SPECIAL PROCEEDINGS based on the lectures of

ATTY. JOANNE MARIE A. COMA |1

01/13/2022 | By: KSMMT RULE 72

Subject Matter and
OVERVIEW OF THE SUBJECT Applicability of General Rules

If last semester, we discussed about Succession. It is Section 1. Subject matter of special proceedings. —
on the substantive matter of the law. Rules of special proceedings are provided for in
the following cases:
In Special Proceedings, you are dealing with the (a) Settlement of estate of deceased
procedure. The bulk of our discussion will be in Part persons;
IV or the Settlement of Estate of the Deceased (b) Escheat;
Persons. We will apply our knowledge on (c) Guardianship and custody of children;
Succession here. They are connected. (d) Trustees;
(e) Adoption;
INTRODUCTION (f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
Special Proceeding (h) Habeas corpus;
- An application to establish the status or (i) Change of name;
right of a party or a particular fact or any (j) Voluntary dissolution of corporations;
remedy other than an ordinary suit in a (k) Judicial approval of voluntary
court of justice. recognition of minor natural children;
(l) Constitution of family home;
For example, you are going to establish the heirs of (m) Declaration of absence and death;
this particular deceased person and that you have (n) Cancellation of correction of entries in
the right to settle this estate. Or, you are going to the civil registry.
establish that this is the Last Will and Testament of
the deceased and you wanted this to be probated. Now, is this an exclusive list? No, the list is not
exclusive because any petition which has for its
It can also be that you are going to establish a main purpose the establishment of a status, a right,
particular fact. For example, you want to establish or a particular fact may be included as a Special
that this person is suitable for adoption and these Proceeding.
adopters are legible for adopting the person.
Example, petition for the issuance of a new owner’s
You have studied this in your Civil Procedure na naa duplicate of title. You are going to establish a
kay right that you wanted to enforce against the particular fact like how the original owner’s
other party and that the other party is going to give duplicate of title has been lost while in your
you a redress. Diba naa jud kay ginapangayo sa possession. So, you are going to ask the Registry of
other party. For example, collection of sum of Deeds to give you another one.
money. And the other has to give it to you.
So, this is an example of a Special Proceeding that
In Special Proceedings, you are not going to ask the has not been mentioned in Section 1.
other party that this is the one that you are going
to do. Rather, you need to establish that you want Another example: Petition for the Declaration of
that the court to tell you that this particular person Nullity of Marriage. You learned what are the
has this right or the status is going to be conferred grounds for the declaration of the nullity of
in this particular person. marriage in your Persons and Family Relations. But,
how are you going to file that? You are going to file
The subject matter of Special Proceedings is stated that in court, in accordance with the Rules on the
in Section 1. Declaration of Nullity of Marriage. Again, this is a
Special Proceeding because it seeks to establish a
status, or a right, or a particular fact that there was
a void marriage that had happened between the
couple.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
ATTY. JOANNE MARIE A. COMA |2

