Professional Documents
Culture Documents
0, 2016]
deja [already] + entendu [heard] = youve heard all of this before
(This work is based on Atty. Gerard Chans syllabus for the Special Proceedings subject as taught
in FEU-IL. Notes in red are opinions of the review lecturer,1 of authors2 on the subject, or of the
reviewee. Cited provisions are from the Rules of Court unless otherwise provided.)
SPECIAL PROCEEDINGS
R72 (subject matter & applicability of general rules)
Meaning & scope of special proceedings
1. Special proceeding, defined (R1, S3[c]): remedy by w/c a party seeks to establish
(a) Status
(b) Right
(c) Particular fact
2. Scope (S1[a]-[n]): [CATCH-AGED-SHARC]
- Change of name
- Absence & death; declaration of
- Trustees
- Constitution of family home
- Hospitalization of insane persons
- [Judicial] approval of voluntary recognition of minor natural children
- Guardianship & custody of children
- Escheat
- [Voluntary] dissolution of corporations
- Settlement of estate of deceased persons
- Habeas corpus
- Adoption
- Rescission & revocation of adoption
- Cancellation of correction of entries in the civil registry
J. Herrera adds: liquidation, corporate recovery, & arbitration
Cases: (a) Vda. de Manalo vs. CA Art. 222, CC (i.e. the earnest efforts rule) applies only
to ordinary civil actions & not to special proceedings
(b) Natcher vs. CA usually, in special proceedings, no formal pleadings are required
(XPN: where the statute expressly provides otherwise); also, the remedy is granted
generally upon application/motion
Nature of special proceedings
Case: Tabuada v. Ruiz special proceedings are NON-CONTENTIOUS in nature (i.e. do not
depend on the will of an actor, but on a state/condition of things/persons not entirely w/in the
control of the parties interested)
Implication: failure to consummate a compromise agreement/amicable settlement does
not justify dismissal (w/c is to be ordered "only in the extreme case where the
termination of the proceeding is the sole remedy consistent w/ equity & justice")
Applicability of rules on civil actions (S2) absent special provisions + as far as practicable
:
A: Action for DAMAGES vs. heirs responsible for fraudulent exclusion (PEZA vs. Fernandez)
Summary settlement of estates of small value (i.e. where estates gross value P10K) (S2)
As distinguished from extrajudicial settlement per se
SUMMARY SETTLEMENT OF ESTATES
EXTRAJUDICIAL SETTLEMENT
OF SMALL VALUE
Does not require court intervention
Requires court intervention
Value of estate is immaterial
Gross value of estate P10K
Allowed in both testate & intestate
Allowed only in intestate succession
succession
Proper only when there are no outstanding
Proper even if there are debts (the court
debts of the estate at the time of
will make provisions for payment thereof)
settlement
Instituted by any interested party & even
Can be resorted to only at the instance (&
by a creditor of the estate, w/o consent of
by agreement) of all the heirs
all the heirs
R75 (production of will, allowance of will necessary)
Probate, mandatory
WHY? Art. 838, CC (cf. S1) no will shall pass either real or personal property UNLESS
PROVED & ALLOWED IN ACCORDANCE W/ RoC!
Probate, proceeding in rem Case: Alaban vs. CA w/ the corresponding publication of the
petition for probate, the court's jurisdiction extends to all persons interested in the will (or in the
settlement of the estate of the decedent)
R76 ([petition for] allowance/disallowance of will)
Jurisdictional requirements for probate of will (S2)
1. Jurisdictional facts
(a) That a person died leaving a will
(b) Residency w/in territorial jurisdiction of the court @ time of death
(c) Leaving property w/in territorial jurisdiction, even if non-resident @ time of death
2. Names/ages/residences of heirs/legatees/devisees
3. Probable value & character of properties of the estate
4. Name of person for whom letters (testamentary/of execution) are prayed
5. If the will has not been delivered to the court: name of person w/ custody of same
NOTE: No defect in the petition (i.e. re: above reqs.) shall render void the
- Allowance of the will; or
- Issuance of letters
What happens after the filing of the petition? (S3-5)
1. PUBLICATION OF NOTICE OF HEARING
3 weeks successively, in a newspaper of general circulation in the province
2. PERSONAL/INDIVIDUAL NOTICE
- Heirs
BY MAIL (deposited @ post office at least 20 DAYS before hearing)
- Dev./Leg.
