of
approval of the probate court of the project of partition and
the RTC of Makati granted the petition filed on the will (?).
granting the petition to close the proceedings and
After the probate, Ma’am, in April 3, 1996, petitioner here,
consequent issuance of the order of distribution directing the
claiming to be the only filed of Alicia, the sister of the
assets to the heirs in accordance to the adjudication in the
testator, filed a motion for distribution. On the other hand,
will.
private respondent Pacita, the executrix, filed a petition for
In the case of Malores, Ma’am, the probate proceeding the issuance of letters testamentary before Branch 61.
ended upon the issuance of the letters testamentary.
Thereafter, Judge Salvador Abad-Santos of Branch 65 issued
Q: So are you saying that even during the lifetime of an order appointing the respondent as the administrator.
the testator, the court will probate the will – while
There are actually two (2) issues in this case, Ma’am. The
the testator is still alive – and proceed to distribute
first is regarding the letters of testamentary; and the second
the property?
was as to the definition of “interested person”.
A: No, Ma’am.
As to the first issue, Ma’am, it was argued here …
Q: So when will the probate proceedings end, if it is (interrupted)
the testator himself, during his lifetime, who will
ATTY T: Okay, I’m not interested in the
petition for the probate of his own will?
arguments of the parties; I want to go
A: If it is the testator himself who probates his will, Ma’am, straight to the point. What should happen in
then a foundation must be a certificate of allowance. that case that you read after the will was
probated upon the petition of the testator
Q: What happens if he dies? What will now be the
himself during his lifetime, and then he died.
next step in order to implement his will?
What will happen after that?
A: In order to implement his will, Ma’am, his executor shall
Because we have said that there are two
file a petition for the issuance of letters testamentary.
kinds of probate, principal probate: one, filed
Q: In the same proceeding? by the testator himself during his lifetime;
and two, after his death.
Where will you file it, in the same court that issued
the certificate of allowance?

43
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
So if it is during his lifetime that his will was
probated, it ends upon the issuance of the
certificate of allowance. Because he can still
change his mind! You cannot proceed to the
distribution of the assets based on the
provisions of the will. Buhay pa ang testator!
Q: Now what happens if he dies, and the will has
been probated upon his instance? What will happen
now?
A: The Supreme Court ruled in this case, Ma’am, that there
was nothing else for Branch 61 to do except to give the
certificate of allowance of the will, pursuant to ____ Section
12 of the Rules of Court.
Q: There was a certificate of allowance before the
death of the testator! After that he died.
So ano na ngayon ang mangyayari? Is that the end of
it? Tapos na? Ano mangyayari sa will nya? Who will
make the first move now para ma-implement ang
will? This is procedure I’m asking here! So, what’s
gonna happen next?
A: After the will has been probated and allowed of the court,
Ma’am, there shall be a registration in the registry of deeds –
if there is still property involved. And after that there shall be
a hearing upon the principality of the will, Ma’am.
Q: What will happen?
A: After the death of the testator, Ma’am, the executor will
take over and will continue with the implementation of the
provisions … (interrupted)
Q: How?
A: By filing before the Court for the issuance of letters
testamentary.
Q: What will he file in court?
A: A motion for the issuance of letters testamentary.
Q: Are you sure?
A: However, in the case of Maloles, Ma’am, the Supreme
Court said that what was proper was a separate action
through a petition for the issuance of letters testamentary.
Q: Because?
A: Because in this case, Ma’am, the probate proceeding
ended upon the issuance of the certificate of allowance
because of the death of the testator. That ended there,
Ma’am. So the Supreme Court said that a separate action
was proper because … (interrupted)
Q: Separate action? This is a special proceeding!
A: A separate petition for letters of administration was
proper in this case.
ATTY T: ‘Kay, be careful with your
terminologies. Don’t say action when you are
44
referring to a special proceeding! Action is a
very technical term. Special proceeding is not
an action, remember that! Pag nakita ko yan
sa exam nyo, automatic mali ang sagot nyo!
The premise alone is wrong. You have to be
conscious of that.
Q: Compare that now in the case of Nicher v Nicher
(?) What does it say?
A: In the case of Nicher, Ma’am, the difference is that the
Supreme Court said that the petition for the issuance of
letters testamentary, Ma’am, was merely a continuance of
the original probate proceeding. It was not an initiatory
pleading but a mere continuance of the original petition for
the probate of the subject will.
Q: So do they have the same factual background with
Maloles?
A: No, Ma’am.
Q: No? Is it not that the testator petitioned for the
probate of his own will? Is it not that after the
probate of his own will he died?
A: Uh, yes, Ma’am. The testator initiated the petition for the
probate and later on he died. Then, it was continued. It was
Atty. Nogales who was issued letters testamentary and as an
executor, Ma’am.
Q: Okay, so why do you think there is a different
treatment here in Nicher as to the nature of the
proceedings for the issuance of letters testamentary
with that of Maloles? In the case of Maloles, there
was an issuance of the certificate of allowance, was
there?
A: There was none yet, Ma’am. Because Pacita here, the
executrix, filed for the motion for the issuance of the letters
testamentary before Branch 61 but later on moved to
withdraw. Such withdrawal was granted. And then filed it
with Branch 65.
Q: So which was the correct proceeding? The filing of
the petition or the filing of the motion for issuance of
letters testamentary?
A: The correct proceeding was the filing of the petition
before Branch 65.
Q: So when you say that the petition is considered a
separate proceeding – because the first proceeding
for the probate of the will has already been
terminated by the issuance of the certificate of
allowance – why was it that in Nicher, that petition or
separate proceeding does not require a certification
against forum shopping?
A: The Supreme Court said that, as a Rule, Revised Circular
No. 2891 and AC No. 494 of the Court require the CNFS for
all initiatory pleadings filed in court. However, the petition for
the issuance of letters testamentary is not an initiatory
pleading but a mere continuance of the original petition for
the probate of Dr. Nicher’s will. Hence, respondent’s failure
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
to include a CNFS in this petition for the issuance of letters
testamentary is not a ground for the outright dismissal of the
said petition.
Q: Isn’t that contrary to the ruling in Maloles?
A: As to the case, Ma’am, the petition for probate was filed
by Dr. De Santos, the testator himself, solely for the purpose
of authenticating his will. Upon allowance of his will, the
proceedings were terminated. On the other hand, Ma’am, the
petition for issuance of letters testamentary before Branch
65, which was filed by the executor, was for the purpose of
securing authority from the court to administer the estate
and put into effect the will of the testator. The estate
settlement proceedings commenced by the filing of the
petition terminates upon the distribution and delivery of the
legacies and devises to the persons named in the will.
Clearly, there is no identity between the two petitions before
Branch 61 and 65 nor was the ___ filed during the pendency
of the former case. Consequently, there was no forum
shopping.
Q: No, the issue here is: isn’t it contrary, the ruling in
Nicher that the petition is not an initiatory pleading –
does it not run counter to the ruling in Maloles which
says that the petition is treated as a separate
proceeding?
A: They are conflicting, Ma’am.
Q: So when is the filing of a motion for the issuance
of letters testamentary proper? And when is it not?
A: I believe the filing of the motion for issuance of letters
testamentary is proper when there is no issuance yet of the
certificate of allowance.
Q: How can you file a motion for the issuance of
letters testamentary when there is yet no certificate
of allowance? It is a condition sine qua non! It is a
condition precedent; you cannot ask for letters
testamentary without that certificate of allowance!
What is there to execute? There is no allowed will
yet!
A: If the petition for the issuance of letters testamentary is
included… Ay! Umm, if the…
Q: When is it proper for you to file a mere motion in
order for the issuance of letters testamentary in
probate proceedings? And when is it proper for you to
file a petition for the issuance of letters
testamentary? It’s there in Maloles!
A: The difference Ma’am is if the testator himself filed for the
petition as well as the issuance of certificate of allowance,
Ma’am.
ATTY T: If you are the one petitioning for the
probate of the will, obviously, you are asking
for the issuance of the certificate of
allowance! Because that is your proof that
you have your will already probated by the
court.
45
A: I mean if the petition for probate is accompanied by the
… seeking for letters testamentary, Ma’am.
ATTY T: How can you do that?! Buhay ka pa,
humihingi ka nan g letters testamentary if
you’re the petitioner-testator?! Isn’t that
absurd? Here you are, the testator, during
your lifetime, buhay na buhay ka pa, you ask
the court to probate the will that you made,
and you ask also the court to issue letters
testamentary?! How can that be? Why would
you ask the court to implement the provisions
of your will buhay ka pa? Bakit di ka nalang
nag donation, kung yan ang gusto mo!
Donate properties inter vivos?
That is why Maloles is very clear! It says
there that if it is the testator that petitions for
the probate of his own will during his lifetime,
the proceedings terminate upon the issuance
of the certificate of allowance. There can be
no distribution yet of his estate. And because
of that, you cannot ask the court to issue
letters testamentary, while the testator is still
alive! That would be illogical; that would be
absurd! Patayin mo muna ang testator bago
ka humingi ng letters testamentary! For as
long as he is alive, you cannot do that.
And that is why the Flores ruling says that
you have to file a separate petition for the
issuance of the letters testamentary after the
testator died.
Now, the executrix here filed a motion,
withdrew it and filed a separate petition.
Tama? Tama! The question is, when do you
ask for a letters testamentary through a mere
motion? You do that when the probate of the
will was initiated after the death of the
testator. Meaning to say, you only file a mere
motion after certificate of allowance, in a
petition that was filed after the death of the
testator.
Kasi there are two (2) types of probate here:
(1) during the lifetime of the testator, and (2)
after his death.
If it was filed after his death, and you get a
certificate of allowance, you only ask for
letters testamentary through a mere motion.
You don’t file a separate petition. Why?
Because the proceeding is continuous; it
doesn’t terminate upon the issuance of
certificate of allowance. Kasi patay na ang
testator from the start of the petition. Tuloy-
tuloy na ‘yan. So pagkatapos ng probate ng
will, the executrix or executor will
automatically file a motion for the issuance of
letters testamentary.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
But if it is the testator himself, during his
lifetime, who petitions for the probate of his
own will, it terminates upon the issuance of
the certificate of allowance. After he dies,
then the executor will file a petition for the
issuance of letters testamentary, in order to
implement the provisions of the will.
So you distinguish! Kasi magkaiba,
magkaibang pleading ang ifa-file mo sa court.
Ibang dokumento yan. And there is a reason
why there is that difference: because of the
nature of the proceedings. It’s very clear in
Maloles!
The common situation is you probate the will
after the testator dies. So tuloy-tuloy ‘yan.
Pagkatapos ng certificate of allowance, you
don’t file a petition for the issuance of letters
testamentary; just a mere motion.
But if it is the testator himself who
petitioned, during his lifetime, it terminates
upon the issuance of the certificate of
allowance. After he dies, then you file another
petition for the issuance of letters
testamentary.
Nicher tells you that when you file a separate
petition for the issuance of letters
testamentary, when the probate proceedings
was initiated by the testator himself during
his lifetime, and after his death – then in that
case, it is a mere continuation. Although the
proceeding is separate, it is a mere
continuation of a previous proceeding. And
because of that, we don’t need to include a
CNFS. The petition itself is not an initiatory
pleading. You only to file that petition so that
the court will continue with the next stage:
the implementation of the will. Of course, you
have to prove in that petition that the
testator has already died, and so on and so
forth. So you have to prove the jurisdictional
facts.
So take note of that difference.
Q: Who is obliged to deliver the will? Who must
deliver the will?
A: As provided in:
Rule 75 (PRODUCTION OF WILL; ALLOWANCE OF
WILL NECESSARY)
Section 2. Custodian of will to deliver. –. The person
who has custody of a will shall, within twenty (20) days after
he knows of the death of the testator, deliver the will to the
court having jurisdiction, or to the executor named in the
will.
Sec. 3. Executor to present will and accept or refuse
46
trust. - A person named as executor in a will shall, within
twenty (20) days after he knows of the death of the testator,
or within twenty (20) days after knows that he is named
executor if he obtained such knowledge after the death of
the testator, present such will to the court having
jurisdiction, unless the will has reached the court in any
other manner, and shall, within such period, signify to the
court in writing his acceptance of the trust or his refusal to
accept it.
ATTY T: Okay, so this is connected to the
Rules of Court provision on the filing of
petition for probate of a will which need not
require yet … (Clue! 3 words inaudible).
Precisely because we have this rule where the
court can require the person who has custody
of the will to deliver the will before the court.
Now, even if there is yet no petition filed in
court, it is the duty of whoever has custody of
that will to deliver it either in court or to the
executor within 20 days from knowledge of
the death.
The executor is also required to deliver the
will within 20 days from knowledge of death
of the testator, or from knowledge of his
designation, together with his acceptance or
refusal.
So these provisions here will tell you that it is
imperative to deliver the will the moment you
learn of the death of the testator.
Q: Suppose, you want to file a petition for the probate
of a will, and you don’t have a copy of the will. But
you have an idea that somebody has custody of it,
and you want that person to surrender the will before
you file a petition. Can you file a mandamus in order
to compel that person to deliver the will? Because as
a custodian, that person has a duty to deliver the will.
A: That is answered by the Supreme Court in the case of
(Keng something Chinese, sorry) where it held that in
order for the remedy of mandamus under Rule 65 to be
applicable, there must be no plain, speedy, and adequate
remedy in the ordinary course of law other than the remedy
of mandamus. The Supreme Court also provided in the case
that there are adequate remedies which provided by the
Rules, specifically Sections 2, 3, 4 and 5 of Rule 75 for
the production of the subject will.
Sec. 4. Custodian and executor subject to fine for
neglect. - A person who neglects any of the duties required
in the two last preceding sections without excuse satisfactory
to the court shall be fined not exceeding two thousand
pesos.
Sec. 5. Person retaining will may be committed. - A
person having custody of a will after the death of the
testator who neglects without reasonable cause to deliver
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
the same, when ordered so to do, to the court having
jurisdiction, may be committed to prison and there kept until
he delivers the will.
The presence of the said remedies, Ma’am, will make the
remedy of mandamus unavailable.
ATTY T: Filing a petition for the probate of the
will. The court’s reason reason there, is that it
is not really required that for you to file a
petition, you need to attach a copy. Just file
the petition! Alleged who has custody of it;
then compel that person to deliver it in the
family court, by asking court order to that
effect. And if that person refuses to comply,
then you apply the penalties. He can be
imprisoned until he produces the will. So that
is similar to contempt. In fact SC says it is
___ contempt (not sure ‘cause naay niubo).
Because in indirect contempt, di naman
automatic na ikukulong ka eh! Or
disobedience of an order of the court.
In this case, pag hindi mo prinoduce, pwede
kang ikulong! So it’s a much improved version
of indirect contempt. Kasi automatic
ikukulong ka na! Whereas, if you follow the
rule on indirect contempt or disobedience of
an order of the court, kailangan mo pa ng
notice and hearing, di ka basta-bastang
ikukulong.
So here, you have that coercive powers of the
court to invoke when a person refuses to
deliver the will. So no need for you to file a
petition for mandamus. Mandamus is not
available as a remedy, because there is
another plain, speedy and adequate remedy.
Q: So what should you allege in your petition for
probate?
A: The contents in the petition is provided in Section 2 of
Rule 76:
Sec. 2. Contents of petition. - 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.
47
Q: What happens if the petition is defective?
A: (Continuation of Sec 2, Rule 76)
But no defect in the petition shall render void the allowance
of the will, or the issuance of letters testamentary or of
administration with the will annexed.
Q: Okay, we said that the petition of probate may or
may not include a copy of the will. Supposing, that
you attach a mere translation of the will. Is that
allowed?
A: Yes, Ma’am, that is allowed. Provided, that the later on
the will is presented as evidence.
Q: So a mere translation is enough?
A: A mere translation can be attached, Ma’am, but the will
must be attached in the later proceeding.