can be enforced
However, in some instances, the Court will not say against any person.
that this is a Special Proceeding. Rather, they would
just lodge it as a civil case. Civil actions are the ones covered in your Civil
Procedure or the civil cases you are going to file in
Example, a land registration case, if it is a Petition court. It is treated differently from that of the special
for the Issuance of a New Owner’s Duplicate of Title. proceedings.
Technically, it can be considered as a special
proceeding because it talks about the Why? Because special proceedings are not
establishment of a status or right or a particular fact. adversarial. This is summary in nature. Dali lang siya.
Meaning, dili na ka maghulat sa answer sa pikas
Special Proceedings under Various Laws and party after you filed a complaint.
Supreme Court Circulars
In Special Proceedings, what you are just going to
Petitions under the Family Courts Act ask is that not suing another person, nor to give you
1. Rule on Declaration of Absolute Nullity of a redress or to collect something from him. You just
Void Marriages and Annulment of Voidable want that the particular fact, status, or right is going
Marriages to be established.
A.M. 02-11-10-SC, March 15, 2003
2. Rule on Legal Separation If petition ang imohang gi-file, then, it is a special
A.M. 20-11-11-SC, March 15, 2003 proceeding. It is not complaint ha. If it is a
3. Rule on Provisional Orders complaint, then it is a civil case.
A.M. 02-11-12-SC, March 15, 2003
4. Rule on Custody of Minor Children and Writ Action is the act by which one sues another in a
of Habeas Corpus in Relation to Custody of court of justice for the enforcement or protection of
Minor Children a right, or the prevention or redress of a wrong
A.M. 03-04-04-SC, April 22, 2003 while special proceeding is the act by which one
5. Summary judicial proceedings under the seeks to establish the status or right of a party, or a
Family Code particular fact. Hence, action is distinguished from
CIVIL CODE, Arts. 238-253 special proceeding in that the former is a formal
demand of a right by one against another, while the
Civil Action v. Special Proceeding latter is but a petition for a declaration of a status,
right or fact. Where a party litigant seeks to recover
Civil Action Special Proceeding property from another, his remedy is to file an
A party sues another It is a remedy by which action. Where his purpose is to seek the
for the enforcement or a party seeks to appointment of a guardian for an insane, his
protection of a right, or establish a status, a remedy is a special proceeding to establish the fact
the prevention or right or a particular or status of insanity calling for an appointment of
redress of a wrong. fact. guardianship.
Generally commenced
by application, petition BROADWELL HAGANS v. ADOLPH
Commenced by a or special form of WISLIZENUS, Judge of First Instance of Cebu
complaint pleading as may be G.R. No. 16680, September 13, 1920
provided for by the
particular rule or law. Issue:
Whether or not a "special proceeding," like the
It does not pray for present, is an "action"
affirmative relief for
Cause of action should
injury arising from a Ruling:
be alleged + relief
party’s wrongful act or No. Said section 1 provides that an "action"
sought
omission nor state a means an ordinary suit in a court of justice, while
cause of action that

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
ATTY. JOANNE MARIE A. COMA |3

"every other remedy furnished by law is a 'special NATCHER V. CA

proceeding." G.R. No. 133000, October 2,2001
Issue:
In view of the interpretation given to the words Whether or not a Regional Trial Court, acting as
"action" and "special proceeding" by the a court of general jurisdiction in an action for
Legislature itself, we are driven to the conclusion reconveyance annulment of title with damages,
that there is a distinction between an "action" adjudicate matters relating to the settlement of
and a "special proceeding," and that when the the estate of a deceased person particularly on
Legislature used the word "action" it did not questions as to advancement of property made
mean "special proceeding." by the decedent to any of the heirs?

There is a marked distinction between an "action" Ruling:

and a "special proceeding. "An action is a formal No. Section 3, Rule 1 of the 1997 Rules of Civil
demand of one's legal rights in a court of justice Procedure defines civil action and special
in the manner prescribed by the court or by the proceedings, in this wise:
law. It is the method of applying legal remedies "XXX a) A civil action is one by which a party sues
according to definite established rules. another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
The term "special proceeding" may be defined as "A civil action may either be ordinary or special.
an application or proceeding to establish the Both are government by the rules for ordinary
status or right of a party, or a particular fact. civil actions, subject to specific rules prescribed
Usually, in special proceedings, no formal for a special civil action.
pleadings are required, unless the statute "XXX
expressly so provides. The remedy in special "c) A special proceeding is a remedy by which a
proceedings is generally granted upon an party seeks to establish a status, a right or a
application or motion. Illustrations of special particular fact."
proceedings, in contradistinction to actions, may
be given: Proceedings for the appointment of an As could be gleaned from the foregoing, there
administrator, guardians, tutors; contest of wills; lies a marked distinction between an action and
to perpetuate testimony; to change the name of a special proceeding. An action is a formal
persons; application for admission to the bar, etc. demand of one's right in a court of justice in the
manner prescribed by the court or by the law. It
Here, there was a discussion as to the difference is the method of applying legal remedies
between civil action and special proceeding. according to definite established rules. The term
"special proceeding" may be defined as an
The issue here is whether or not the judge of the application or proceeding to establish the status
lower court is authorized under the law to appoint or right of a party, or a particular fact. Usually, in
an assessor for the purpose of fixing the amount special proceedings, no formal pleadings are
that is to be given to the administrator or executor required unless the statute expressly so provides.
for its remuneration in the services and expenses in In special proceedings, the remedy is granted
the care, management, and settlement of the estate generally upon an application or motion.
of the deceased persons.
Citing American Jurisprudence, a noted authority
If it is an action, then the judge is expressly in Remedial Law expounds further:
authorized to appoint an assessor. "It may accordingly be stated generally that
actions include those proceedings which are
(Please read the ruling.) instituted and prosecuted according to the
ordinary rules and provisions relating to
actions at law or suits in equity, and that special
proceedings include those proceedings which
are not ordinary in this sense, but is instituted
and prosecuted according to some special mode