or PERSONALLY (at least 10 DAYS before hearing)
Case: De Aranz vs. Galing individual notice to known legatees/devisees =
NOT a jurisdictional requirement in the probate of a will (only a procedural
one, for expedience/convenience)
3. WITNESS REQUIREMENT(S)
UNCONTESTED
CONTESTED
Notarial
1 WITNESS is enough
ALL subscribing witnesses &
1. Of legal age
2. Resident of PH
3. Competent, i.e. to whom S1(c) is inapplicable (not unfit in the opinion of the court to
execute the duties of his/her trust by reason of drunkenness, improvidence, want of
understanding/integrity, conviction of an offense involving moral turpitude)
Order of preference in appointment of administrator (S6)
1. SURVIVING SPOUSE, or NEXT OF KIN, or BOTH (@ courts discretion) or to SUCH
[other] PERSON AS [the former] REQUESTS TO HAVE APPOINTED*
2. ONE OR MORE OF THE PRINCIPAL CREDITORS* (where those in [1] are
incompetent/unwilling, or neglected to apply for admin./request that admin. be granted to
another person w/in 30 DAYS after death of decedent)
3. SUCH OTHER PERSON AS THE COURT MAY SELECT (in absence of [2])
[*common element = competence & willingness to serve!]
Case: Uy vs. CA granted that the probate court cannot arbitrarily disregard preferential rights
of surviving spouse to administration, but if such person enjoying preferential rights is
UNSUITABLE, the court may appoint another person
[e.g. adverse interest of some kind/hostility to those immediately interested in the estate]
R79 (opposing issuance of letters testamentary, petition & contest for letters of admin.)
Interested party (S1) any person interested in a will
Case: Tayag vs. Tayag-Gallor interested party = one who would be benefited by the
estate (e.g. heir; one w/ a claim against the estate like a creditor); interest must be
material and direct, not merely indirect or contingent
Thus, where the right of the person filing a petition for the issuance of letters of
administration is dependent on a fact w/c has not been established, or worse,
can no longer be established, the interest of said person is contingent only, &
does not make him/her an interested party (here, an illegitimate child who
petitioned for letters of administration is still an interested party
notwithstanding the fact that judicial recognition can no longer be done,
the parent-decedent being dead, as filiation can still be established by
proving voluntary recognition!)
R80 (special administrator)
Cases: (a) Heirs of Castillo vs. Gabriel
- Special administrator, defined: representative of a decedent appointed by the
probate court to care for & preserve the estate UNTIL AN EXECUTOR or
GENERAL ADMINISTRATOR IS APPOINTED
- Appointment lies in the sound discretion of the probate court
Implications
> Qualifications Manungas vs. Loreto the law is silent as to the
qualifications of a sp. admin.; thus, the question of whether a person
is qualified falls w/in the sound discretion of the court!
> Number of sp. admins Matias vs. Gonzales the court, in its
sound discretion, may appoint several special co-administrators
(jointly exercising powers of one special administration)!
> How to contest not by appeal (but as this is an issue involving
the exercise of discretion, surely certiorari [R65] will lie)
> Removal Co vs. Rosario likewise discretionary!