Q: Let’s go to the notice of hearing. You have now,
the petition filed in court, what will happen after the
filing of the petition.
A: After the filing of the petition, under Rule 76 Sec 3:
Sec. 3. 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 (3) 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.
Sec. 4. Heirs, devisees, legatees, and executors to be
notified by mail or personally. - The court shall also
cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other
known heirs, legatees, and devisees of the testator resident
in the Philippines at their places of residence, and deposited
in the post office with the postage thereon prepaid at least
twenty (20) days before the hearing, if such places of
residence be known. A copy of the notice must in like
manner be mailed to the person named as executor, if he be
not be petitioner; also, to any person named as co-executor
not petitioning, if their places of residence be known.
Personal service of copies of the notice at least ten (10) days
before the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
ATTY T: So after filing of the petition, the
court now will set the petition for hearing.
The order setting the case for hearing shall be
published. So you have here the publication
of the order setting the case for hearing.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Q: Where do you publish it? What kind of newspaper? was not given personal notice of that schedule of
hearing for the probate of the will?
A: Under Section 3, Ma’am, it should be a newspaper of
general circulation. A: The excluded heirs, Ma’am, may ask the court to annul
the allowance of the will.
Q: For how long?
Q: So what is the effect if there is failure to notify an
A: 3 weeks successively.
heir who was mentioned in the will?
ATTY T: Take note that this publication
A: It renders the proceedings void, Ma’am.
requirement is not necessary. It is dispensed
with if the testator himself petitions for the Q: What does the rule say?
probate of his own will.
For you to be an heir, devisee, legatee to be entitled
Q: Now aside from publication, you need to have to personal notice, what is the requirement?
personal notice. Meaning, a copy of the order will be
A: It is required under the law that their place of residence
personally served… on whom?
must be known.
A: Section 4 provides that it shall be furnished to the heirs,
ATTY T: ‘Kay, it must be mentioned where
devisees, legatees, and executors, Ma’am.
they live. First, you have to identify who are
Q: What if it is the testator himself who petitions for these persons; Second, where do they live,
the probate of his own will during his lifetime? Do their addresses? That is why it says there, “at
you comply with the same requirement? their residence, if known.”
A: Under the last paragraph of Section 4, Ma’am, it provides Q: What is the purpose of publication?
that: “[i]f the testator asks for the allowance of his own will,
A: The purpose of publication, Ma’am, is to bind parties that
notice shall be sent only to his compulsory heirs.”
are not known and are interested in the case.
ATTY T: Okay, so that is very clear. You have a
Q: Why do you have publication when you have to
separate rule for publication and service of
comply with personal notice? Isn’t that a
notice, if it is the testator who petitions for the
redundancy?
probate of his own will:
A: No, Ma’am. As mentioned earlier, with respect to personal
 There is no need for publication, and
notice, it applies to those who are known and identified in
 Only the compulsory heirs are the will. With respect to publication, it applies to those who
personally notified. are not known but are also interested parties.
But if the petition is filed after his death, then Q: Suppose the person is identified not in the will but
you need to have publication for 3 consecutive in the petition? Will that person be entitled to
weeks in a newspaper of general circulation in personal notice?
the province where the estate is located. And
A: Yes, Ma’am.
you need to have the personal notice served on
the heirs, legatees, and devisees. Q: So what is now the purpose of personal notice,
when there is publication already? Do they serve the
Q: Now, suppose there are heirs who are not
same purpose – the publication and personal notice –
mentioned in the petition. Do they still have to be
such that compliance with one will dispense with the
notified?
other?
A: No, Ma’am, by reason of the publication. It already binds
A: No, Ma’am.
the parties that are not known and are interested in the
case, being that a probate is an in rem proceeding. Q: So what are the purposes of publication and
personal notice? Why do you need to comply with
Q: Suppose that there are heirs who are mentioned in
both requirements?
the will but were not given personal notice. What is
the effect? A: Publication, Ma’am, is for purposes of jurisdiction. While
personal notice is only for convenience.
A: It will not be binding upon these heirs.
Q: Are you sure?? For convenience?? Okay let’s go to
Q: What happens to the proceedings?
the case of Alaban vs. CA.
A: The heirs will now be considered as excluded heirs, and
A: The facts are as follows:
the law provides for a remedy.
The respondent, Francsisco Provido, filed a petition for the
Q: What happens to the proceedings? Will it affect
probate of the last will and testament of the decedent. The
the proceedings, that a person mentioned in the will

48
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
respondent alleged that he was the heir of the decedent, and
the executor as named in the will.
The Court here allowed the probate of the will and the
issuance of letters testamentary to respondent. 4 months
thereafter, the petitioners in this case filed a motion for the
reopening of the probate proceedings. They filed an
opposition to the allowance of the will of the decedent,
wherein they claimed that there was a defect in the
publication and notice to the heirs.
The RTC here denied the petitioner’s motion. (Interrupted)
Q: Okay, let’s simplify. Who are the heirs here?
A: The petitioners.
Q: Were they given notice? Were they notified of the
probate proceedings?
A: They alleged that there was no notice, Ma’am.
Q: Were they mentioned in the will?
A: No, Ma’am.
Q: Were they mentioned in the petition?
A: No, Ma’am.
Q. It is a mandatory requirement or mere procedural
convenience?
A. It would depend if the parties know the addresses of the
persons to be notified. If there is knowledge then it would
become mandatory. If the addresses is not known, the
personal notice would be mere procedural convenience and
not mandatory.
Q. In the case of Alaban, what was the SC ruling as to
personal notice?
A. It was just a mere procedural convenience because if the
persons claiming are not compulsory heirs or testamentary
heirs, there is no right to be notified thereof. It becomes a
matter of procedure.
Q. In the case of Aranz, is the personal notice a
jurisdictional requirement or a mere procedural
requirement?
A. The notice is mandatory because if the addresses or
residences are known, publication is not enough. Personal
notice must be given.
Q. Is there a conflict between Alaban and Aranz?
A. No. Once the addresses of the parties are known, it
becomes mandatory. If the address are not known, it
becomes merely a procedural convenience.
(From 2014 TSN)
ATTY. TIU: Now, you have to consider that
personal notice is given to designated or
known resident heirs, legatees and devisees.
You just do not consider whether the address
are known because the rules require that if
49
the heirs are known, you have to give
personal notice to them at their addresses, if
known.
In the case of Alaban, there are persons who
were not mentioned in the will and the ruling
here is that personal notice to persons not
mentioned in the will or in the petition is a
matter of procedural convenience and not a
jurisdictional requisite.
Meaning to say, if the will mentions the heirs
and their addresses and if you mentioned the
heirs and their addresses in the petition, then
all these persons must be given personal
notice. If you mentioned the heirs in the
petition and there are additional heirs
mentioned in the will attached to the petition,
then all of these heirs must be given personal
notice.
Both the heirs mentioned in the petition as
well as those mentioned in the will must be
given personal notice because failure to give
personal notice is not a mere procedural
convenience; it is a jurisdictional
requirement. Why? Because the heirs are
known.
There is no excuse for you not to give
personal notice. But if there are heirs that
would surface and were not given personal
notices and they were not mentioned in the
will nor were they mentioned in the petition,
then personal notice is a mere procedural
convenience. Because you are not supposed
to know these heirs until they have surface.
Your knowledge is limited to what is stated in
the petition as well as the contents of the
will.
But if these persons are mentioned in the will,
mentioned in the petition, it is inexcusable for
you not to cause the service of personal
notice. In that sense, personal notice is not a
mere procedural convenience, it becomes
mandatory and jurisdicitional. That is how
you reconcile Alaban and Araniz.
Q. You have the probate petition, now, who can
oppose?
A. It is provided of Acain vs. IAC:
From FT: In order that a person may be allowed to
intervene in a probate proceeding he must have an
interest in the estate, or in the will, or in the
property to be affected by it either as executor or as
a claimant of the estate and an interested party is
one who would be benefited by the estate such as
an heir or one who has a claim against the estate
like a creditor
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q. So when you oppose the probate of the will, what
do you allege so that you can have standing in court?
A. It is provided under Section 10 of Rule 76
Section 10. Contestant file grounds of contest. Anyone
appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy thereof
on the petitioner and other parties interested in the estate.
Q. Can anybody just oppose?
A. No ma’am. Only the interested parties are allowed to
oppose.
Q. Who is an interested party?
A. It is provided in the case of Maloles vs. Phillips:
From FT: Under this provision (Rule 79, Section 1),
it has been held that an "interested person" is one
who would be benefited by the estate, such as an
heir, or one who has a claim against the estate,
such as a creditor, and whose interest is material
and direct, not merely incidental or contingent.
Even if petitioner is the nearest next of kin of Dr. De
Santos, he cannot be considered an "heir" of the
testator. It is a fundamental rule of testamentary
succession that one who has no compulsory or
forced heirs may dispose of his entire estate by will
(842 of NCC).
Petitioner, as nephew of the testator, is not a
compulsory heir who may have been preterated in
the testator's will.
Nor does he have any right to intervene in the
settlement proceedings based on his allegation that
he is a creditor of the deceased. Since the testator
instituted or named an executor in his will, it is
incumbent upon the Court to respect the desires of
the testator.
Q. What is the difference between Maloles and Acain?
A. In Acain, the will is not valid. While in Maloles, the will is
valid therefore it should be respected.
(From 2014 TSN)
ATTY T: You do not generalize. These two
cases are different. In the case of Acain, there
is preterition, In cases of preterition,
obviously, the one who may oppose the
probate of the will is the preterited heir. The
preterited heir is obviously an interested
party.
Even if the oppositor is not the preterited
heir, for as long as there is preterition, then
any heir for that matter, can oppose. Because
the mere fact of preteriton will nullify the will
itself. In this case, even if it is only the
spouse who opposes the will, she can oppose
because she has an interest in the estate that
50
is the general rule, you have an interest in the
estate. You are benefited from the estate, and
not simply by the disallowance o the will.
In the case of Maloles, there was a probate of
the will during the lifetime of the testator and
there are no compulsory heirs involved. The
testator has no issue, no children no spouse,
again that is a peculiar situation, the nephew
as a collateral heir can benefit from the
estate, but the will was already probated
during the lifetime of the testator, the will is
therefore extrinsically valid and cannot be
nullified.
So all the dispositions made therein are
considered valid unless you can show intrinsic
invalidity of the will. There is none, and
because of that the will was upheld as
opposed to the nephew.
Why? Because of the validity of the will, the
nephew has no chance of
benefiting/inheriting from the estate. He
cannot benefit from the estate at all. Because
a testator who has no compulsory heirs can
dispose of his estate in its entirety to anyone
he pleases, by will.
That’s what happened in Maloles. The will
was declared valid, the nephew had no
interest in the estate.
The General Rule: If a person has an interest
in the estate. You can oppose
In the case of Maloles, there is no more
chance and no more interest because there is
a valid will. He had no personality to oppose
because you cannot benefit.
Q. Can a lawyer be considered an interested party in
the estate on the ground that he rendered services
and his payment be on contingency basis?
A. No. The lawyer does not have an interest over the estate.
So he cannot intervene in the proceedings.
Q. What happened in the case of Leviste vs. CA?
A. The payment of his fees is contingent and dependent
upon the successful probate of the holographic will. Since the
petition for probate was dismissed by the lower court, the
contingency did not occur. Attorney Leviste is not entitled to
his fee.
Petitioner was not a party to the probate proceeding in the
lower court. He 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.”
Q. Can the lawyer intervene?
A. If the circumstances would be different such as that the
lawyer is entitled to fixed fees, not on contingent basis.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(From 2014 TSN)
ATTY T: He would have. The only problem
here is that there was dismissal of the
petition for probate. And with that, the heir
had lost the right to inherit.
But in this case, had there been a fixed fee
arrangement and not a contingency fee
arrangement and had there been no
withdrawal of the petition for probate,
regardless of the outcome of the case, Article
1052 would have allowed the lawyer to
recover as a creditor of the repudiating heir.
The main reason here why he was not
allowed to recover was because it was
contingency fee arrangement. And second,
with the dismissal of the petition for probate,
the heir had nothing to inherit, even if there
was repudiation of the inheritance.
Q. If you are an oppositor, how do you oppose?
A. Generally, the written opposition stating the grounds
therefore should be filed within the time stated in the notice.
If there is a notice issued by the court, it should indicate
when the oppositor may hear and make known their
opposition. If there is no period, the opposition should be
filed at least before the date of the scheduled hearing of the
petition.
Q. What happens if the will you want to be probated
is lost or destroyed? Can you still have it probated?
A. It is provided under Section 6 or Rules 76
ATTY T: It is very clear in the provision. Aside
from the execution and validity of the will, it
must also be existent at the time of the
testator’s death or if it is no longer there at
the time of the testator’s death, it must be
established that it was fraudulently or
accidentally destroyed during the lifetime of
the deceased, without his knowledge. For you
to be able to prove a lost or destroyed will,
certainly, you have to prove the fact of loss.
Q. What is the assurance of the court that the said
destruction is not due to revocation?
A. You have to show that the will existed at the time of the
death of the testator. If you cannot show that anymore then
you have to establish that it was lost or destroyed by fraud
or accident during the lifetime of the testator, without his
knowledge.
You do not prove that it was NOT fraudulently or accidentally
lost or destroyed, without his knowledge. Meaning,
somebody else took his will without the knowledge of the
testator. If you establish that it was destroyed by the
testator himself, you cannot say that it was lost or destroyed
under Section 6 that can still be probated. You are showing
in fact the revocation of the will.
51
Q. What proof that has to be presented?
A. It is provided under Section 12
Rule 76
Section 12. Proof where testator petitions for allowance of
holographic will. Where the testator himself petitions for the
probate of his holographic will and no contest is filed, the
fact that the affirms that the holographic will and the
signature are in his own handwriting, shall be sufficient
evidence of the genuineness and due execution thereof. If
the holographic will is contested, the burden of disproving
the genuineness and due execution thereof shall be on the
contestant. The testator to rebut the evidence for the
contestant.
His own affirmation of his signature and handwriting
is enough.
Q. If the will is contested, what proof should be
presented?
A. It is provided under Section 11
Rule 76
Section 11. 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. If all or some of such
witnesses are present in the Philippines but outside the
province where the will has been filed, their deposition must
be taken. If any or all of them testify against the due
execution of the will, or do not remember having attested to
it, or are otherwise of doubtful credibility, the will may
nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the
manner required by law.
If a holographic will is contested, the same shall be allowed if
at least three (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 any
competent witnesses, and if the court deem it necessary,
expert testimony may be resorted to.
January 26, 2016 (SRAbapo)
Q: What are the grounds for the disallowance of will?
A: The grounds are provided under Section 9 of Rule 76.
Section 9. Grounds for disallowing will. — The will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(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.
Q: What is meant by fraud? (Pertaining to paragraph e)
A. Fraud is defined in the case of Ortega vs. Valmonte
From FT: Fraud “is a trick, secret device, false
statement, or pretense, by which the subject of it is
cheated. It may be of such character that the
testator is misled or deceived as to the nature or
contents of the document which he executes, or it
may relate to some extrinsic fact, in consequence of
the deception regarding which the testator is led to
make a certain will which, but for the fraud, he
would not have made.”
Q. Given that is the definition of fraud, was there any
fraud in the case of Ortega?
A. There is no fraud. The SC stressed that the party
challenging the will bears the burden of proving the
existence of fraud at the time of its execution. The burden to
show otherwise shifts to the proponent of the will only upon
a showing of credible evidence of fraud.
Unfortunately in this case, other than the self-serving
allegations of petitioner, no evidence of fraud was ever
presented.
Q. Was there fraud when there is variance as to the
dates of execution and notarization of the will?
A. The Supreme Court ruled that such variance does not
constitute fraud as it was the testator who asked for the
change of the dates.
Q. If the testator is found to be of unsound mind, and
is proven, what happens to the will?