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
ATTY. JOANNE MARIE A. COMA |4

as in the case of proceedings commenced Graciano to Mrs. Natcher was a fraudulent sale
without summons and prosecuted without because this involved the property left behind by
regular pleadings, which are characteristics of their mother. Ingon nila, the legitimes have been
ordinary actions. XXX A special proceeding must impaired. So, they wanted to file for a reconveyance
therefore be in the nature of a distinct and of the lot.
independent proceeding for particular relief,
such as may be instituted independently of a Is reconveyance a civil action or a special
pending action, by petition or motion upon proceeding? It is an ordinary civil action.
notice."
The RTC here nullified the sale. According to the
Applying these principles, an action for RTC, this is against public policy. It is fraudulent.
reconveyance and annulment of title with Spouses cannot enter into a sale with each other.
damages is a civil action, whereas matters Tama na unta to kaso the RTC went beyond the
relating to settlement of the estate of a deceased nullification of the sale made by Graciano to his
person such as advancement of property made second wife.
by the decedent, partake of the nature of a
special proceeding, which concomitantly requires Ingon ni RTC, granting na na-nullify ang sale, we are
the application of specific rules as provided for in still going to award the property to Mrs. Natcher
the Rules of Court. because it is considered as an advance inheritance
to Mrs. Natcher, being the compulsory heir of the
Clearly, matters which involve settlement and deceased.
distribution of the estate of the decedent fall
within the exclusive province of the probate court So, palag ang mga anak sa first wife. They said that
in the exercise of its limited jurisdiction. the RTC, acting as an ordinary court (because this is
a civil case), should not go beyond its jurisdiction in
Corollarily, the Regional Trial Court in the instant acting as a special proceedings court or a probate
case, acting in its general jurisdiction, is devoid of court. It is now acting to settle the estate of the
authority to render an adjudication and resolve deceased which it is not supposed to do.
the issue of advancement of the real property in
favor of herein petitioner Natcher, inasmuch as The children from the first wife appealed to the CA.
Civil Case No. 471075 for reconveyance and CA said that the lower court here, in trying the
annulment of title with damages is not, to our ordinary action for reconveyance or annulment of
mind, the proper vehicle to thresh out said title, went beyond its jurisdiction when it performed
question. Moreover, under the present the acts which are only proper for the settlement of
circumstances, the RTC of Manila, Branch 55 was the estate of the deceased persons.
not properly constituted as a probate court so as
to validly pass upon the question of RTC here is not correct in subjecting the property as
advancement made by the decedent Graciano an advance inheritance of the second wife.
Del Rosario to his wife, herein petitioner Natcher.
(Please read the ruling.)
This talks about the properties owned by a guy and
his first wife. Naa siya’y duha ka asawa diri. Naa In commencing an ordinary civil action, you start by
sila;’y 6 ka anak and then namatay si first wife. So, filing a complaint. The court takes jurisdiction. It
syempre kay pogi man si Graciano, the guy here, so issues summons to the other party for him or her to
nagpakasal siya again. Iyang na-asawa kay si Mrs. file a responsive pleading or an answer. Then, when
Natcher. he files an answer, in accordance with the New Rules
of Court, then, the issues are joined. Then, pre-trial,
During the subsistence of the marriage, ang gibuhat determine the issues therein. Then, trial proper in
ni Graciano is that he sold his properties to Natcher, order to determine kung naa ba jud redress or naa
including those properties na iyang gipanag-iyahan bay grounds for counterclaims.
sa first wife. So, pagkamatay ni Graciano, the
children from the first wife said that the sale of