(b) De La Cavada vs. Butte, Ozaeta vs. Pecson appointment = denial of the power
to appoint regular admin. pending appeal from allowance/disallowance of will []
Case: Garcia vs. Garcia a court w/c takes cognizance of [in]testate proceedings has
jurisdiction to determine WON prop. is part of the estate, & thus to be included in the inventory
Period (S1) w/in 3 MONTHS after his/her appointment
GR:
Question re: title to property cannot be passed upon on testate or intestate proceedings
XPN: Provisional inclusion in inventory
Cases (a) Guingguing vs. Abuton where one prays merely for inclusion/exclusion
:
from the inventory of the property, in w/c case the probate court may pass
PROVISIONALLY upon the question w/o prejudice to its final determination
in a separate action
(b) Cuizon vs. Ramolete if the properties in question are indisputably part of
the estate, well & good, but if there is a dispute, the parties have to resort to
an ordinary action for a final determination of their conflicting claims
R84 (general powers & duties of executors & administrators)
Powers & duties; incidents thereto [ALD]
1. ADMINISTRATION
Case [re: incidents to administration]
s:
(a) Vasquez vs. Porta handle & marshal assets of the deceased
S3 retention of estate to pay debts & expenses of administration
(b) Chua Tan vs. De la Rosa re: marshaling, to bring action as
necessary
(c) Tambunting vs. San Jose manage estate wisely, in
businesslike manner
S1 if deceased is a partner, access to partnership books & property
S2 duty to maintain bldgs. in tenantable repair
[re: degree of diligence; continuing business of deceased] Wilson vs.
Rear
(a) Ordinary diligence is required; want of w/c opens admin. to liability
(b) Re: continuing business in w/c deceased was engaged in @ time
of death: administrator requires a court order, absent w/c he has
no authority (even if he is in GF!) and is liable for all the losses
incurred thereby, w/o right to receive profits
[re: lease] San Diego vs. Nombre
(a) Lease = ACT OF ADMINISTRATION!
Thus, no need for prior judicial authority & approval
[NO SPA needed for an admin. to lease realty for 1+
year(s)!]
(b) Administrator & agent, distinguished
ADMINISTRATOR
AGENT
Appointed by the court;
representative of the court, the
Answerable only to his/her principal
heirs, & creditors of the estate
Requires bond before entering into
No bond requirement
his/her duties
Acts are subject to specific
Acts, limited only to those allowed
provisions of law & orders of the
by the principal (by powers of
appointing court
attorney, etc.)
2. LIQUIDATION
Case: Flores vs. Flores pay debts of the deceased + determine assets & liabilities
3. DISTRIBUTION (R90 S1) after all debts & expenses have been paid, distribute net
estate among known heirs/devisees/legatees & all other interested persons
Conflict of interest
Cases: (a) Jaroda vs. Cusi an administrator is not permitted to deal with him/herself as an
individual in any transaction concerning property of the estate
(b) Mananquil vs. Villegas per Art. 1646, CC (cf. Art. 1491), execs./admins are
prohibited from being lessees (personally or through another) of estate prop.
In sum: puwedeng magpaupa, pero hindi puwedeng umupa!
R85 (accountability & compensation of executors & administrators)
Duty to account
Cases: Joson vs. Joson, Tumang vs. Laguio CANNOT BE WAIVED!
1. The whole of the estate [+proceeds of so much as is sold] (S1)
Implications: exec./admin gains/suffers
(a) NO profit from increase in value of any part of the estate
(b) NO loss from decrease in value of same w/o exec./admins fault
2. Excess when any part of the estate is sold for more than its appraisement
What?
Exec./admin is not responsible for loss if sale has been justly made
(S1-5)
3. Income from the realty used by him (S4)
4. Waste (S5) i.e. where, due to neglect or unreasonable delay
(a) Value of estate decreases, or
(b) Unnecessary costs/expenses accrue, or
(c) Person interested in the estate suffers loss
[+] NOT accountable for debts due decedent uncollected w/o fault of exec./admin!
When?
W/in 1 YEAR from receiving letters (testamentary/of administration) & AS THE
(S8-9)
COURT MAY REQUIRE until the estate is wholly settled!
Charges and expenses of the administrator [i.e. executors/administrators fees] (S7)
1. NECESSARY EXPENSES*
2. COMPENSATION FOR SERVICES*
(a) P4/day, or
(b) Commission (upon value of estate disposed by him)
- 2% of the first P5K
- 1% >P5K, P30K
- % >P30K, P100K
- % >P100K
* GREATER SUM may be allowed if:
> Estate is large
> Settlement was attended w/ great difficulty
> Required high degree of capacity on the part of the executor/administrator
Case: Rodriguez vs. Silva
(a) Amt. of fees = discretionary upon probate court; unappealable (but certiorari-able!)