A. The will shall not be permitted.
Q. What is the reckoning point for the unsoundness of
the mind?
A. At the time of the execution of the will.
Q. What if he becomes insane after?
A. It would still be valid. Under the laws on Succession, the
soundness of the mind is determined at the time of the
execution of the will.
Q. How do you define the soundness of the mind?
A. Under the law on succession, there is presumption of
soundness of the mind of the testator.
52
Q. What does soundness of the mind means?
A. Under the Civil Code:
Art. 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act. (n)
Q. What if the testator is forgetful?
A. In the case of Baltazar vs. Laxa, the Supreme Court
held that the state of being forgetful does not necessarily
render the person’s mind unsound. Forgetfulness is different
from unsound mind.
In this case, being forgetful of the testator is not at all times,
but of some intermittent periods.
Q. Who has the burden of proof?
A. Provided in the Civil Code…
Art. 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind
at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to
be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval.
(n)
Q. Does the law of demurrer apply? (In the case)
A. No
RULE 33
Section 1. Demurrer to evidence. — After the plaintiff has
completed the presentation of his evidence, the defendant
may move for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. If his
motion is denied he shall have the right to present evidence.
If the motion is granted but on appeal the order of dismissal
is reversed he shall be deemed to have waived the right to
present evidence.
Q. So does it apply now in the case?
A. No. Because the condition does not apply in the present
case so the oppositor can still present evidence even though
the case is appealed. In fact, the CA here reversed the ruling
of the RTC.
Q. Why was the ruling that way? What was the
reason for the denial of probate?
Was the will probated here by the trial court?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
A. Because only one of the witnesses was presented to the
court and be able to testify that it was indeed the
handwriting of the testator as shown in the holographic will.
Q. What was the reason for the denial of the probate?
ATTY T: So obviously you have here a
contested holographic will.
What is the rule if the holographic will is contested?
How many witnesses are needed?
A. 3 witnesses.
Q. How many witnesses are there in the case?
A. 6 ma’am
Q. Does that not comply with the requirement?
A. No. It is stated in the rules that it is necessary that the
witnesses testify that they know the handwriting of the
testator. It is true in a holographic will, it being one entirely
written by the testator.
Q. So where there are 6 witnesses and only 3
witnesses are only required, yet the will is denied
probate. What was the reason?
A. The court found insufficient evidence.
Q. What happened on Appeal?
A. The ruling of the trial court was reversed. The CA said
that the parties are now precluded from presenting evidence,
and since the ruling of the trial court was reversed, the will
shall now be deemed probated.
Q. Was the CA correct?
A. The SC said No.
ATTY T: The grant of demurrer and the
consequences of reversal of such demurrer on
appeal in fact favor testacy. That the CA
reversed the trial court decision and thus
upholding the validity of the will. So why was
the CA not correct?
A. Because there must be an exhaustive presentation of
evidence.
ATTY T: Even if you have a reversal of the
grant demurrer of evidence, one cannot avail
the consequences of such reversal in a
probate proceeding because you have still
required to present proof supporting your
opposition to the probate of the will.
In other words, the oppositor are still given
their day in court to prove their grounds to
opposition.
From 2014 TSN:
ATTY T: Notwithstanding the fact that there
are discrepancies on the signatures and
handwriting presented before the court, here
53
the Supreme Court required the oppositor to
present their evidence. So instead of relying
on the consequence of demurrer that once a
judgment on demurrer is reversed on appeal,
then the oppositor will still have a chance to
present evidence.
Again, this is where you can see the
preference of the law on testacy over
intestacy. So, the grounds for the
disallowance of the will should be fully
ventilated. And, supported by evidence before
the court can disallow.
Q. What happens after the will has been probated?
A. There shall be issuance of the certificate of allowance.
Rule 76
Section 13. Certificate of allowance attached to prove will.
To be recorded in the Office of Register of Deeds. — 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 its allowance, signed by the judge, and attested
by the seal of the court shall be attached to the will and the
will and certificate filed and recorded by the clerk. Attested
copies of the will devising real estate and of certificate of
allowance thereof, shall be recorded in the register of deeds
of the province in which the lands lie.
Q. What is this certificate of allowance?
A. Is a certificate issued by the court after proof was taken,
proving that the will was duly executed.
Q. Who issues the COA? What happens after the COA
has been issued?
A. Sec. 13 provides that “a certificate of its allowance, signed
by the judge, and attested by the seal of the court shall be
attached to the will and the will and certificate filed and
recorded by the clerk. Attested copies of the will devising
real estate and of certificate of allowance thereof, shall be
recorded in the register of deeds of the province in which the
lands lie.”
REPROBATE
Rule 77
Q. What is the purpose of the reprobate of a will?
A. To give effect to the will of a testator already probated
abroad.
Q. What happens in the reprobate of a will?
A. In the probate proceeding of a will, in case it was already
probated abroad, it will subject to restrictions of the courts of
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
the Philippines wherein its due execution with respect to the
national law of the testator will be examined.
Q. So are you saying that you have to repeat the
procedure of probate?
A. No. But the Philippine courts cannot take judicial notice of
foreign laws. So in these circumstances, the will is to be
tested against the foreign law of the testator. So the foreign
law has to be proven in the Philippine courts.
Q. What should be determined in the reprobate of
wills?
A. As enumerated in the case of Perez vs. Tolete:
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 will in accordance with the
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
Q. Isn’t it sufficient that the foreign court decree be
presented?
A. Based on the Rules of Evidence, the mere presentation of
foreign court decree is insufficient.
Q. What can be reprobated?
A. Those will executed by foreign nationals with properties in
the Philippines and which have already been probated
abroad.
Q. So you have Filipino executing wills abroad, should
their will be reprobated?
A. No ma’am. Because in that case, it will be probated in
courts in the Philippines. It will not be probated in the foreign
courts, hence reprobate would be unnecessary.
ATTY T: So what does it take to reprobate your
will?
1. It has already been probated abroad;
2. There are properties located in the
Philippines
Rule 77 only applies if the will has already been
reprobated abroad and you want to give it effect
here in the Philippines.
Q. So do you have to repeat the procedure?
A. No. Simply present the will and prove that such will is
already probated in accordance with the foreign laws. Simply
put, reprobate means re-authenticated.
54
Q. Is there an exception to the rule that a foreign will
has to undergo reprobate?
A. It is when the testator has no properties in the Philippines
(obviously)
Q. What is the will is subject to a compromise
agreement? Does it have to undergo reprobate?
A. Yes as ruled in Roberts vs Leonidas
The surviving spouse entered in a settlement. The SC
decided this would be anomalous since the testator died
testate, so there should have been a reprobate of a will,
regardless of whatever agreement they may have entered to
abroad, said will must still be probated here.
Q. What is the notice requirement?
A. Under Rule 77, Section 2
Section 2. Notice of hearing for allowance. — 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 be given as in case of an original will presented for
allowance.
Reprobate notice requirement follows the rule of notice in
regular probate proceedings.
Q. In the case of Perez vs. Tolete, was their
compliance of the notice requirement?
A. No, as the sisters of the testator’s husband were not able
to participate. Being interested parties, they should have
properly notified.
Q. Are they mentioned in the will?
A. No since in the will of the spouses, they only refereed to
each other as heirs.
Q. So why is it that the collateral relatives entitled to
notice?
A. Because the probate of the will could be resolved without
touching the fact that the petitioner is the sole heir of the
wife and she does not consider herself as the sole heir of the
husband. She failed to notify the heirs of the husband in
filing of the proceedings.
Section 2 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 requires publication and notice by mail or personally to
the known heirs, legatees, and devisees of the testator
resident in the Philippines, and to the executor, if he is not
the petitioner, are required.
ATTY T: The collateral relatives are intestate
heirs in case the will be declared invalid or be
denied probate. Such, is sufficient to classify
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
them as interested parties, warranting them
to be served with notice.
Q. In this case, were all required foreign laws
presented?
A. The New York, specifically, was not presented.
Q. So how do you prove foreign law?
A. It is provided under Sec. 24, Rule 132
RULES OF EVIDENCE
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.
Q. What kind of law are we talking about here? Is it
procedural or substantive?
A. Both procedural and substantive laws have to be
presented
Q. So in this case, what happened when there is
failure to present proof of foreign law, does that
mean that the will should be denied probate or
reprobate?
A. The failure to present proof does not automatically result
to dismissal. The SC remanded the case to the trial court to
As to Ancheta vs. Dalaygon
allow the petitioner to present proof of foreign law.
Q. Why not take judicial notice?
A. As a general rule, courts cannot take judicial notice. In
order for our courts to take judicial notice, there must be
proof of foreign law.
Exception:
IF the SC has already taken judicial notice of such foreign
laws in another case, the foreign law may be taken
cognizance by the court.
Q. Is there a particular legal basis as to the
requirement of presenting proof of foreign law?
A. Article 1039 of the Civil Code further provides that
“capacity to succeed is governed by the law of the nation of
the decedent.”
Q. How about extrinsic validity?
A. It is provided under Article 816 of the Civil Code
From 2014 TSN:
55
ATTY T: New York or Philippine Law, why
would you apply Philippine law when the will
is executed abroad. Doesn’t that support the
application of the processual presumption
such that in default of any proof of foreign
law you will apply foreign law in default?
Which was precisely what the trial court did.
According to him, denied reprobate, applying
processual presumption, that the will must
conform to the formalities required by
Philippine law, which required 3 witnesses,
dineny nya ang probate.
So meron bang conflict dito, meron bang
inconsistency dito? Do we or do we not apply
the processual presumption?
Kung di mo naprove ang foreign law,
dalawang options ka na, either you take
judicial notice of that foreign law or you apply
the processual presumption? Which is which?
Obviously in the case of Perez vs. Tolete, it
remanded the case to the lower court for
reception of evidence for the foreign law. So
pampagulo lang si Perez vs Tolete.
Talagang walang sinabi dyan categorically,
that you apply processual presumption or
judicial notice. Because the dispositive
portion said that ibalik sa trial court to prove
the foreign law.
What Perez vs. Tolete tells you is that you can
liberalize the rule in order to give way to the
proving of the foreign law, you need to give
much leeway for the parties to present the
foreign law.
ATTY T: Article 816 speaks of formality that
will refer to lex sitae, the law of the place
where the instrument is executed, you follow
those formalities.
In the absence of proof, the processual
presumption applies. The problem is if it does
not conform to our laws here, your reprobate
proceedings would be denied. That is why the
best option here is really to prove the foreign
law.
In the case of Ancheta, he presumed that the
foreign law is the same as foreign law
because it favors him, the client will get more
by way of sharing of the estate if Philippine
law is applied.
The SC said NO! Because foreign laws have
been part of the case, we’d rather take
judicial notice of this. The court did not apply
presumption of processual presumption
because the law of Maryland has been part of
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
the records of the case. Take note that in
Ancheta, the SC cited another Civil Code
provision which would somehow neutralize
the provision 816. So, nag-uumpugan na tong
dalawa.
Art 15 Real property as well as personal
property is subject to the law where it is
situated. However, intestate and
testamentary succession in respect to the
order of succession, amount of successional
rights and the intrinsic validity of the
testamentary provision shall be regulated by
the national law of the person whose
succession is under consideration regardless
of the nature of the property and regardless
where said property is found.
This provision absolutely prohibits the
application of processual presumption. Siguro
when it comes to reprobate on the extrinsic
validity of the will, pwede pa tayong mag
processual presumption dyan, by virtue of
Art. 816, pwede pa natin yang argue. But
when it comes to give effect to the provisions
of the will, the intrinsic validity of the will
which is the MAIN issue in the case of
Ancheta, there is no room for the application
of the processual presumption by virtue of
Article 15.
Very clear ang article 15. When it comes to
successional rights, intrinsic validity, it’s a
NO-NO to apply processual presumption that
is why the SC opted to take judicial notice of
the law of Maryland. After all, it is already
part of the records of the case.
It is unforgivable for the SC to allow the
distribution of the estate in accordance of
Philippine Law, when the law of the state of
Maryland, conflicts with how the estate
should be divided. Remember there are 2
wills involved here, the will of Audrey and the
will of Richard, Si Audrey nagpamana ka
Richard, si Richard naman nagpamana sa
kanyang second wife, but applying the law of
Maryland, one heir is favored than the other,
that is okay. Here, the lawyer wants to apply
processual presumption because he wants
the distribution to be even.
Yung processual presumption na sinasabi
natin, pwede pa siguro sa extrinsic validity of
the will o yung formalities niya. But,
pagdating sa intrinsic validity, di na pwede,
you have to apply what the foreign law says.
That is the reason why you need not only
prove the formalities, but also the laws
governing the intrinsic validity of the will.
56
Especially if it is in conflict of the Philippine
laws, otherwise magkaka-problema.
In a reprobate proceeding, the appointed is
the ancillary administrator. Abroad, it is the
principal administrator. There will be an
ancillary administrator if the will did not
specify who will be executor or administrator.
It is going to be an ancillary administrator
with a will annexed. If it is specified who will
be the executor in the Philippines, then that
person will be issued letters testamentary
and he will be considered an ancillary
executor.
Q. So what happens after will be allowed?
A. It is provided in Sec. 3 of Rule 77
Section 3. When will allowed, and effect thereof. — If it
appears at the hearing that the will should be allowed in the
Philippines, the 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 proves and allowed in such court.
So it’s the same as if the will has been originally been
probated here. There can be the issuance of letters
testamentary or administration with the will
annexed.
Q. So what is the function of the ancillary
administrator?
A. Provided under Section 4
Section 4. Estate, how administered. — 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 of administration, shall extend to all the
estate of the testator in 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.
The same thing, there would be certificate of
allowance, there will be letters testamentary, etc etc.
There will be recording, etc. Take note that the letters
testamentary (with a will annexed) will only be
covering property located in the Philippines. It has to
be only within the Philippines.
INTESTATE PROCEEDINGS
Rule 79
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q. Who may file for a petition for an intestate
proceeding?
A. As ruled in Acain vs. Maloles: Any interested person or
persons affected by the distribution of estate of the
decedent. Who are the heirs, the creditors are also
considered as interested persons. Whoever can oppose the
probate of the will, can petition for the issuance of letters of
administration, or intestate proceedings.
Q. How to commence a petition for intestate
proceeding? What is the form required?
A. It is provided under Sec. 1 of Rule 79
RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
PETITION AND CONTEST FOR LETTERS OF
ADMINISTRATION
Section 1. Opposition to issuance of letters testamentary.
Simultaneous petition for administration. — Any person
interested in a will may state in writing the grounds why
letters testamentary should not issue to the persons named
therein as executors, or any of them, and the court, after
hearing upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the time, be filed for letters of
administration with the will annexed.
From 2014 TSN:
You call it for petition for issuance of letters of
Administration. If there is a will, it will be called as petition
for the probate of the will, pag na-probate na iyan, then
petition for issuance of letters of administration, if the
testator is the one who petitioned for the probate of his will.
If not, it is a mere motion for issuance of letters of
administration, i-continue lang yung process. In order for you
to implement the provisions of the will, the executor should
file for the issuance of letters testamentary kapag may will.
Kung walang will, diretso ka na. Petition for Issuance of
Letters of Administration.
Supposing there’s a will, there is no executor named, then it
is petition for issuance of letters of administration with a will
annexed. Depende yan sa circumstances. And then, if there
is a probate proceeding and you are the oppositor, then you
might as well ask for that letters of administration in the
same proceeding. What is now the caption? Opposition with
Petition for the Issuance of Letters of Administration. So you
commence an intestate proceeding via an opposition for the
probate.
Q. So what are the contents of the petition?
A. It is provided under Sec. 2
Section 2. Contents of petition for letters of administration.
— A petition for letters of administration must be filed by an
interested person and must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
57
(b) The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the decedent;
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the issuance of
letters of administration.