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
ATTY. JOANNE MARIE A. COMA |5

Whereas in a special proceeding, we are not going sought to be settled in the probate proceedings.
to have summons, or a regular pleading. Pag file In addition, the relief's prayed for in the said
nimo ug petition, the court will take jurisdiction. If it petition leave no room for doubt as regard the
needs to be published, then, there will be an order intention of the petitioners therein (private
for publication. Then, proceed na to the respondents herein) to seek judicial settlement of
presentation of jurisdictional matters. I-present na the estate of their deceased father, Troadio
nimo imong witness. It is a summary case. Non- Manalo.
adversarial.
Petitioners contend that the term "proceeding" is
Now, you may be confused if RTC can be a probate so broad that it must necessarily include special
court. Yes, but it cannot just convert itself as a proceedings.
probate court immediately. Depende siya sa kaso or
petition na i-file. The argument is misplaced. Herein petitioners
may not validly take refuge under the provisions
Vda. De Manalo v. Court of Appeals of Rule 1, Section 2, of the Rules of Court to justify
349 SCRA 135 (2001) 366 SCRA 752 (2001) the invocation of Article 222 of the Civil Code of
the Philippines for the dismissal of the petition
Issue: for settlement of the estate of the deceased
Whether or not the respondent Court of Appeals Troadio Manalo inasmuch as the latter provision
erred in upholding the questioned orders of the is clear enough. To wit:
respondent trial court which denied their motion
for the outright dismissal of the petition for Art. 222. No suit shall be filed or maintained
judicial settlement of estate despite the failure of between members of the same family unless it
the petitioners therein to aver that earnest efforts should appear that earnest efforts toward a
toward a compromise involving members of the compromise have been made, but that the same
same family have been made prior to the filling have failed, subject to the limitations in Article
of the petition but that the same have failed. 2035.

Ruling: The above-quoted provision of the law is

No. It is a fundamental rule that in the applicable only to ordinary civil actions. This is
determination of the nature of an action or clear from the term 'suit' that it refers to an action
proceeding, the averments and the character of by one person or persons against another or
the relief sought in the complaint, or petition, as other in a court of justice in which the plaintiff
in the case at bar, shall be controlling. A careful pursues the remedy which the law affords him for
srutiny of the Petition for Issuance of Letters of the redress of an injury or the enforcement of a
Administration, Settlement and Distribution of right, whether at law or in equity. A civil action is
Estatein SP. PROC. No. 92-63626 belies herein thus an action filed in a court of justice, whereby
petitioners' claim that the same is in the nature a party sues another for the enforcement of a
of an ordinary civil action. The said petition right, or the prevention or redress of a wrong.
contains sufficient jurisdictional facts required in Besides, an excerpt form the Report of the Code
a petition for the settlement of estate of a Commission unmistakably reveals the intention
deceased person such as the fact of death of the of the Code Commission to make that legal
late Troadio Manalo on February 14, 1992, as well provision applicable only to civil actions which
as his residence in the City of Manila at the time are essentially adversarial and involve members
of his said death. The fact of death of the of the same family.
decedent and of his residence within he country
are foundation facts upon which all the It must be emphasized that the oppositors
subsequent proceedings in the administration of (herein petitioners) are not being sued in SP.
the estate rest. The petition in [Link] No. 92- PROC. No. 92-63626 for any cause of action as in
63626 also contains an enumeration of the fact no defendant was imploded therein. The
names of his legal heirs including a tentative list Petition for issuance of letters of Administration,
of the properties left by the deceased which are Settlement and Distribution of Estate in SP.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
ATTY. JOANNE MARIE A. COMA |6