(b) GR:
Being a lawyer is not by itself a factor in assessing an administrator's fee
XPN: It should be considered when the administrator was able to stop what
appeared to be an improvident disbursement of a substantial amount w/o
having to employ outside legal help @ additional expense to the estate
3. STIPULATION IN THE WILL RE: COMPENSATION
GR:
Deemed full compensation!
XPN: Executor/administrator renounces claim under stipu. by written inst. filed in court
Improper charges
Cases:
(a) Sison vs. Teodoro expenses incurred by an executor/administrator for the filing
of a bond do not constitute a proper charge against the estate
(b) Uy Tioco vs. Imperial fees for the attorney of an executor/administrator are the
latters personal liability (XPN: if beneficial to the estate & reasonable, the
executor/administrator is entitled to reimbursement)
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GR:
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Claim to escheated property (S4) filed by heir w/in 5 YEARS from date of escheat judgment
Cases: In re: Estate of Lao Sayco, Republic vs. CA & Solano the person who lays claim to
the property left by the decedent as heir must prove his identity & rights
R109 (appeals in special proceedings) from J/O rendered by RTC (or J&DRC)
Appealable matters (& exceptions) (S1) [ADCAS-FINAL]
1. Allows/disallows a will
2. Determines the lawful heirs; their shares
3. Re: claims against the estate
4. Settles the account of exec./admin, trustee, guardian
5. Re: settlement of estate; administration of trustee/guardian, final determination of the
rights of party appealing (XPN: No appeal from appt of sp. adm. [sound discretion])
6. Final J/O in the case, affecting substantial rights of appellant (XPN: Order re: MR/NT)
Case: Republic vs. Nishina R109 contemplates multiple appeals during the pendency of
special proceedings (requiring [record on appeal + notice of appeal], as the original records of
the case should remain w/ the court below to enable the rest of the case to proceed in the event
that a separate & distinct issue is resolved by said court and held to be final)
Where no other matter remains to be heard & determined, no record of appeal is needed
Advance distribution (S2)
1. Re: settlement of estate
2. Notwithstanding a pending controversy/appeal (re: part of estate not affected by same)
3. Discretionary upon the court (& in terms it deems just/proper)
4. R90 applies
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2. Alien
(a) same qualifications laid down for PH citizens
(b) aliens country has diplomatic relations w/ PH
(c) residency in PH for at least 3 continuous yrs. prior to filing of
application for adoption (+ maintenance thereof until adoption
decree is entered)
(d) certification of [1] legal capacity to adopt, & [2] allowance of aliens
government for adoptee to enter their country as the formers
adopted child (issued by aliens diplomatic/consular office, or any
appropriate government agency)
[XPN: (c) & (d) are waivable for the following aliens:]
- former Filipino seeking to adopt relative w/in 4th civil degree
- alien seeking to adopt legitimate child of Filipino spouse
- alien married to PH citizen, seeking to jointly adopt relative of
Filipino spouse w/in 4th civil degree
3. Guardian, w/ respect to the ward (after termination of guardianship &
clearance of guardians financial accountabilities)
GR:
Husband & wife shall jointly adopt
XPN: 1. One seeks to adopt a legitimate child of his/her spouse
2. One spouse seeks to adopt his/her own illegitimate child
Provided the other spouse consented thereto
3. Spouses are legally separated
1. Any person <18 y/o declared available for adoption (adm./jud.)
2. Legitimate son/daughter of one spouse (adopter: other spouse)
3. Illegitimate son/daughter (by a qualified adopter)
to improve his/her status to that of legitimacy
Adoptee
4. Person of legal age, if prior to the adoption, consistently considered &
(S8)
treated by adopter as his/her own child since minority
5. Child whose adoption has been previously rescinded
6. Child whose biological/adoptive parent(s) has/have died, provided that
no proceedings shall be initiated w/in 6 months from the time of death
of said parent(s)
1. Adoptee (10+)
2. Biological parent(s), if known; or legal guardian/proper government
instrumentality w/ legal custody of the child
3.