Q. If you ask for the issuance of letters of
administration, is it required that you are the one to
be appointed as administrator?
A. No. The one who petitions for the letters of administration
need not be the one applying for the administration. What is
important is that the person appointed has interest in the
administration.
ATTY T: Pwede kang mag-nominate lang ng
ibang tao. What is important is interested
person ang nag-petition. The one who can be
benefited from the estate. Yang tao yan has
the personality to file the petition but it does
not mean that he should be the one who will
be the administrator of the estate. He can
nominate.
Also, a common law wife may file for an
intestate proceeding, even a concubine
amidst the prohibition as to testamentary
disposition to them. They may file an
intestate proceeding as an interested party,
not as an heir, but a co-owner of the
properties.
ATTY T: In cases of preterition, the one
preterated may automatically ask for the
letters of administration. Take note that
preterition results to intestacy, and those
persons named in the will which are not
compulsory heirs may lose standing in the
intestate proceeding.
Kapag nakalagay sa will kay collateral
relatives and a compulsory relative suddenly
appears, automatically in the intestacy
proceeding the collateral relatives lose
standing as to the inheritance. That was the
ruling of the Supreme Court in Acain case.
In Maloles case, the nephew not being a
compulsory heir in the testamentary
succession, as such he is not an interested
person. Here, the will was not invalidated,
thus a compulsory heir is not an interested
party. Only a compulsory heir preterited may
file.
February 2, 2016 (AC)
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
We are already in the topic of intestate proceeding –
who may file petition.
Q: Can a lawyer become on a contingent fee basis be
a party to an intestate proceeding?
S: No. It was ruled in the case of Leviste vs. CA.
It was held that Atty. Leviste was not a creditor of the client
here. Since the petition of probate was dismissed, the
contingent fee did not arise.
Q: Isn’t it the claim of Leviste here is that he was a
creditor?
ATTY T: You have here a party who has no direct
interest in the case.
From the full text: Petitioner was not a party to the
probate proceeding in the lower court. He 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. In Paras vs.
Narciso, 35 Phil. 244, We had occasion to rule that
one who is only indirectly interested in a will may
not interfere in its probate.
Q: You have said that there are two ways to initiate
settlement for intestate proceeding. What are these
two?
S: First is to file opposition to the issuance for letters for
testamentary and the second is to file petition for letters of
administration.
Q: If you are going to file a petition for letters of
administration, what must be alleged?
S: It is stated in Section 2, Rule 79.
Section 2. Contents of petition for letters of administration.
— A petition for letters of administration must be filed by an
interested person and must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the decedent;
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the issuance of
letters of administration.
So you have to allege the heirs and the creditors in
your petition and also the gross value of the estate as
well as the properties belonging to the estate.
Q: Must the petitioner be the one who will be issued
the letters of administration?
58
S: Not necessarily Ma’am.
Q: What happens after the filing of the petition?
S: The next is: The court will set the time for hearing and the
notice thereof shall be given to the interested parties.
Q: How is the notice given?
S: Section 3 and 4 of Rule 79.
Rule 79; Section 3. Court to set time for hearing. Notice
thereof. — When a petition for letters of administration is
filed in the court having jurisdiction, such court shall fix a
time and place for hearing the petition, and shall cause
notice thereof to be given to the known heirs and creditors of
the decedent, and to any other persons believed to have an
interest in the estate, in the manner provided in sections 3
and 4 of Rule 76.
Rule 76; Section 3. 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 (3) 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.
Rule 76; Section 4. Heirs, devisees, legatees, and
executors to be notified by mail or personally. — The court
shall also cause copies of the notice of the time and place
fixed for proving the will to be addressed to the designated
or other known heirs, legatees, and devisees of the testator
resident in the Philippines at their places of residence, and
deposited in the post office with the postage thereon prepaid
at least twenty (20) days before the hearing, if such places
of residence be known. A copy of the notice must in like
manner be mailed to the person named as executor, if he be
not the petitioner; also, to any person named as coexecutor
not petitioning, if their places of residence be known.
Personal service of copies of the notice at lest (10) days
before the day of hearing shall be equivalent to mailing.
Q: Who may oppose the petition?
S: Based on Rule 79, Section 4, any interested person.
Rule 79; Section 4. Opposition to petition for
administration. — Any interested person may, by filing a
written opposition, contest the petition on the ground of the
incompetency of the person for whom letters are prayed
therein, or on the ground of the contestant's own right to the
administration, and may pray that letters issue to himself, or
to any competent person or person named in the opposition.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: After the opposition has been filed, what will
happen next?
S: There will be hearing.
Q: What happens during the hearing?
S: It is provided in Section 5.
Rule 79; Section 5. Hearing and order for letters to issue.
— At the hearing of the petition, it must first be shown that
notice has been given as hereinabove required, and
thereafter the court shall hear the proofs of the parties in
support of their respective allegations, and if satisfied that
the decedent left no will, or that there is no competent and
willing executor, it shall order the issuance of letters of
administration to the party best entitled thereto.
Q: What is the main issue to be resolved during the
hearing?
S: The competency of the one who will be appointed as
administrator of the estate.
Q: Are you sure it is the competency?
What if there is no issue on competency?
If there are several persons who want to be
appointed, one who files the petition for the issuance
and the other is the oppositor, so what will happen?
Who are not qualified to become administrators?
S: It is provided in Section 1 of Rule 78.
Rule 78; Section 1. Who are incompetent to serve as
executors or administrators. — No person in competent to
serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties
of the trust by reason of drunkenness, improvidence, or want
of understanding or integrity, or by reason of conviction of
an offense involving moral turpitude.
Q: Who else?
S: Based on jurisprudence, in the case of Ramos vs. Judge
Barot.
From the FT: “As a general rule, judges cannot
serve as executor, administrator, trustee, guardian
or other fiduciary, except if he acts in a fiduciary
capacity for the estate, trust or person of a member
of his immediate family.”
Q: Aside from the judge, who else can be
disqualified?
S: Section 2 of Rule 78 provides:
Rule 78; Section 2. Executor of executor not to administer
59
estate. — The executor of an executor shall not, as such,
administer the estate of the first testator.
Q: How about a married woman?
S: Based on Section 3:
Rule 78; Section 3. Married women may serve. — A
married woman may serve as executrix or administratrix, and
the marriage of a single woman shall not affect her authority
so to serve under a previous appointment.
Q: Can there be co-executors or co-administrators?
S: Yes.
Q: If one of the two co-executors or co-
administrators is disqualified, what happens? Does it
automatically disqualify the other co-executors or co-
administrators?
S: It is provided for under Section 5 of Rule 78.
Rule 78; Section 5. Where some coexecutors disqualified
others may act. — When all of the executors named in a will
can not act because of incompetency, refusal to accept the
trust, or failure to give bond, on the part of one or more of
them, letters testamentary may issue to such of them as are
competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
Q: In order for you to be appointed as administrator,
what basic quality must you have?
S: You must not be one mentioned as disqualified under the
law. You must accept the trust to be the one to administer
the estate and you should be at least financially capable to
pay the bond required.
Q: Do you need to be an heir to become an
administrator?
S: No.
Q: Do you need to be a creditor?
S: As a general rule, no.
Q: Can a creditor be appointed?
S: Yes.
Q: If you are not an heir, do you need to be a relative
of the deceased?
S: No.
Q: Supposing the persons who want to be appointed
as administrators are the relatives of the decedent,
an heir and a creditor, who among them should be
appointed?
S: Based on Section 6, there is an order of preference.
Rule 78; Section 6. When and to whom letters of
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
administration granted. — If no executor is named in the
will, or the executor or executors are incompetent, refuse the
trust, or fail to give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or
next of kin, or both, in the discretion of the court, or to such
person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to
serve;
(b) If such surviving husband or wife, as the case may be, or
next of kin, or the person selected by them, be incompetent
or unwilling, or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of the person to
apply for administration or to request that administration be
granted to some other person, it may be granted to one or
more of the principal creditors, if may be granted to one or
more of the principal creditors, if competent and willing to
serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the court
may select
Q: How many persons are there in the order of
preference? Who shall enjoy the top priority?
ATTY T: So the husband, wife and relatives
enjoy the highest preference. They are in the
same category. The next in line would be the
creditors – not related to the decedent. The
next one is “other persons” – not a relative,
not a creditor.
So there are only three rankings there:
1. The heirs and the relatives – surviving
spouse, the next of kin or both
2. The creditors
3. Any other person
Q: What does that mean? When you have the order of
preference, does it mean that the court will no longer
conduct hearing?
S: In the case of Baluyot vs. Pano, the Court ruled: “While
the probate court correctly assumed that Mrs. Baluyut as
surviving spouse enjoys preference in the granting of letters
of administration (Sec. 6[a), Rule 78, Rules of Court), it does
not follow that she should be named administratrix without
conducting a full-dress hearing on her competency to
discharge that trust.” So there is a need for the court to
conduct a hearing.
ATTY T: Even if you have the highest priority, that will
not preclude or dispense with the hearing
requirement. In the administration proceeding or in
the issuance of the letters for administration, the
hearing is an indispensable requirement. After the
notice of hearing has been posted and an opposition
has been filed, then a hearing must be conducted by
60
the court. The main issue to be resolved there is who
is best qualified or who shall be appointed as
administrator among those who wants to be
appointed.
But the court will be guided by the order of the
preference. If you are a creditor and the other person
applying for administration is a relative, then that
other person has already an advantage over you.
However, it does not mean that the court will appoint
that person. The court has to be convinced that the
said person is qualified to be appointed as
administrator.
Among those person in the first rank, the one who
enjoys the most preference is the surviving spouse.
Tsaka na yung relatives and next of kin.
Q: Why is that?
ATTY T: So the surviving spouse has the
highest or biggest interest in the estate.
When the person dies and the other person
inherit, then you look at the properties.
Normally all the properties will either be
conjugal or community properties. If it is
community property, automatic ½ of that
belongs to the surviving spouse. In each and
every community property, they are co-
owners. 50-50. Lahat yan, half of that is
estate of the deceased.
In one property, half of that belongs to the
surviving spouse and the other half belongs
to the estate.
Q: The order of preference will apply to the
appointment of what kind of administrator?
S: To the appointment of a regular administrator only.
Q: Why does it not apply to appointment of special
administrator? When do you appoint a special
administrator?
S: As provided for under Section 1 of Rule 80:
Rule 80; Section 1. Appointment of special administrator.
— When there is delay in 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.
Rule 86; Section 8. Claim of executor or administrator
against an estate. — 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
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
settlement of other claims. The court may order the executor
or administrator to pay to the special administrator necessary
funds to defend such claim.
ATTY T: So the special administrator is
appointed whenever there is delay in the
appointment of a regular administrator. So it
is a provisional remedy. Because in the
meantime, you need somebody to manage
the estate. So that gives you an idea how long
and how tedious it is to appoint an
administrator especially if the contending
parties belong to groups na may factions
among them.
Q: What is the remedy when the court issues an
appointment of administrator?
S: In the case of Tan vs. Gregorio Jr, the remedy for the
appointment of a special administrator is for a petition for
certiorari under Rule 65.
Q: How about in the appointment of a regular
administrator?
S: It is appealable in the normal way of appealing.
ATTY T: Can you imagine if you have an
administrator appointed and the order is
appealed and the administrator managed the
estate, no (???) The appeal has to be resolved
first. If it takes years now for the proceedings
to be completed and there is an appointment
of an administrator tapos you appeal because
you don’t agree with it, what happens to the
estate? Ma-abandon or walay mag-asikaso,
that is why you need a special administrator.
Q: Do you need to have hearing for the appointment
of special administrator? How do you apply for the
appointment of a special administrator?
S: It must undergo the same process in appointing of a
regular administrator. There must be a notice, publication
and hearing.
Q: Are you sure? Where do you find that in the rules?
S: It was cited in the case of De Guzman vs. Angeles.
Q: Where does it say that there is a need for
publication?
S: As part of notice, there shall be publication.
ATTY T: You do not need publication when you
appoint a special administrator. You do not
even need publication for the issuance of
letters testamentary, only for the probate of
the will and only for the issuance of letters of
administration.
When you ask the court to appoint a special
administrator, it is like asking for a
provisional remedy. So that in the meantime,
61
someone will manage the estate. Your ground
is simple: There is delay in the appointment
of a regular administrator.
Q: What will now be the basis of the court in the
appointment of a special administrator if the order of
preference will not apply?
ATTY T: So it can be any person. If the court
appointed the spouse as regular
administrator and that order appointing the
spouse is appealed, the court can actually
appoint the spouse as special administrator
pending the appeal of the said order. The
court is not even bound by the order of
preference insofar as the appointment of
special administrator is concerned. The order
of preference applies only for the
appointment of a regular administrator.
Pwede rin na si creditor ang i-appoint as
special administrator.
Q: We mentioned earlier about co-administrators. Do
you follow the order of preference in appointing co-
administrators?
S: No.
Because the co-administrators can be persons not listed on
the list as long as they have interest on the proceeding.
Q: When a judicial settlement of estate is resorted to
by a party, what are the authorities granted to the
executor or to the administrator of the estate?
S: According to Section 4 of Rule 78:
Rule 78; Section 4. Letters testamentary issued when will
allowed. — When a will has been proved and allowed, the
court shall issue letters testamentary thereon to the person
named as executor therein, if he is competent, accepts the
trust, and gives bond as required by these rules.
Q: To whom letters of testamentary given?
S: To the person named as executor in the will.
So you have a will and there is an executor. The executor is
the one named in the will appointed by the testator as the
person to give effect to the will or to execute the will.
Q: What happens if the executor named in the will
refuses? Who will now enforce the will?
S: The court will appoint another person as administrator.
Q: What authority will the court issue to that
administrator?
If there is no will and an administrator is not
appointed, what authority will be issued?
How do you define now letters testamentary?
S: It refers to the authority issued by the court to the person
named as executor.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: What is it for? Why do you need the issuance of
letters testamentary?
Q: How do you ask the court to issue letters
testamentary?
Q: For letters administration, how will you ask the
court to issue? How do you file petition for letters
administration?
So the letters of administration is a document issued
by the court, signed by the judge. That document
shows the authority of the administrator.
Q: When will the court issue the letters of
administration or letters testamentary for that
matter? What are the main elements before the court
can issue letters of administration?
ATTY T: There has to be acceptance first. Take
note that in the petition for letters
testamentary, the petitioner need not be the
one to whom the letters are to be issued. He
can nominate someone else. So you have an
heir, petitioning for the issuance of letters
administration, asking for the letters to be
issued, then later on it was issued in favor of
the surviving spouse but he does not like to
be appointed… You need the acceptance of
the administrator first before the letters of
administration can be issued. Even in the
letter testamentary, the executor has to
accept. If that person does not accept, then
there can be letters testamentary that can be
issued.
It is very important that before the letters
can be issued, the executor or administrator
must accept. Without that acceptance, the
court cannot compel them to serve as
administrator or executor.
Q: We said awhile ago that a special administrator
need not follow the order of preference. Can there be
two special administrators? One for the conjugal and
one for the separate properties of the estate?
S: In the case of De Roxas vs. Pexon, the Supreme Court
ruled no. There was grave abuse of discretion on the part of
the court here.
From the full text of the case: But the respondent's
subsequent act of appointing her as special
administratrix only of the conjugal or community
property, and Maria Roxas as special administratrix
of the capital or exclusive property of the decedent,
does not seem to be in conformity with logic or
reason. The petitioner has or claims to have the
same beneficial interest after the decision of the
court disapproving the will, which is now pending on
appeal, as she had prior to it, because the decision
is not yet final and may be reversed by the
appellate court.
62
Q: Why is there grave abuse of discretion?
ATTY T: Because there is only one estate. And
the estate comprises of both separate and
conjugal properties. So there is no basis to
separate the capital and the conjugal
properties – they all belong to one estate.