PROC. No. 92-63626 is a special proceeding and, It can be gleaned therein that it was not actually an
as such, it is a remedy whereby the petitioners ordinary civil action. There is no relief that is being
therein seek to establish a status, a right, or a sought by the other party. What they wanted was
particular fact. The petitioners therein (private just to establish the fact that there is the death of
respondents herein) merely seek to establish the the father, there are properties left, these are his
fact of death of their father and subsequently to heirs, and so we are going to settle or divide this
be duly recognized as among the heirs of the said equally among the heirs. That is a special
deceased so that they can validly exercise their proceeding.
right to participate in the settlement and
liquidation of the estate of the decedent Corporate Rehabilitation
consistent with the limited and special • A corporate rehabilitation case is a special
jurisdiction of the probate court. proceeding in rem wherein the petitioner
seeks to establish the status of a party or a
The patriarch here Mr. Manalo had 11 children. He particular fact, i.e., the inability of the
left several properties. Eight of the children filed for corporate debtor to pay its debts when they
the settlement of the estate while the other three fall due. It is summary and non-adversarial
are considered as the oppositors. in nature. Its end goal is to secure the
approval of a rehabilitation plan to facilitate
Kung nag-agree pa ang 11, wala na untay kaso. Pero the successful recovery of the corporate
kay wala man sila nag-komporme, they filed a debtor. It does not seek relief from an injury
Judicial Settlement of Estate. caused by another party. (Golden Cane
Furniture v. Steelpro Phils., GR No. 198222,
Now, why did it reach the Supreme Court? Because April 4, 2016)
according to the RTC, this should be dismissed
because there was an absence of the presentation Arbitration
of the requirement in our civil actions in the Family • Arbitration is deemed a special proceeding
Code. Diba there is a rule that if it is a suit between and governed by the special provisions of
family members, it is a prerequisite that there was RA 9285, its IRR, and the Special ADR Rules.
an earnest effort towards a compromise among the RA 9285 is the general law applicable to all
members of the same family. It is a condition matters and controversies to be resolved
precedent daw that was not complied with by the through alternative dispute resolution
heirs here. methods. While enacted only in 2004, we
held that RA 9285 applies to pending
The issue now is whether or not this case that they arbitration proceedings since it is a
have filed for the settlement of estate should be procedural law, which has retroactive effect.
treated as an ordinary civil action involving the (DFA v. BCA International Corp., GR No.
members of the same family. 210858, June 29, 2016)

If that is an ordinary civil action, then, tama ang Liquidation Proceeding

korte that you have to first show this condition • A petition for liquidation of an insolvent
precedent that there is an earnest effort towards corporation should be classified a special
compromise. proceeding and not an ordinary action.
Such petition does not seek the
If, for instance, we are going to say that this is a enforcement or protection of a right nor
special proceeding, then of course, there is no such the prevention or redress of a wrong
requirement na kailangan magsubmit ka to show against a party. It does not pray for
proof that there is an earnest effort towards a affirmative relief for injury arising from a
compromise. party's wrongful act or omission nor state a
cause of action that can be enforced
(Please read the ruling.) against any person.
• What it seeks is merely a declaration by the
trial court of the corporation's insolvency so

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
ATTY. JOANNE MARIE A. COMA |7

that its creditors may be able to file their

claims in the settlement of the A:
corporation's debts and obligations. Put in A petition for declaration of presumptive death is
another way, the petition only seeks a not included in the enumerations falling as a subject
declaration of the corporation's debts and matter of a special proceeding under Section 1 of
obligations. Put in another way, the petition Rule 72. Such petition under Article 41 of the Family
only seeks a declaration of the Code is a summary proceeding for the purpose of
corporation's state of insolvency and the remarriage of the present spouse.
concomitant right of creditors and the
order of payment of their claims in the However, it is in a nature of a special proceeding
disposition of the corporation's assets. because it is an application that seeks to establish a
status or a particular fact.
Some Questions
Frequently Asked in the Bar
2012 Bar Exam
1. Which of the following is not a special
proceeding?
a. Absentees
b. Escheat
c. Change of first name
d. Constitution of family home

Explanation: I think it’s letter D. Though it was stated

that it is part of a special proceeding, but among all
of these options, ang wala juy rules sa special
proceedings is the constitution of family home
because it is under your Persons and Family
Relations.

Presumptive Death for the Purpose of

Remarriage
Q: Frank and Gina were married on June 12, 1987 in
Manila. Barely a year after the wedding, Frank
exhibited a violent temperament, forcing Gina, for
reasons of personal safety, to live with her parents.
A year thereafter, Gina found employment as a
domestic helper in Singapore, where she worked for
ten consecutive years. All the time she was abroad,
Gina had absolutely no communications with Frank,
nor did she hear any news about him. While in
Singapore, Gina met and fell in love with Willie.