Legitimate/adopted children (10+) of adopter(s) & adoptee*
Consent
reqt (S9) 4. Illegitimate children (10+) of adopter if living w/ him/her & spouse*
5. Spouse of adopter or adoptee*
[* if any]
Consent is manifested by affidavit of consent!
Supervised trial custody period (S12):
1. Requisite for the granting of an adoption decree
2. At least 6 months
(a) Can be reduced motu proprio or upon motion if the court finds it to be in the
best interests of the adoptee (court shall state reasons therefor)
(b) The period is irreducible for aliens
XPN: The period may be reduced for aliens for whom the residency &
certification requirements are waivable (see previous page)
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DOB
error/mistake in the entry
4. Change of sex of a person
which can be corrected/changed by the concerned city/municipal civil registrar or
consul general in accordance w/ the provisions of RA 9048 as amended by RA
10172 & the IRR (Sec. 1, as amended)
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2. Any person of legal age, having direct and personal interest in the correction of a clerical
or typographical error in the day and/or month in the date of birth of a person in the civil
register for birth, may file the petition.
A person is considered to have direct and personal interest when [s]he is the:
Owner of the record; or
The owner's spouse, child, parent, brothers, sister, grandparent, guardian; or
Any other person duly authorized by law or by the owner of the document
sought to be corrected
provided that when a person is a minor or physically or mentally incapacitated, the
petition may be filed on his/her behalf by his/her spouse, or any of his/her children,
parents, brothers, sisters, grandparents, guardians, or persons duly authorized by law.
(IRR, Rule 3)
3. For correction of a clerical or typographical error in sex, the petitioner affected by such
error shall personally file the petition with the civil registry office where the birth
certificate is registered. (IRR, Rule 3)
+ a certification from the appropriate law enforcement agencies that he has no pending case or
no criminal record. (Sec. 3) Note that all petitions may be availed of only once. (Sec. 5, as
amended)
RE: change of name
Change shall be reflected in the birth certificate by way of marginal annotation
In case there are other civil registry records of the same person which are
affected by such change, the decision of approving the change of first name in
the birth certificate, upon becoming final and executory, shall be sufficient to be
used as basis in changing the first name of the same person in his other affected
records w/o need for filing a similar petition; successful petitioner need only file a
written request/ the concerned C/MCR, CG or D/CR to make such marginal
annotation, attaching thereto a copy of the decision. (2001 IRR, Rule 12)
WHERE CAN IT BE DONE?
For correction of clerical/typographical error in an entry and/or change of first name or
nickname, or in the entry of the day and/or month in the date of birth:
If petitioner resides/is domiciled in the
city/municipality where the record is
kept
If petitioner has already migrated to
another place in the country & it would
not be practical for him/her, in terms of
transportation expenses, time, & effort, to
appear in person
If petitioner is presently residing/domiciled
in a foreign country
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If petition is for
name/nickname
change
of
+
above
requirements
+
clearance/certification that the owner of the
document
has
no
pending
administrative/civil/criminal case, or no
criminal record, w/c shall be obtained from
the: (a) employer, if employed; (b) NBI; (c)
PNP + affidavit of publication from the
publisher and a copy of the newspaper
clipping (2001 IRR, Rule 8)
above requirements + earliest school
record/documents,
medical
records,
baptismal certificate and other documents
issued by religious authorities + affidavit of
publication from the publisher and a copy of
the newspaper clipping (IRR, Rule 6)
above requirements + earliest school
record/documents, etc. + a certification
issued by an accredited government
physician attesting to the fact that the
petitioner has not undergone a sex
change/transplant procedure (Sec. 5, as
amended) + affidavit of publication from the
publisher and a copy of the newspaper
first
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For petitions
General
filed
with
the
Consul
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UNFAVORABLE DECISION
In case the petition is denied by the
city/municipal civil registrar or the consul
general, petitioner may:
1. Appeal same to Civil Registrar General
within ten (10) working days after the
receipt of the city/municipal civil
registrars decision; or
2. File the appropriate petition w/ the
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