Why appoint two special administrators for
each kind of property diba? It will only result
in conflict of management as well as conflict
in decision.
Q: What are the powers and duties of special
administrator?
A: According to the rules:
Rule 80; Section 2. Powers and duties of special
adminsitrator. — 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
executors 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 so ordered by the
court.
But not pay debts of the estate ha. The exception is
when the court orders the special administrator to
pay.
Q: When does his power cease?
A: The Rule provides:
Rule 80; Section 3. When powers of special administrator
cease. Transfer of effects. Pending suits. — 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.
So kapag naissue na ang letters testamentary or
administration, meaning to say there is no longer an issue as
to who is the administrator or executor. That means that the
administrator or executor has already accepted. When that
happens, then the special administrator ceases from his
duties and functions. But he shall only by relieved upon the
delivery of the goods, chattels, money and estate. All suits
commenced by him will be maintained or continued by the
administrator or executor.
Q: What is a co-administrator?
A: In the case of Uy
“A co-administrator performs all functions and
duties and exercises all the powers of a regular
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
administrator, only that he is not alone in the
administration. The practice of appointing co-
administrators is not prohibited.”
Q: When the court appoints co-administrators, does
that require notice and hearing? Must it go through
the same process as appointing a regular
administrator? Do you need to go through notice and
hearing and reception of evidence?
S: No. The appointment of co-administrators do not need to
follow the same process in the appointment of
administrators.
Because a co-administrator also performs the same functions
of the original administrator.
Q: Precisely, if he is going to share in the
responsibilities of the original administrator, isn’t it
more necessary to follow the rigorous process of
appointing an administrator in the appointment of co-
administrator?
Q: Do you need to comply with the order of
preference before you can appoint co-administrator?
S: No.
Q: Can you have more than 2 c0-administrators?
S: Yes.
Q: Are you saying then that when you appoint co-
administrator, it is an exception to the rule of the
appointment of regular administrators?
S: Yes. It is an exception.
Q: So you have here the appointment of co-
administrators without having to go through the
process of appointment of regular administrators?
Like the court can just exercise its jurisdiction in
appointing co-administrators? Is that what you are
saying?
Q: What are the instances wherein you can appoint a
co-administrator?
S: In the case of Uy vs. CA, it was ruled by the Supreme
Court that:
From the FT: “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;
63
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.”
It is very clear there. The appointment of a co-
administrator already presupposes the appointment
of a regular administrator. So you already have a
regular administrator and letters of administration
have already been issued to him. Only, the court
will appoint another co-administrator to help the
original regular administrator especially if the affairs
and business of the estate is so complex as to
require someone to help co-manage.
ATTY T: You only need to show the necessity for the
appointment of co-administrator. Ano yung
maitutulong niya or yung expertise niya na
kakailanganin ng regular administrator. There is no
need to comply with the order of preference kasi
nacomply na yun during the appointment of regular
administrator. Given na kasi to. That is why there is
no more need to follow the rules on the appointment
of the regular administrator. Kaya discretionary na
siya on the part of the court. If the court finds that
there is a need to appoint two or more co-
administrators, then there will be many co-
administrators.
It is enough that you comply with the requirement on
the appointment of regular administrator. As to
additional administrators, there is no more need to
comply with the rigorous process of the appointment
of regular administrator.
Q: When the executor or administrator accepts the
trust, what must he or she do before the letters can
be issued to him?
S: There must be a bond.
Q: What is the amount of the bond? Is there an
exception to the bond requirement?
S: So the exception in the bond requirement will only apply
in the testate proceedings because that should be provided
by the testator in the will. If walang will, then no choice, the
administrator has to post a bond.
Rule 81; Section 2. Bond of executor where directed in
will. When further bond required. — If the testator in his will
directs that the executors serve without bond, or with only
his individual bond, he may be allowed by the court to give
bond in such sum and with such surety as the court approves
conditioned only to pay the debts of the testator; but the
court may require of the executor a further bond in case of a
change in his circumstance, or for other sufficient case, with
the conditions named in the last preceding section.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: What are the conditions of the bond?
S: It is found under Section 1:
Rule 81; Section 1. Bond to be given issuance of letters.
Amount. Conditions. — Before an executor or administrator
enters upon the execution of his trust, and letters
testamentary or administration issue, he shall give a bond, in
such sum as the court directs, 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;
(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 as shall be decreed by the court;
(c) To render a true and just account of his administration to
the court within one (1) years, and at any other time when
required by the court;
(d) To perform all orders of the court by him to be
performed.
So you have here all the conditions of the bond and
these conditions pertain to the duties and obligations
of the executors or administrators.
Q: How about the co-executors or co-administrators,
are they required to post a bond? How about the
special administrators?
A: It is provided under the rules:
Rule 81; Section 3. Bonds of joint executors and
administrators. — When two or more persons are appointed
executors or administrators the court may take a separate
bond from each, or a joint bond from all.
Rule 81; Section 4. Bond of special administrator. — A
special administrator before entering upon the duties of his
trust shall give a bond, in such sum as the court directs,
conditioned that he will make and return a true inventory of
the goods, chattels, rights, credits, and estate of the
deceased which come to his possession or knowledge, and
that he will truly account for such as are received by him
when required by the court, and will deliver the same to the
person appointed executor or administrator, or to such other
person as may be authorized to receive them.
Q: What are the powers of the executor or
administrator?
S: Under Rule 87, these are the powers:
64
Rule 87: Section 2. Executor or administrator may bring or
defend actions which survive. — 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
deceased, actions for causes which survive.
Rule 87; Section 4. Executor or administrator may
compound with debtor. — Within the approval of the court,
an executor or administrator may compound with the debtor
of the deceased for a debt due, and may give a discharge of
such debt on receiving a just dividend of the estate of the
debtor.
Rule 87; 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.
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.
Rule 87; 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.
Rule 87; 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
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
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.
Q: What are the duties of the executor or
administrator?
S: It is set forth in Rule 83, 84, 85 and 87.
Rule 83; Section 1. Inventory and appraisal to be returned
within three months. — Within three (3) months after his
appointment every executor or administrator shall return to
the court a true inventory and appraisal of all 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 assistance.
Rule 84; Section 2. Executor or administrator to keep
buildings in repair. — An executor or administrator shall
maintain in tenanble 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.
Rule 84; Section 3. Executor or administrator to retain
whole estate to pay debts, and to administer estate not
willed. — 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 the debts and the expenses of
administration.
Rule 85; Section 3. When not accountable for debts due
estate. — No executor or administrator shall be accountable
for debts due the deceased which remain uncollected without
his fault.
Rule 85; 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
65
require until the estate is wholly settled.
Rule 87; 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.
Q: So one of the duties of the administrator or
executor is the submission of inventory and appraisal
of the estate. When shall it be submitted?
S: Within 3 months from the granting of the letters
testamentary or authority.
Q: What is the extent of the inventory?
S: All real and personal properties.
Rule 83; Section 1. Inventory and appraisal to be returned
within three months. — Within 3 months after his
appointment every executor or administrator shall return to
the court a true inventory and appraisal of all 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 assistance.
Q: What should not be included in the inventory?
S: It is found under Section 2 of Rule 83.
Rule 83; Section 2. Certain article not to be inventoried. —
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 necessarily be consumed
in the substinence of the family of the deceased, under the
direction of the court, shall not be considered as assets, nor
administered as such, and shall not be included in the
inventory.
Q: What is the extent of the accountability or liability
of the executor or administrator?
S: All the properties included in the inventory as appraised.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Q: When you say that all properties of the estate
included in the inventory, what does that cover?
S: It refers to all the properties of the decedent.
Rule 85; Section 1. Executor or administrator chargeable
with all estate and income. — Except as otherwise expressly
provided in the following sections, every 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.
So you include the interests, the proceeds and
incomes.
Q: If there is an excess in the value of the property
sold than the appraised value, will the administrator
or executor be accountable for that?
S: Yes.
Q: What if there is a decrease in the value of the
property than the value appraised or declared in the
inventory?
Rule 85; Section 2. Not to profit by increase or lose by
decrease in value. — No executor or administrator shall profit
by the increase, or suffer loss by the decrease or destruction,
without his fault, of any part of the estate. 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 the less than
the appraisement, he is not responsible for the loss, if the
sale has 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.
Q: How about the claims for the estate? Will he be
accountable for that?
S: Under the Rules, 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.
Q: What if he uses property of the estate?
S: Under the Rules:
Rule 85; Section 4. Accountable for income from realty
used by him. — If the executor or administrator uses or
occupies any part of the real estate himself, he shall account
for it 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.
66
Q: What happens if he is unable to pay the debts? Will
he be made accountable for that?
S: Under the Rules:
Rule 85; Section 5. Accountable if he neglects or delays to
raise or pay money. — 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 therefor on his
bond.
Q: How about the suits that he prosecuted or
resisted? Will he be liable for that? Is he not liable for
the outcome of the suit that he prosecuted or he
resisted?
S: Yes, he is not liable. Provided that he instituted the suit in
the interest of the estate.
ATTY. T: The general rule here is that if there
is negligence or fault in the part of the
administrator, he can be made accountable
for the loss or decrease in the value of the
estate. That is the general rule. The opposite
would be is if there is no fault or negligence
on his part, then he cannot be made liable for
the decrease in the value.
For the suits prosecuted or resisted, without
just cause or with bad faith, then he can be
accountable for that. Remember, as
administrator, he calls the shots on what case
to file. If he is in bad faith, he can be made
liable for that and all corresponding losses
can be charged against him.
Q: What are the expenses that may be allowed?
S: Under Section 7:
Rule 85; 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 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
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
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.
When the executors or administrator is an attorney, he shall
not charge against the estate any professional fees for legal
services rendered by him
When the deceased by will makes some other provision for
the compensation of his executor, that provision shall be a
full satisfaction for his services unless by a written
instrument filed in the court he renounces all claim to the
compensation provided by the will.
Here, for the expenses, they can be charged in the account
of the administrator for the necessary care, management and
settlement of the estate. Their compensation can also be
charged to the estate.
Q: What else, aside from these, can you charge to the
estate?
S: The support of the surviving spouse and children.
Q: Who are entitled to the allowances?
S: Section 3 provides that:
Rule 83; 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.
Rule 83 Section 3 covers widow, minor or incapacitated
children.
Q: How about children who are already of age?
S: They are also covered for the provision for support.
Q: What is the basis for that?
S: Article 133 of the Family Code.
Art. 133. From the common mass of property support shall
be given to the surviving spouse and to the children during
the liquidation of the inventoried property and until what
belongs to them is delivered; but from this shall be deducted
that amount received for support which exceeds the fruits or
rents pertaining to them.
Q: How about the grandchildren?
67
S: In one case, it was ruled that the grandchildren are not
included for the provision for support. Because the law
provides support only for the spouse and children.
In the case of Ruiz vs. CA, it was ruled: “It is
settled that allowances for support under Section 3
of Rule 83 should not be limited to the "minor or
incapacitated" children of the deceased. Article
18813of the Civil Code of the Philippines, the
substantive law in force at the time of the testator's
death, provides that during the liquidation of the
conjugal partnership, the deceased's legitimate
spouse and children, regardless of their age, civil
status or gainful employment, are entitled to
provisional support from the funds of the estate.14
The law is rooted on the fact that the right and duty
to support, especially the right to education, subsist
even beyond the age of majority.”
Q: With respect to compensation, what happens if
there is a co-administrator?
S: It shall be apportioned to them based on their effort. Rule
85, Section 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.”
Q: When the executor or administrator is a lawyer, he
cannot charge his services as a lawyer in the estate,
what about if the administrator or executor hires
lawyers or services of lawyers? What is the ruling in
the case of Lacson vs. Reyes?
A: The rule is therefore clear that an administrator or
executor may be allowed fees for the necessary expenses he
has incurred as such, but he may not recover attorney's fees
from the estate. His compensation is fixed by the rule but
such a compensation is in the nature of executor's or
administrator's commissions, and never as attorney's fees. In
one case, 18 we held that "a greater sum [other than that
established by the rule] may be allowed '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.'"
Feb 6, 2016 (DMiles)
What is the form of the petition for letters of
administration?
Rule 79, Sec 2. Contents of petition for letters of
administration. A petition for letters of administration must
be filed by an interested person and show, so far as known
to the petitioner:
a. The jurisdictional facts
b. The names, ages and residences of the heirs, and
the names and residences of the creditor of the
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
decedent
c. The probable value and character of the property of
the estate
d. The name of the person for whom letters of
administration are prayed
But no defect in the petition shall render void the issuance of
letters of administration.
What do you mean by jurisdictional facts?
It means the person died and he was resident of the phils at
the time of his death and that he has properties, the
probable value, the heirs, the creditors and the name of the
person to be appointed as administrator.
What happens after the petition for administration
has been filed?
It is provided under sec 3 of rule 79, when a petition for
letters of administration is filed in the court having
jurisdiction , such court shall fix a time and place for hearing
the petition, and shall cause notice thereof to be given to the
known heirs and creditors of the decedent, and to any other
persons believed to have an interest in the estate in the
manner provided in sec 3 and sec 4 of rule 76.
ATTY T: The same procedure. The court will fix the
time and date of hearing.
What will happen to the notice of hearing?
It is provided under sec 5 – At the hearing of the petition, it
must first be shown that notice has been given as
hereinabove required, and thereafter the court shall hear the
proofs of the parties in support of their respective
allegations, and if satisfied that the decedent left no will or
that there is no competent and willing executor, it shall order
the issuance of letters of administration to the party best
entitled thereto.
What will you do to the notice of hearing?
So the same requirement for petition for probate,
personal notice and notice by publication will be
given.
Is there a particular timeframe for a person to
oppose?
(no definite answer given by madame)
Is there service of summons when letters for
administration is filed?
ATTY T: You check the rules and jurisprudence if there
is service of summons
Let’s go the accounting.
What is the duty to render accounting of the
administrator?
Rule 85, Sec 1. Except as otherwise expressly provided in
68
the following sections, every 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.
Also under Sec 2:
xxx
No executor or administrator shall profit by the increase or
suffer loss by the decrease or destruction, without his fault of
any part of the estate. 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.
When will you render the accounting?
Under Section 8:
Section 8. Every executor or administrator shall render an
account of his administration within 1 yr 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.
What do you understand when the administrator
submits an accounting?
ATTY T: The purpose for that because that
position of administrator is of trust. The
administrator is the agent of the court. All
transactions of the estate, he has to inform
the court. He holds office based on trust and
confidence. That is why in petition for
issuance of letters testamentary and
administration , it is to select the best
candidate for the position to manage the
estate and the court will decide who is best
qualified.
Once you are appointed, the first order of
business is to submit an inventory and then
render an accounting. You have to render an
accounting yearly after that. Everything that
is happening in the estate, profits, interest,
losses, income, expenses etc.
Why? That is the requirement of the law
because of the nature of that position which
is he is only an agent of the court. That’s part
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
of being transparent as your duty of being the
administrator or executor.
What will the court do once you submit an
accounting?
Under Section 10:
Before the account of an executor or administrator is
allowed, notice shall be given to persons interested of the
time and place of examining and allowing the same and such
notice may be given personally to such persons interested or
by advertisement in a newspaper or newspapers or both as
the court directs.
What do you mean by “allowing the accounting”?
It means approval of the court.
What is the requirement/procedure for the approval
of the accounting?
First, the administrator must render an accounting. it must
be filed in court and the court will take notice of such
submission.
Is it the ministerial duty of the court to approve the
accounting?
No. The court can defer the approval of the accounting and
require interested parties to examine the report.
Is there an exception to this examination?
Under Section 9:
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 its correctness is satisfactorily established by
competent proof. The heirs, legatees, distributes and
creditors of the estate shall have the same privilege as the
executor or administrator of being examined on oath of any
matter relating to an administration account.
Aside from the heirs, legatees, distributes, creditors ,
who else is allowed to examine the account?