On July 4, 2007, Gina filed a petition with the RTC of

Manila to declare Frank presumptively dead, so that
she could marry Willie. The RTC granted Gina's
petition. The Office of the Solicitor General (OSG)
filed a Notice of Appeal with the RTC, stating that it
was appealing the decision to the Court of Appeals
on questions of fact and law.
Is a petition for Declaration of Presumptive Death a
special proceeding? Why or why not? (2%) [ 2009
BAR ]

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
ATTY. JOANNE MARIE A. COMA |8

cognizant of Sec. 33 based on this law that the

exclusive jurisdiction over probate proceedings,
testate and intestate, is if the value of the estate
does not exceed P2M.

If P2M and below, it is now with the MTCC.

CHAPTER IV
• Rule 75 – Production of Will/Allowance GENERAL PROVISIONS
of Will Necessary (1990, 1992, 1999, Section 39. Appeals. – The period for appeal from
2005, 2006, 2007, 2010, 2011) final orders, resolutions, awards, judgments, or
• Rule 102 – Habeas Corpus (1998, 2003, decisions of any court in all cases shall be fifteen
2005, 2007, 2008, 2011, 2015) (15) days counted from the notice of the final
• Rule 108 – Cancellation or Correction of order, resolution, award, judgment, or decision
Entries in the Civil Registry (1993, 2005, appealed from: Provided however, That in habeas
2007, 2014, 2015, 2018, 2019) corpus cases, the period for appeal shall be forty-
eight (48) hours from the notice of the judgment
appealed from.
01/10/2022 | By: JGP
No record on appeal shall be required to take an
appeal. In lieu thereof, the entire record shall be
JURISDICTION
transmitted with all the pages prominently
BP 129 – The Judiciary Reorganization Act of 1980
numbered consecutively, together with an index
of the contents thereof.
Section 19. Jurisdiction in civil cases. – Regional
Trial Courts shall exercise exclusive original
This section shall not apply in appeals in
jurisdiction:
special proceedings and in other cases wherein
multiple appeals are allowed under applicable
(6) In all cases not within the exclusive jurisdiction
provisions of the Rules of Court.
of any court, tribunal, person or body exercising
jurisdiction, or any court, tribunal, person or body
This will not apply because later on, sa last part sa
exercising judicial or quasi-judicial functions;
atong semester, we will discuss the period of appeal
(7) In all civil actions and special proceedings
when it comes to special proceedings.
falling within the exclusive jurisdiction

In appeals in special proceedings in accordance

In special proceedings, we are still under the
with Rule 109, the period of appeals shall be
Judiciary Reorganization Act of 1980.
thirty (30) days, a record on appeal being
required.
If it does not fall within any other court, it will be the
RTC which will have the jurisdiction.
I hope that you are familiar with the difference of a
notice of appeal and a record of appeal.
Take note of par. 7. We have to be familiar that right
now, there is a new set of rules when it comes to
Kung notice of appeal, you just have to notify the
jurisdiction.
court that you are going to appeal this particular
This is the new rule on jurisdiction, especially in
case. The record of the appeal, entire records of the
probate proceedings – RA 115761, or the
case will be forwarded by one court, for example
amendement of the BP129.
RTC, iforward sa CA ang entire records.
The RTCs should have exclusive jurisdiction in all
Please take note of the jurisdiction with respect to
matters of probate, both testate and intestate,
your testate and intestate proceedings.
where the gross value of the estate exceeds P2M.
However, if P2M and below, you have to be

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
ATTY. JOANNE MARIE A. COMA |9