The surety under Section 11. The surety is an interested
party because it can be held liable over the items that are
questionable and cannot be justified by the administrator.
What are the instances that administration can be
revoke?
Rule 82, Section 1. 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
69
within such time as the court directs. Proceedings for the
issuance of letters testamentary or of administration under
the will shall be as hereinbefore provided.
Grounds for removal –
Also under Section 2:
Section 2. If an executor or administrator neglects to render
his account and settle the estate according to law or to
perform an order or judgement of the court or a duty
expressly provided by these rules, or absconds, or becomes
insane or otherwise incapable or unsuitable to discharge the
trust , the court may remove him or in its discretion, may
permit him to resign. When an administrator or executor
dies, resigns or is removed the remaining executor or
administrator may administer the trust alone unless the court
grants letters to someone to act with him. If there is no
remaining executor or administrator , the administration may
be granted to any suitable person.
In the case of Hilado vs. A, a contingent claimant can
seek the removal of the administrator for failing to
render his duty . The SC held that removal of an
administrator under rule 82 can be initiated by any
person. Take note of that case.
The rule is that no administrator can leave the trust
without rendering an accounting. The court can
appoint a replacement.
Supposing there are co-administrators and one is
removed, what will happen?
The remaining co-executor or administrator may
administer the property unless the court appoints
someone else in replacement of the removed
administrator. The powers of the newly appointed
executor will be the same as to the previous
administrator.
CLAIMS AGAINST THE ESTATE
When will be claims of the estate entertain?
Rule 86, Section 1. 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 the court.
What will the court issue?
The courts will issue notices. This stage is the
commencement of the proceedings. This is a notice to all
the creditors. If the estate has no debts, you did not go thru
this process. You avail of extra-judicial settlement. This is
commence after the issuance of the letters administration or
testamentary.
How will the court issue the notice?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
The court on its own shall issue the notice. Unfortunately, in
actual practice the court is not aware of this. The case has
been dragging for so long only to find out the court did not
issue any notice to creditors. The judge and clerk of court
should monitor these cases.
How will the notice be sent?
Under Sec 3:
Rule 86, Section 3. Every executor or administrator shall,
immediately after the notice to creditors is issued, cause the
same to be published three 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.
Is there a need to personal notice to creditors?
If the creditors are already parties to the case, then they will
be given notices.
How should the court fix the deadline?
Under Sec 2:
In the notice provided in the preceding section, the court
shall state the time for the filing of claims against the estate,
which shall not be more than twelve nor less than 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 time 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 month.
The deadline is it should not be more than 12 months
nor less than 6 months. There will only be one date
for the deadline of filing claims. The reckoning point
is from the date of the first publication of the notice.
Can creditors file beyond the deadline?
Under Section 5:
All claims for money against the decedent, arising from
contract, express or implied, whether the same be due, not
due, or contingent ,all claims for funeral expenses and
expenses for the last sickness of the decent, and judgement
for money against the decedent 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 judgement is rendered
in favor of the defendant, the amount so determined shall be
70
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.
Tardy claims are claims filed beyond the notice are
barred. That is called the STATUTE OF NON-CLAIMS.
It refers to the definite period in filing claims against
the estate.
It covers only things or actions that do not survive
such as money claims arising from contracts, express
or implied, due or not due, or contingent, claims for
funeral expenses and expenses for the last sickness
of the deceased, money judgement. Failure to file
within this period will bar your claim forever.
Supposing there already debts recognize in the will, is
it necessary that you still file it within the statute of
non-claims?
Yes, the purpose of statute of non- claims is to
expedite the proceedings. So even if recognize in the
will, you cannot take your sweet time in filing the
claim. You still have to file it in court before the
deadline. That is in the case of Santos vs. Manarang
(then purpose is to settle the affairs of the estate with
dispatch, so that residure may be delivered to the persons
entitled thereto without their being afterwards called upon to
respond in actions for claims, which under the ordinary
statue of limitatios have not yet prescribed)
What are the exceptions to the rule?
Under Sec 5:
EXCEPT that they may be set forth as counterclaims in any
action that the executor or administrator may bring against
the claimants.
So for example you were not able to file your claim
within the deadline but the estate filed a case against
you, so you can assert it now as a counterclaim. That
is the exception. or the counterclaim may already
been set up in a case filed by the decedent against
you during his lifetime. That is still an exception. the
counterclaim in a pending case is in the nature of a
contingent claim.
What is the rule if you won in your counterclaim?
Under Section 5:
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 judgement 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
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
directly before the court in the administration proceedings.
Claims not yet due, or contingent may be approved at their
present value.
Another exception?
Under Section 7:
A creditor holding a claim against the deceased secured by
mortgage or other collateral 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 judgement
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
judgement in the manner provided in the proceeding 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.
If there is collateral given for that obligation, you
don’t have to file your claim within the statute of
non-claims. You can foreclose on the mortgage or the
pledge.
General rule is if you file your money claim within the
statue of non-claims, you have to share with the
other creditors. It would matter if the estate is
insolvent.
But if you are creditor and mortgagee, then you are a
preferred creditor to the asset that is given as
security. If the property is valuable, you will benefit
from it.
Options of the mortgagee:
1. You can abandon the security and file your
claim against the estate
2. You will go for judicial foreclosure ( you have
to file a case under rule 68)- this is the safest
because you can file a deficiency judgement
3. You can go for extra-judicial foreclosure ( if
the property is very valuable)
Aside from a mortgagee, another exception would be
a solidary debtor under Section 6.
In solidary obligation, you don’t have to file your
claims since any one of them can satisfy the
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obligation. In joint obligations, you can file a claim
against the other obligor but only to the portion
belonging to the living obligor. As to the deceased
obligor, forever barred.
Section 6. Where the obligation of the decedent is solidary
with another debtor, the claim shall be filed against the
decednt as if he were the only debtor, without prejudice to
the right of the estate to recover contribution from the other
debtor. In a joint obligation of the decedent, the claim shall
be confined to the portion belonging to him.
Let’s go now to the contingent claims. What is the
rule?
Under rule 88, Section 5:
If such contingent claim becomes absolute and is presented
in court, or to the executor or administrator, within two 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 the 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 yrs,
and allowed the assets retained in the hands of the executor
or administrator, not exhausted in the payment of claims,
shall be distributed 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
distributes to recover the debt and such distributees and
theirs estates shall be liable for the debt in proportion to the
estate they have respectively received from the property of
the deceased.
How do you value the contingent claims?
The contingent claims will be valued upon the present value
of the claim and is determined by the court.
When do you present it in court?
It should be presented within 2 years. You file can file your
contingent claims twice which is first within the statute of
non-claims and when it becomes absolute within 2 yrs from
the time limited for other creditors .
What if you did not file your contingent claim within
the statute of claims then you filed it within 2 yrs
when it becomes absolute, can you do that?
ATTY T: No. A contingent claimant should file
the claim within the statute of non-claims if it
is a money contract. It is required that a
contingent claimant should file it first within
the statute of non-claims because the rule
requires.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
In the case of Mc Micking vs. Conbieng, the
creditor is not without duties. It is his duty
that he is to be protected in the event his
claim will ripen and the estate will be called
upon to answer his claim. You don’t have to
wait that your will claim will ripen. You have
to file immediately so that the court will be
inform and can reserved properties for the
payment of such claim incase it will become
absolute. Then after it becomes absolute you
will file it again to inform the court that it has
ripen. The purpose is for the administration
of justice.
Is certification of forum-shopping required in filing
your contingent claim against the estate?
In the case of Sheker vs. Estate of Alice
Sheker, the ruled the certification of non-
forum shopping is required only for
complaints and other initiatory pleadings. A
claim against the estate is more akin to a
motion for creditors claim to be recognized
and taken into consideration in the proper
disposition of the properties of the estate. It
is a response to the notice issued by the
court. You just complied to the order of the
court.
Payment of docket fees is not a ground for
the dismissal of the claim. You still have to
pay the docket fees but the filing fees shall
constitute a lien on the judgement pursuant
to sec 2, rule 141 of the rules of court, the
court may order the payment of docket fees
within a reasonable time.
In the case of HILADO VS. CA, should Hilado filed his
claim under the statute of non-claims?
He is not required to file his claim his action
was based on pending action for quasi-delict
against a decent because the rule applies only
to those claims arising from contract. In this
case, it was based on torts. It is an action
that survive. Claims under statute of non-
claims are actions that does not survive.
For the case that do not survive, it must be filed
within the statute of non-claims. How do you process
your claim?
You just file a motion under Section 9 of Rule 86.
Section 9. 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 is
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
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shall be exhibited, unless it be lost or destroyed, in which
case the claimant must accompany his claim with affidavit or
affidavits containing a copy or particular description of the
instrument and stating is 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 claims not due or is
contingent, when filed, it must also be supported by the
affidavit 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 its discretion and as a matter
of convenience, may order all the claims to be collected in a
separate folder.
The rules does not require any particular form. The
written claim is not even verified. You only have to
submit sworn affidavits as supporting documents.
You only need to present the vouchers. The affidavit
is only required if you cannot prove the indebtedness.
You also need to submit an affidavit if the claim is not
due, or is contingent. You can even file a motion in
court.
What happens after a claim has been filed?
Under Section 10, Rule 86:
Within 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
substance of the matters which are relied upon to support
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 has 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 its discretion may extend the time for filing such
answer.
The administrator is required to file an answer. If the
estate has a claim , it should be stated in the answer
otherwise it will be barred. So he has to submit an
answer to all claims.
What happens if the administrator will admit the
claims in the answer?
Under Section 11:
Any claim admitted entirely by the executor or administrator
shall immediately be submitted by the clerk to the court who
may approve the same without hearing, but the court, in its
discretion before approving the claim, may order that known
heirs, legatees or devisees be notified and heard. If upon
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
hearing , an heir, legatee or devisee opposes the claim, the
court may, in its discretion, allow him 15 days to file an
answer to the claim in the manner prescribed in the
preceding section.
An example is when the decedent acknowledged the
debt in the will and the court can grant it outright.
Supposing the claim is denied by the administrator,
what will happen?
Under Section 12:
Upon the filing of an answer to a claim or upon the
expiration of the time for such filing the clerk of the court
shall set the claim for trial with notice to both parties. The
court may refer the claim to commissioner.
It can be trial by commissioners.
If the party does not agree with the judgment, he can
appeal like any ordinary appeal under sec 13:
The judgement 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 judgement against the executor or
administrator shall be that he pay, in due course the amount
ascertained to be due and it shall create any lien upon the
property of the estate or give to the judgement creditor any
priority of payment.
The approval of the claim is only recognizing that
claim is valid but that does not make you a preferred
creditor.
Section 14. Costs – When the executor or administrator, in
his answer, admit 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 judgement,
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 its discontinuance.
General rule is that the prevailing party will shoulder
the costs however the administrator may charge it as
his administrative expenses for the processing the
claims.
Now, what are actions that survive?
Under Rule 87, Section 1:
No action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or
administrator but actions to recover real or personal
property, or an interest therein, from the estate or to enforce
73
a lien thereon, and actions to recover damages for an injury
to person or property, real or personal, may be commenced
against him.
Examples are actions for reconveyance, foreclosure
of mortgage, forcible entry, unlawful detainer
You file these actions in the regular courts.
These are actions which you do not file within the
statute of non-claims.
The defendant here would be the estate of the
deceased. The estate is a juridical person that can be
sued and be sued. However it should be qualified like
estate of Juan dela Cruz represented by the
administrator. The estate is the real party in interest.
That is the general rule.
What is the exception?
As a general rule the heirs cannot sue if there is
already an administrator however if the there is no
administrator yet appointed by the court and when
there is already an administrator under the case of
Rioferio vs. CA :
1) If the executor or administrator is
unwilling or refuses to bring suit and
2) when the administrator is alleged to have
participated in the act complained of and he
is made a party defendant.
For recovery of sums of money where in the
decedent is the plaintiff-creditor, the estate can file a
case to collect the obligations of the estate even to
the extent of filing cases against the debtor of the
deceased as held in the case of Bautista vs. De
Guzman. It’s part of recovering the properties of the
estate.
Now there are embezzlement of the goods, chattels
of the decedent before the granting of the letters of
administration, what is the remedy of the estate?
Section 8. 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.
You file a civil or criminal actions to recover the
properties. These are actions that survive as well.
How about the creditors? What if they were
defrauded by the decedent during his lifetime?
Under sec 9:
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Section 9. When there is deficiency of assets in the hands
of an executor or administrator for the payment of debts and
administration, and the deceased in his lifetime had
conveyed real or personal property or a right or interest
therein, or a 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
judgement 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 an 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.
The creditors will file a motion in court asking the
administrator or executor to file a case to recover the
properties which were fraudulently disposed. The
court will grant the motion provided the creditors will
shoulder the cost of suit. However the creditors can
file the case in behalf of the administrator or executor
when upon the order from the court to commence
such action, the administer still refuses. The creditor
upon leave of court can file the case in the name of
the estate of the deceased represented by the
executor or administrator.
The creditor however can bring the action in his name
when the executor or administrator is the defendant
in the case under sec 10 where the conveyance or
attempted conveyance has been made by the
deceased in his lifetime in favor of the executor or
administrator, the action which a creditor 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.
February 16, 2016 (AC)
Q: What is the proceeding under Section 6 of Rule
87? Who can ask for such remedy?
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
74
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.
Q: What is the purpose?
From the case Chua vs. Absolute Management
Corporation: “Section 6 of Rule 87 seeks to secure
evidence from persons suspected of having
possession or knowledge of the properties left by a
deceased person, or of having concealed,
embezzled or conveyed any of the properties of the
deceased.”
This contemplates a situation where another person
has fraudulently conveyed, embezzled or concealed a
property. You have to distinguish this if it is the
testator himself who does the acts in order to hide
properties from creditors.
Q: What happens if there is a person suspected who
has fraudulently conveyed, embezzled or concealed a
property of the deceased?
Q: What happens if it is shown that the person has
indeed done the acts? What can the court do?
Q: What is the extent of Section 6, Rule 87?
S: Merely evidence.
Q: What do you mean?
In the case of Chua: “This is only for purposes of
eliciting information or securing evidence from
persons suspected of concealing or conveying some
of the decedents properties to the prejudice of
creditors. Petitioners admission that these persons
are the decedents assignees does not automatically
negate concealment of the decedents assets on
their part. The assignment might be simulated so as
to place the shares beyond the reach of creditors.
In case the shares are eventually included in the
estate, this inventory is merely provisional and is
not determinative of the issue of ownership. A
separate action is necessary for determination of
ownership and recovery of possession.”
Q: So what is the nature of the proceeding under
Section 87?
Q: Why can’t the court order the return of the
property?
S: Because a separate case for recovery is needed to
be filed.
Q: How do you pay the debts of the estate?
S: Sec 1 provides:
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Rule 88; Section 1. Debts paid in full if estate sufficient. —
If, after hearing all the money claims against the estate, and
after ascertaining the amount of such claims, it appears that
there are sufficient assets to pay the debts, the executor or
administrator pay the same within the time limited for that
purpose.
Q: Supposing the will provides how the debts will be
paid, how would such debts be paid?
S: Sec 2 provides:
Rule 88; Section 2. Part of estate from which debt paid
when provision made by will. — If the testator makes
provision by his will, or designates the estate to be
appropriated for the payment of his debts, the expenses of
administration, or the family expenses, they shall be paid
according to the provisions of the will;
xxx
Q: Supposing the manner provided in the payment of
the debts in the will is not enough in payment of the
debts and there are still debts remained unpaid, what
happens?
S: Still under Sec. 2.
Rule 88; Section 2. x x x
But if the provision made by the will or the estate
appropriated, is not sufficient for that purpose, such part of
the estate of the testator, real or personal, as is not disposed
of by will, if any shall be appropriated for that purpose.
So, if there is a provision in the will with respect to
the payment of the debts, then you follow it. That is if
the estate is solvent, meaning it has enough assets to
pay the debts.
Q: Suppose there is no will that prescribes the
manner of payment the debts, how will you settle it?
S: The personal properties will be sold first then the real
properties will be allocated.
Q: What happens if there are debts still unpaid and
the heirs are already in possession of the properties
of the estate, what will happen? Are you going to
dispossess them?
S: Sec 3:
Rule 88; Section 3. Personalty first chargeable for debts,
then realty. — The personal estate of the deceased not
disposed of by will shall be first chargeable with the payment
of debts and expenses; and if said personal estate is not
sufficient for tat purpose, or its sale would redound to the
detriment of the participants for the estate, the whole of the
real estate not dispose of by will, or so much thereof as is
necessary, may be sold, mortgaged, or otherwise
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encumbered for that purpose by the executor or
administrator, after obtaining the authority of the court
therefor. Any deficiency shall be met by contributions in
accordance with the provisions of section 6 of this rule.
Q: What are these contributions?
A: Section 6 says:
Rule 88; Section 6. Court to fix contributive shares where
devisees, legalitees, or heirs have been possession. — Where
devisees, legatees, or heirs have entered into possession of
portions of the estate before the debts and expenses have
been settled and paid, and have become liable to contribute
for the payment of such debts and expenses, the court
having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of their several
liabilities, and order how much and in what manner each
person shall contribute, and may issue execution as
circumstances require.
Q: Supposing the estate is insolvent, how will you pay
the debts?
A: It is under Section 7:
Rule 88; Section 7. Order of payment if estate insolvent —
If the assets which can be appropriated for the payment of
debts are not sufficient for that purpose, the executor or
administrator shall pay the debts against the estate,
observing the provisions of Articles 1059 and 2239 to 2251 of
the Civil Code.
So I leave that to you to review your Credit
Transactions or your Obligations and Contracts.
Q: What is the rule with respect to the payment of
debts when the estate is insolvent and the decedent
is not a resident?
S: Under Section 9:
Rule 88; Section 9. Estate of insolvent non-resident, how
disposed of. — In case administration is taken in the
Philippine of the estate of a person who was at the time of
his death an inhabitant of another country, and who died
insolvent, hi estate found in the Philippines shall, as far as
practicable, be so disposed of that his creditors here and
elsewhere may receive each an equal share, in proportion to
their respective credits.
In other words, the foreign creditor who is a non-
resident will be admitted as among the claimants and
they would be included in the proportionate sharing
of the properties found here.
Q: When do you apply that? When are the foreign
creditors allowed to participate and receive
proportionate share of the estate of an insolvent
decedent?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
S: The condition is that there must be a notice given
to the administrator about the claim.
Q: Of course, there must be notice. But what is the
most important condition here?
A: Section 10:
Rule 88; Section 10. When and how claim proved outside
the Philippines against insolvent resident's estate paid. — If it
appears to the court having jurisdiction that claims have
been duly proven in another country against the estate of an
insolvent who was at the time of his death an inhabitant of
the Philippines, and that the executor or administrator in the
Philippines had knowledge of the presentation of such claims
in such country and an opportunity to contest their
allowance, the court shall receive a certified list of such
claims, when perfected in such country, and add the same to
the list of claims proved against the deceased person in the
Philippines so that a just distribution of the whole estate may
be made equally among all its creditors according to their
respective claims; but the benefit of this and the preceding
sections shall not be extended to the creditors in another
country if the property of such deceased person there found
is not equally apportioned to the creditors residing in the
Philippines and the other creditor, according to their
respective claims.
Q: When you say reciprocity, what does it mean?
S: Under the Rules, “the benefit of this and the preceding
sections shall not be extended to the creditors in another
country if the property of such deceased person there found
is not equally apportioned to the creditors residing in the
Philippines and the other creditor, according to their
respective claims.”
Q: Read Section 10 again. How do you interpret that?
The reciprocity requirement is applicable to both resident and
non-resident decedent before the claimants. Their estate
found in the Philippines must be insolvent.
Reciprocity means that the foreign claimants can participate
here pro-rata with the Philippine creditors for as long as the
law in that jurisdiction also allows Philippine creditors to file
their claims there and avail of the same benefits. They get to
share of the estate proportionately. Without that, if the law
in that country does not allow Philippine claimants or foreign
claimants against an estate of the insolvent, then we will not
also extend the same. That is what reciprocity is.
Q: How do you pay contingent claims?
S: Under Section 5:
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 2 years from the time limited for other
creditors to present their claims, it may be allowed by the
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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 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 the debt in proportion to
the estate they have respectively received from the property
of the deceased.
Take note that if it becomes absolute 2 years from
the date of filing of claims, then you have to present
it in court saying that it has become absolute. Then
there should be trial on the claim. If it is allowed after
trial, then it will be paid from the asset retained to
pay the same. If the estate is insolvent, then it would
be in proportion. Pro-rated na naman ang pagbayad.
Q: If it is not presented within two years, naging
absolute na siya, nag-lapse na ang period, does it
mean that the claim will not be paid anymore?
S: No. Section 5 provides: “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 the debt in proportion to the
estate they have respectively received from the property of
the deceased.”
ATTY. T: In other words, even if not presented within
two years, it can be presented later. If it is presented
within the two year period, then the distributes will
have to be made liable to pay for the claim. In other
words, the creditor here has to file a separate action
to file claim for the shares.
Q: What is the time for the payment of debts?
S: Section 15 provides:
Rule 88; Section 15. Time for paying debts and legacies
fixed, or extended after notice, within what periods. — On
granting letters testamentary or administration the court
shall allow to the executor or administrator a time for
disposing of the estate and paying the debts and legacies of
the deceased, which shall not, in the first instance, exceed 1
year; but the court may, on application of the executor or
administrator and after hearing on such notice of the time
and place therefor given to all persons interested as it shall
direct, extend the time as the circumstances of the estate
require not exceeding 6 months for a single extension not so
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

that the whole period allowed to the original executor or

administrator shall exceed 2 years.

Supposedly, it should be one year from the grant of

the letters. So it coincides with the one year to render
accounting – that is extendible to two years. But the
extension must be made with notice and hearing.
Is this being followed? No. This is a wishful thinking.
You cannot settle the debts within one year or two
years. It is impossible especially if we need to go
through mini trial.
Q: When will the court issue an order for the payment
and distribution of assets? We’re talking here of net
assets.
S: It is under Section 11.
Rule 88; Section 11. Order for payment of debts. — Before
the expiration of the time limited for the payment of the
debts, the court shall order the payment thereof, and the
distribution of the assets received by the executor or
administrator for that purpose among the creditors, as the
circumstances of the estate require and in accordance with
the provisions of this rule.
Q: What happens if there are claims that are unpaid?
S: Under Section 12:
Rule 88; Section 12. Orders relating to payment of debts
where appeal is taken. — If an appeal has been taken from a
decision of the court concerning a claim, the court may
suspend the order for the payment of the debts or may order
the distributions among the creditors whose claims are
definitely allowed, leaving in the hands of the executor or
administrator sufficient assets to pay the claim disputed and
appealed. When a disputed claim is finally settled the court
having jurisdiction of the estate shall order the same to be
paid out of the assets retained to the same extent and in the
same proportion with the claims of other creditors.
If there are still appealed claims, then the court can
suspend the distribution of the assets so that the
estate can pay.
Q: When the court issues a subsequent order for the
distribution of the assets?
S: It is under Section 13:
Rule 88; Section 13. When subsequent distribution of
assets ordered. — If the whole of the debts are not paid on
the first distribution, and if the whole assets are not
distributed, or other assets afterwards come to the hands of
the executor or administrator, the court may from time to
time make further orders for the distributions of assets.
SALE, MORTGAGE, ENCUMBRANCE
Rule 89
Q: What can be subject to sale? What can be sold?
S: We have Section 1.
Rule 89; Section 1. Order of sale of personalty. — Upon
the application of the executor or administrator, and on
written notice to the heirs and other persons interested, the
court may order the whole or a part of the personal estate to
be sold, if it appears necessary for the purpose of paying
debts, expenses of administration, or legacies, or for the
preservation of the property.
Q: So only personal?
S: Real properties may also be sold.
Q: What else?
S: Properties acquired on execution or foreclosure sale. And
the properties held by the deceased in trust.
Q: When you sell personal properties under Section 1,
under what conditions? When are you allowed to sell
personal properties?
S: The estate must be solvent.
Q: What are the reasons fro the sale of personal
properties? Remember when you sell personal
properties, you have to apply for court approval. So
what justification should you allege? What are the
grounds for you to sell personal properties?
S: It is provided under Section 4:
Rule 89; Section 4. When court may authorize sale of
estate as beneficial to interested persons. Disposal of
proceeds. — When it appears that the sale of the whole or a
part of the real or personal estate, will be beneficial to the
heirs, devisees, legatees, and other interested persons, the
court may, upon application of the executor or administrator
and on written notice to the heirs, devisees, and legatees
who are interested in the estate to be sold, authorize the
executor or administrator to sell the whole or a part of said
estate, although not necessary to pay debts, legacies, or
expenses of administration; but such authority shall not be
granted if inconsistent with the provisions of a will. In case of
such sale, the proceeds shall be assigned to the persons
entitled to the estate in the proper proportions.
That is one ground. It is beneficial.
Q: What are the other grounds?

So there can be subsequent distribution of assets

under these circumstances.

77
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
S: Under Section 1, when it is necessary for the purpose of
paying debts, expenses of administration, or legacies, or for
the preservation of the property.
Q: What is another reason? To pay debts? What else?
Q: When do you sell or encumber properties?
S: Under Section 2: “When the personal estate of the
deceased is not sufficient to pay the debts, expenses of
administration, and legacies, or where the sale of such
personal estate may injure the business or other interests of
those interested in the estate, and where a testator has not
otherwise made sufficient provision for the payment of such
debts, expenses, and legacies.”
Rule 89; Section 2. When court may authorize sale,
mortgage, or other encumbrance of realty to pay debts and
legacies through personalty not exhausted. — When the
personal estate of the deceased is not sufficient to pay the
debts, expenses of administration, and legacies, or where the
sale of such personal estate may injure the business or other
interests of those interested in the estate, and where a
testator has not otherwise made sufficient provision for the
payment of such debts, expenses, and legacies, the court, on
the application of the executor or administrator and on
written notice of the heirs, devisees, and legatees residing in
the Philippines, may authorize the executor or administrator
to sell, mortgage, or otherwise encumber so much as may be
necessary of the real estate, in lieu of personal estate, for
the purpose of paying such debts, expenses, and legacies, if
it clearly appears that such sale, mortgage, or encumbrance
would be beneficial to the persons interested; and if a part
cannot be sold, mortgaged, or otherwise encumbered
without injury to those interested in the remainder, the
authority may be for the sale, mortgage, or other
encumbrance of the whole of such real estate, or so much
thereof as is necessary or beneficial under the circumstances.
Q: When you sell real properties, is it necessary that
the entire property should be sold? Like all real
properties?
S: No.
Q: So what is the extent?
S: As are those necessary or beneficial under the
circumstances.
Q: So you do not have to sell the entire property is
only a portion thereof is needed. What if the property
cannot be divided such that you cannot sell a portion
thereof without diminishing the value of the rest of
the property?
ATTY T: So you have to dispose the entire
property so as not to diminish the value of
the property.
Q: What kind of debts are we talking here? Does it
include foreign debts?
78
S: Yes.
Q: If there are debts incurred in estate abroad, then
properties here in the Philippines can be sold to
answer the said debts?
S: It is found Under Section 5.
Rule 89; Section 5. When court may authorize sale,
mortgage, or other encumbrance of estate to pay debts and
legacies in other countries. — When the sale of personal
estate, or the sale, mortgage, or other encumbrance of real
estate is not necessary to pay the debts, expenses of
administration, or legacies in the Philippines, but it appears
from records and proceedings of a probate court in another
country that the estate of the deceased in such other country
is not sufficient to pay the debts, expenses of administration,
and legacies there, the court here may authorize the
executor or administrator to sell the personal estate or to
sell, mortgage, or otherwise encumber the real estate for the
payment of debts or legacies in the other country, in same
manner as for the payment of debts or legacies in the
Philippines.
Q: What is the limitation there?
Q: When a petition for sale, mortgage or
encumbrance is filed in court, what happens? Who
may oppose the sale, encumbrance or mortgage of
the realty?
S: Under Section 3:
Rule 89; Section 3. Persons interested may prevent such
sale, etc., by giving bond. — No such authority to sell,
mortgage, or otherwise encumber real or personal estate
shall be granted if any person interested in the estate gives a
bond, in a sum to be fixed by the court, conditioned to pay
the debts, expenses of administration, and legacies within
such time as the court directs; and such bond shall be for the
security of the creditors, as well as of the executor or
administrator, and may be prosecuted for the benefit of
either.
Q: Can you oppose the sale, mortgage or
encumbrance if the reason is to pay debts, expenses
and liabilities?
Q: What must be followed before the court can issue
an order allowing the sale, mortgage or
encumbrance?
S: It is provided under Section 7:
Rule 89; Section 7. Regulation for granting authority to
sell, mortgage, or otherwise encumber estate. — The court
having jurisdiction of the estate of the deceased may
authorize the executor or administrator to sell personal
estate, or to sell, mortgage, or otherwise encumber real
estate, in cases provided by these rules and when it appears
necessary or beneficial under the following regulations:
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(a) The executor or administrator shall file a written
petition setting forth the debts due from the
deceased, the expenses of administration, the
legacies, the value of the personal estate, the
situation of the estate to be sold, mortgaged, or
otherwise encumbered, and such other facts as
show that the sale, mortgage, or other
encumbrance is necessary or beneficial.
(b) The court shall thereupon fix a time and place for
hearing such petition, and cause notice stating the
nature of the petition, the reasons for the same,
and the time and place of hearing, to be given
personally or by mail to the persons interested, and
may cause such further notice to be given, by
publication or otherwise, as it shall deem proper;
(c) If the court requires it, the executor or
administrator shall give an additional bond, in such
sum as the court directs, conditioned that such
executor or administrator will account for the
proceeds of the sale, mortgage, or other
encumbrance;
(d) If the requirements in the preceding subdivisions of
this section have been complied with, the court, by
order stating such compliance, may authorize the
executor or administrator to sell, mortgage, or
otherwise encumber, in proper cases, such part of
the estate as is deemed necessary, and in case of
sale the court may authorize it to be public or
private, as would be most beneficial to all parties
concerned. The executor or administrator shall be
furnished with a certified copy of such order;
(e) If the estate is to be sold at auction, the mode of
giving notice of the time and place of the sale shall
be governed by the provisions concerning notice of
execution sale;
(f) There shall be recorded in the registry of deeds of
the province in which the real estate thus sold,
mortgage, or otherwise encumbered is situated, a
certified copy of the order of the court, together
with the deed of the executor or administrator for
such real estate, which shall be as valid as if the
deed had been executed by the deceased in his
lifetime.
So these are the procedures to be followed in order
for the sale, mortgage or encumbrance shall be valid.
You have to file a petition in court. That is why, you
need to state the ground why you are selling or
mortgaging a property of the estate. You have to
state their your grounds.
Q: Whom do you furnish your petition? Who should
be given notice of your petition?
S: The parties in interest.
Q: After the petition is filed, what will the court do?
79
S: Fix the time and hearing, R89, Section 7, letter B.
So there will be an order setting the time and
hearing.
Q: What will happen to that order?
S: The executor and administrator shall be furnished of the
said order. The persons interested must also be given the
order.
Q: How will the order be served? Is publication
necessary?
S: No.
So publication of the notice of hearing is optional,
depending on the discretion of the court.
Q: After the notices have been sent out, what will happen
next?
ATTY T: That presupposes that the sale was
approved, that the petition was granted to
sell the property.