Mangaliman v. Gonzales presentation of evidence and the

36 SCRA 462 (1970) determination of legal questions that should
Issue: be ventilated in a court of general jurisdiction.
Whether or not the Court of First Instance of
Manila, as a probate court, has jurisdiction to We will tackle the jurisdiction of probate courts. If it
entertain petitioner's petition for reconveyance is a probate court, it is different from that of court
of general jurisdiction.
Ruling:
No. The Court of First Instance, as a probate When you say probate court, it means that the
court, has no jurisdiction to take cognizance of jurisdiction is only limited and special and iyang
the petition for reconveyance. The remedy jurisdiction because it will only have to focus on this
sought by petitioner for the reconveyance to her particular probate proceeding.
of her share in the Hacienda Evangelista upon the
ground that the same was acquired by In this case, Mangaliman is an illegitimate child. Naa
respondent through fraud or misrepresentation siyay legacy of an undivided portion of the hacienda
cannot be obtained by a mere petition in the Evangelista. Naa siyay share. Katong gibahin ang
probate proceedings. hacienda, she was still a minor so her share was
placed under the guardianship of her half brother
The court of first instance, acting as a probate Alejandro Gonzales, Jr.
court, has limited jurisdiction and can take
cognizance only of "matters of probate, both During the probate proceeding, naay walo ka anak.
testate and intestate estates, xxx and all such Ang isa kay Mangaliman.
special cases and proceedings are not
otherwise provided for." The jurisdiction of a Si Manuel Gonzales, another brother, legitimate son
probate court is limited and special, and this of the testator and the administrator of the estate.
should be understood to comprehend only cases There was an agreement na bayaran siya as an
related to those powers specified in the law, and administrator. He was given P11K worth as payment
cannot extend to the adjudication of collateral for managing the estate. There was also an
matters. agreement na bayaran siya sa tanang heirs, take
note minor pa si Mangaliman.
The petition for reconveyance has given rise to a
controversy involving rights over a real property Later on, wala daw nabayaran si Manuel. Since wala
which would require the presentation of evidence siya nabayaran, nagpaexecute siya, nagclaim siya sa
and the determination of legal questions that estate and eventually, it was awarded by the
should be ventilated in a court of general probate court and there was an execution. So naay
jurisdiction. sheriff, gikuha ang property or value sa estate worth
P11K. Now, it is Manuel who is the owner of the said
The petition filed by petitioner before the property.
probate court which seemingly seeks merely the
reconveyance to her of her undivided share in a When Mangaliman reaches the majority age, she
parcel of land which originally formed part of the tried to recover this property kay ingon niya, na
estate of her father in fact calls for the divest iyang share. Take note, 1/8 iyang share. Ingon
nullification, of the order of execution issued siya na ipacancel daw ang sale kay Manuel, irecover
by the probate court which is already final, niya ang iyang 1/8 share kay she discovered that
and of the subsequent sale of a property to Manuel at that time, acted with fraud and
respondent, upon the alleged ground of misrepresentation because wala na daw siya dapat
fraud. The defense interposed by respondent is nagclaim sa estate because Manuel actually had
that petitioner's action to recover the property is been paid the P11K.
already barred by prescription, laches, and res
judicata. The petition for reconveyance has Because of these allegations, gusto niya irecover
given rise to a controversy involving rights and property. The probate court ruled that Manuel
over a real property which would require the may not be divested with the title because the claim