Q: Can that be done after the sending out of the
notices?
ATTY T: You should have a hearing first and
the court will assess the merits of your
petition whether there are really valid
grounds.
If the court grants the petition, that is when
the administrator or executor may be
required to pose an additional bond.
Q: Is it really mandatory to post bond?
S: No. It is only when the court requires you.
So it is discretionary on the part of the court. If the
court orders it and the bond is posted, then that is the
time that an order will be issued.
Q: Suppose the court will say that sale shall be
publicly made, what rules shall govern?
ATTY T: If it is public sale, you follow the rules on
auction or execution sale.
“If the estate is to be sold at auction, the mode of
giving notice of the time and place of the sale shall
be governed by the provisions concerning notice of
execution sale”
Q: After the sale has been made, what happens next?
A: “There shall be recorded in the registry of deeds of the
province in which the real estate thus sold, mortgage, or
otherwise encumbered is situated, a certified copy of the
order of the court, together with the deed of the executor or
administrator for such real estate, which shall be as valid as
if the deed had been executed by the deceased in his
lifetime.”
Q: What happens if the sale is made without court
order?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
S: The sale is void.
Q: What happens if the sale was made with court
order but without notice?
S: It is still void.
Q: Who should be notified? Who are entitled to
notice? Failure to give notice is fatal.
ATTY T: All persons who have interest in the
estate should be given notice. Without that
notice, the sale is void.
Q: What is the extent if you say that there was no
notice given to the interested persons? The sale, as
you said, is void. How about the order that authorized
the sale?
So the notice requirement here is important. It is mandatory.
Q: To whom will you give the authority to sell?
S: To the executor or administrator.
Q: Is there an exception.
S: Yes, in the case of Sandejas vs. Lina.
From the case: “While this Rule does not specify
who should file the application, it stands to reason
that the proper party must be one .who is to be
benefited or injured by the judgment, or one who is
to be entitled to the avails of the suit.”
Q: So if it is granted to the executor or administrator,
what is the legal basis for giving the authority to sell
to the executor or administrator?
ATTY T: Section 7 is the procedural law.
Q: What is the substantive law that requires authority
to sell to be granted?
Q: What happens if the authority to sell is granted to
the heirs? Can the heirs be given an authority to sell?
S: Yes.
Q: What is the basis for that?
S: It was in the case of Opulencia vs. CA.
Q: Are you saying now that the procedure under
Section 7 or Rule 89 can be given to the heirs? Can
that be granted to the heirs?
From the case: Section 7 of Rule 89 of the Rules of
Court is not applicable, because petitioner entered
into the Contract to Sell in her capacity as an
heiress, not as an executrix or administratrix of the
estate. In the contract, she represented herself as
the "lawful owner" and seller of the subject parcel
of land.
The Supreme Court emphasized that hereditary
rights are vested in the heir or heirs from the
80
moment of the decedent's death. Petitioner,
therefore, became the owner of her hereditary
share the moment her father died. Thus, the lack of
judicial approval does not invalidate the Contract to
Sell, because the petitioner has the substantive
right to sell the whole or a part of her share in the
estate of her late father.
Q: if an heir is to sell his share, is there an authority
to sell required?
S: No.
Q: Can the authority to sell be granted to the heirs?
S: No. It can only be granted to the executors and
administrators.
Q: Why can’t it be granted to the heirs?
That is why you also need to know the substantive basis. It
is found in the jurisprudence assigned to you. You have to
find the substantive law not only the procedural law.
Q: What possible grounds can you state in your
petition for sale, encumbrance or mortgage of
properties? Summarize now.
S: When it is beneficial to interested persons, when the
testator has not otherwise made sufficient provision for the
payment of debts.
ATTY T:
Under the Rules, there are three grounds:
1. Payment of debts or expenses
2. Beneficial to third person
3. Sale has been contracted by the deceased or
held by the deceased in trust - so there is a
need to transfer the properties to the
beneficiary or to the buyer to whom he
agreed to sell the property during his lifetime.
In that sense, when the property has been contracted
by the deceased during his lifetime, then that will be
respected. So not necessarily the executor or
administrator ang mag-apply but that buyer. The said
buyer is an interested person. He is the real-party-in-
interest. That was the ruling of the court in the case
of Sandejas.
So the authority to sell need not be issued to the
executor or administrator. If during his lifetime, the
deceased agreed to sell the property to the buyer,
there may be a contract to sell or contract of sale but
his death intervened. Somehow, there was no
transfer of the properties. The purpose there is not
really to pay the debts or expenses of administrator
nor for the benefit of the heirs. In that regard, the
authority to sell need not be applied by the executor
or administrator. The buyer can apply for the said
authority.
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
So you have to check. You have to be able to
distinguish what is the ground for sale, mortgage and
encumbrance. In each type, different set of rules will
apply.
Q: In particular, when what is being sought by the
mortgage of the property, not necessarily the sale,
what is required?
Take note that Section 7 applies when you want to
sell, mortgage or encumber property.
S: The mortgage must be approved by the court.
So there is a need to present the contract of the court
for approval. Without such approval, then the
transaction is void. That is a jurisdictional
requirement under jurisprudence.
Q: Why is court approval necessary before the
property can be sold, mortgaged or encumbered?
Q: What is the purpose of court approval? What is the
purpose aside from binding third persons?
ATTY T: If you are going to sell properties to
pay debts or expenses of administration, then
you have to ensure that creditors are notified.
That is why they are included in the notice.
This is part of the transparency requirement
in the dealings of administration.
Q: What does the power of the court to supervise the
sale?
S: It includes the power to nullify the sale.
Q: Can the court enforce the obligations under the
Deed of Sale?
S: Yes.
Q: When the property is sold without court approval,
does the settlement court have the authority to
nullify the sale?
S: Yes.
From the case of Lee vs. RTC of Quezon:
“Our jurisprudence is therefore clear that (1) any
disposition of estate property by an administrator or
prospective heir pending adjudication requires court
approval and (2) any unauthorized disposition of
estate property can be annulled by the probate
court, there being no need for separate action to
annul the unauthorized disposition.”
Q: Which shall prevail, a contract to sell made by the
decedent during his lifetime or a contract of sale
made by the executor without court approval?
S: It is the contract of sale.
From the case of Liu vs. Loy: In Frank Liu’s case,
as successor-in-interest of Benito Liu, his seller was
Jose Va o, who during his lifetime executed the
81
contract to sell through an attorney-in-fact, Teodoro
Va o. This is a disposition of property contracted by
the decedent during his lifetime. Section 8 of Rule
89 specifically governs this sale xxx. Thus, Frank Liu
applied to the probate court for the grant of
authority to the administratrix to convey the lots in
accordance with the contract made by the decedent
Jose Va o during his lifetime. The probate court
approved the application.
In Teresita Loy’s case, her seller was the Estate of
Jose Va o. Teodoro Va o executed the contract of
sale in his capacity as administrator of the Estate of
Jose Va o, the registered owner of the lots. The
Court has held that a sale of estate property made
by an administrator without court authority is void
and does not confer on the purchaser a title that is
available against a succeeding administrator.
Q: After the debts have been paid, if the estate is
solvent and there remains properties of the estate,
given there is a residue, what happens? What will
happen to the estate?
ATTY T: On the final stretch, this is already the
last stage. If the estate is solvent, the debts
have been paid and there remains a property,
this is the final stage of the settlement. I-
didistribute na sa mga heirs ang kanilang
mga shares.
Rule 90; Section 1. When order for distribution of reside
made. — When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law,
have been paid, the court, on the application of the executor
or administrator, or of a person interested in the estate, and
after hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming them and
the proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective shares
from the executor or administrator, or any other person
having the same in his possession. If there is a controversy
before the court as to who are the lawful heirs of the
deceased person or as the distributive shares to which each
person is entitled under the law, the controversy shall be
heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided for,
unless the distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for the payment of
said obligations within such time as the court directs.
Q: How will you do that? Who will execute that?
S: There will be another petition filed in the court. There will
be notice and hearing.
Q: How should the partition be made? Who
determines which property goes to a particular heir?
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
ATTY T: If the heirs agree with the partition,
then they will sign on it. That is the end of it.
But if they do not agree, then the safest that
the court can do is to recognize each heir as
co-owner in the property to the extent of
their intestate heir as provided under the Civil
Code. So kung surviving spouse ka, ½ + ½ of
the other share. Or if you are a child, then
your corresponding share. Or the court may
decide to award one property to each heir by
drawing of lots. Depende na yan on how the
court will assign. But the best recourse would
be for the parties to agree – for them to sign
a project of partition.
Q: At this final stage, supposing there is an issue on
filiation brought up by an alleged illegitimate child.
Can that still be entertained?
S: Yes.
In the case of Tayag vs. CA, it was ruled:
“Applying the foregoing principles to the case at
bar, although petitioner contends that the complaint
filed by herein private respondent merely alleges
that the minor Chad Cuyugan is an illegitimate child
of the deceased and is actually a claim for
inheritance, from the allegations therein the same
may be considered as one to compel recognition.
Accordingly, Article 175 of the Family Code finds no
proper application to the instant case since it will
ineluctably affect adversely a right of private
respondent and, consequentially, of the mind child
she represents, both of which have been vested
with the filing of the complaint in court. The trial
court is therefore, correct in applying the provisions
of Article 285 of the Civil Code and in holding that
private respondent's cause of action has not yet
prescribed.”
ATTY T: So the settlement court will entertain claims
made by illegitimate children, even at the distribution
stretch. Patapos na sana pero may asungot pang
dumating. So what happens? Pending muna lahat.
Aayusin muna yan. Ililitigate muna yan, as in ordinary
case determine kung illegitimate ba talaga siya or
not. You see how tedious it is? You have to deal with
stages and cases one by one bago ka umabot sa
distribution of assets. Buti nga kung aabot pa sa
distribution stage, may matitira pa sa’yo pero kung
settlement of claims lang, wala ng matitira sayo.
Q: How about collation? Can the court charge to the
heirs whatever advances they may have gotten
during the lifetime of the deceased?
S: It is found in Section 2.
Rule 90; Section 2. Questions as to advancement to be
determined. — Questions as to advancement made, or
alleged to have been made, by the deceased to any heir may
82
be heard and determined by the court having jurisdiction of
the estate proceedings; and the final order of the court
thereon shall be binding on the person raising the questions
and on the heir.
At this point, the heirs can raise the issue of collation.
If there are heirs who have already received
properties duringt he lifetime of the deceased and
they believed that it should be considered by the
court, then it can be entertained during the
distribution stage.
Q: Who shall pay the expenses of the distribution?
S: It is found in Section 3.
Rule 90; Section 3. By whom expenses of partition paid. —
If at the time of distribution the executor or administrator
has retained sufficient effects in his hands which may
lawfully be applied for the expenses of partition of the
properties distributed, such expenses of partition may be
paid by such executor or administrator when it appears
equitable to the court and not inconsistent with the intention
of the testator; otherwise, they shall be paid by the parties in
proportion to their respective shares or interest in the
premises, and the apportionment shall be settled and
allowed by the court, and, if any person interested in the
partition does not pay his proportion or share, the court may
issue an execution in the name of the executor or
administrator against the party not paying the sum assessed.
So the expenses may be paid by the executor or by
the distributes; it will be in proportion to the
properties they received.
Q: What happens to the order of partition?
A: Section 4.
Rule 90; Section 4. Recording the order of partition of
estate. — Certified copies of final orders and judgments of
the court relating to the real estate or the partition thereof
shall be recorded in the registry of deeds of the province
where the property is situated.
Q: Can you set aside the order of distribution? If so,
what are the grounds?
Q: When the court issues the order of partition, who
is bound by that order? Who can question the order
of partition?
S: The excluded heir.
Q: If you are the excluded heir, what are your
remedies?
A:
1) A motion to set aside the order of distribution;
2) Accion reinvindicatoria and
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
3) Reopen the settlement proceeding.
Q: Can the heirs execute extra-judicial partition of
asset before the court issues an order of partition?
Can they do that? Instead of submitting a project of
partition, they would rather execute an extra-judicial
partition to expedite the proceedings?
S: No.
ESCHEAT PROCEEDINGS
Rule 91
What can be subject to Escheat Proceedings?
Section 1. When an by whom petition filed. — When a
person dies intestate, seized of real property in the
Philippines, leaving no heir or person by law entitled to the
same, the Solicitor General or his representative in behalf of
the Republic of the Philippines, may file a petition in the
Court of First Instance of the province where the deceased
last resided or in which he had estate, if he resided out of
the Philippines, setting forth the facts, and praying that the
estate of the deceased be declared escheated.
Is that all escheat proceedings all about?
Section 5. Other actions for escheat. — Until otherwise
provided by law, actions reversion or escheat of properties
alienated in violation of the Constitution or of any statute
shall be governed by this rule, except that the action shall be
instituted in the province where the land lies in whole or in
part.
So there are two kinds of proceedings covered here:
1. Reversion of the properties erroneously taken
by the State
2. Escheats in favor of the government for
properties left by the decedent with no heirs
Let’s go to the second type.
Q: What is the element for this type of proceeding to
apply?
S: There are no heirs and no will.
Q: How do you apply for escheats?
S: Under Section 1, “the Solicitor General or his
representative in behalf of the Republic of the Philippines,
may file a petition in the Court of First Instance of the
province where the deceased last resided or in which he had
estate, if he resided out of the Philippines, setting forth the
facts, and praying that the estate of the deceased be
declared escheated.”
ATTY T: So it will be initiated by the Solicitor General
or any of his authorized representatives.
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Q: What happens after the court receives the petition
for escheat?
S: Under Section 2, it is provided:
Section 2. Order for hearing. — If the petition is sufficient in
form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date and place for the
hearing thereof, which date shall be not more than six (6)
months after the entry of the order, and shall direct that a
copy of the order be published before the hearing at least
once a week for six (6) successive weeks in some newspaper
of general circulation published in the province, as the court
shall be deem best.
So there will be a hearing. Again, there is publication
but obviously no more personal notice. It used to be 3
weeks, now 6 weeks na. The hearing date must not
be more than 6 months. So may limitation sa date of
hearing. After that, merong hearing.
Q: What do you need to prove during the hearing?
S: Under Section 3:
Section 3. Hearing and judgment. — Upon satisfactory
proof in open court on the date fixed in the order that such
order has been published as directed and that the person
died intestate, seized of real or personal property in the
Philippines, leaving no heir or person entitled to the same,
and no sufficient cause being shown to the contrary, the
court shall adjudge that the estate of the estate of the
deceased in the Philippines, after the payment of just debts
and charges, shall escheat; and shall, pursuant to law, assign
the personal estate to the municipality or city where he last
resided in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the same is
situated. If the deceased never resided in the Philippines, the
whole estate may be assigned to the respective
municipalities or cities where the same is located. Shall
estate shall be for the benefit of public schools, and public
charitable institutions and centers in said municipalities or
cities.
The court, at the instance of an interested party, or on its
own motion, may order the establishment of a permanent
trust, so that the only income from the property shall be
used.
So that is how the properties will be distributed. Take
note that during the hearing, you have to comply with
the publication requirements.
Q: If there are debts, is there a provision for that?
Supposing there are debts, how will the debts be
settled?
S: They shall be satisfied first.
If there are debts, of course, they shall be paid first. Section
4 of Rule 9:
 SPECIAL PROCEEDINGS
From the lectures of Father Gus Nazareno
Corporations Law | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Section 4. When and by whom claim to estate filed. — If a

devisee, legatee, heir, widow, widower, or other person
entitled to such estate appears and files a claim thereto with
the court within five (5) years from the date of such
judgment, such person shall have possession of and title to
the same, or if sold, the municipality or city shall be
accountable to him for the proceeds after deducting
reasonable charges for the care of the estate; but a claim not
made within the said time shall be forever barred.

- FIN -
God bless us all 3Dragons!
KJavier

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