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 10

of Mangaliman to recover the property should be accordance with the order of the probate court
filed in an independent civil action. Ang pasabot ni of 30 October 1975. They cannot now be
probate court kay didto sa court of general allowed belatedly to adopt an inconsistent
jurisdiction. posture by attacking the jurisdiction of the
respondent trial Judge to whom they
That is the question – can the probate court not take submitted their cause voluntarily.
action on that? Dili ba niya pwede ientertain ang
action ni Mangaliman? We find, however, that the respondent Judge
committed a grave abuse of discretion,
The SC actually agreed with the probate court na amounting to lack of jurisdiction, in dismissing
the action should be filed in a separate case. the complaint filed by the petitioners, for their
alleged failure to amend their complaint to
The court of first instance, acting as a probate exclude therefrom Lot E which the respondent
court, has limited jurisdiction and can take Judge found, in his order of 30 October 1975,
cognizance only of “matters of probate, both issued in the probate court, to be owned by the
testate and intestate estate, … and all such special petitioners Cipriano Evangelists and Consuelo
cases and proceedings as are not otherwise Baybayan. The findings of the respondent Judge
provided for.” as to the ownership of Lot E after the hearing
conducted in Spec. Proc. No. 24-R do not justify
The jurisdiction of a probate court is limited and the order to amend the complaint since the
special, and this should be understood to determination of the ownership of the said lot by
comprehend only cases related to those powers the respondent Judge presiding over a court
specified in the law, and cannot extend to the exercising probate jurisdiction is not final or
adjudication of collateral matters. ultimate in nature and is without prejudice to the
right of an interested party to raise the question
It cannot act on reconveyance because you have to of ownership in a proper action.
present evidence whether there is fraud or
misrepresentation. This is not within the power of It is a well-settled rule in this jurisdiction,
the probate court. sanctioned and reiterated in a long fine of
decisions, that "when questions arise as to
Baybayan v. Aquino ownership of property alleged to be a part of
149 SCRA 185 (1987) the estate of a deceased person, but claimed by
Issue: some other person to be his property, not by
Whether or not the respondent Judge had no virtue of any right of inheritance from the
authority under the law, both substantive and deceased, but by title adverse to that of the
procedural, to issue the questioned orders deceased and his estate, such questions cannot
because the order to amend the complaint was be determined in the courts of administrative
issued in, and in connection with Spec. Proc. No. proceedings. The Court of First Instance, acting,
24-R where the herein petitioners are not even as a probate court, has no jurisdiction to
parties adjudicate such contentions, which must be
submitted to the Court of First Instance in the
Ruling: exercise of its general jurisdiction as a court of
No. While it may be true that the order to amend first instance."
the complaint filed in Civil Case No. 231-R was
issued in Spec. Proc. No. 24-R, so that it cannot This is with respect to the jurisdiction of the probate
ordinarily bind the herein petitioners who are not court. This is a petition for the settlement of the
parties in said special proceedings, it appears, estate filed by the nephews and nieces of the
however, that the petitioners voluntarily deceased who died intestate.
submitted themselves to the jurisdiction of
the probate court, when they filed an Omnibus The probate court issued an order adjudicating the
Motion in Civil Case No. 231-R, wherein they estate to the heirs of the decedent or ordered to
prayed for leave to amend their complaint in submit a partition. So there was already a partitition

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 11

that has been approved by the probate court. The The probate court has a limited jurisdiction only. It
court also conferred the adjudication and ordered cannot act on issues of ownership. For example, nag
the adminitratix to deliver the respective shares of ingon ang judge na ang lot E kay sa heirs jud siya
the co-heirs. and not owned by Jose and Cipriano. So these are
only temporary judgment. It does not preclude the
A writ of execution was given and the writ of parties to file a separate case for the determination
possession was granted. Pwede na nila occupy ilang of ownership.
properties.
Because again, the purpose lang saiyang
When they went there, naay two persons na niingon pagdetermine of ownership is for the purpose of
na they are the registered owners of that particular whether or not iapil nato siya sa inventory or part sa
lot. So wala nakasulod ang isa sa mga heirs kay naay estate. With respect to the ownership, the proper
claimants. So the heirs filed a contempt of court court who has jurisdiction on that is the court of
with the probate court against Jose and Cipriano general jurisdiction.
Evangelista.
Remember, in that instance, there is a difference set
These two persons who prevented the heirs also of evidence that you have to present. Sa probate
filed a separate civil complaint against the heirs as court, evidence lang as to the satisfaction of
well as the estate. They are saying that they are the whether or not iprobate jud ba ang will, or
real owners of the property so ngano naapil sa compliant ba sa formalities of the will.
settlement of the estate. They filed a case of
quieting of title because there is a cloud to the title The exception to this is that for instance, the parties
as to who is the real owner. have agreed among themselves na iwaive nalang
ang jurisdiction and the probate court will
Nagpasurvey si probate court sa lot to determine determine the ownership.
kung kaning lot na part sa estate is identical to the
land which the two persons are claiming. So it was In the case of Fernandez v. Maravilla, this is with
found out na same jud ang property. respect to the jurisdiction of the CA on appeals
made by the probate proceedings. But take note
Ana ang probate na idismiss the contempt walay that this is under the old rules. Not something to
contempt kay naay right si Jose and Cipriano. Naay study in depth.
title. Pero niingon si probate court si Jose and
Cipriano to amend their pleading in the civil case, to Fernandez v. Maravilla
exclude the lot in question. 10 SCRA 589 (1964)
Issue:
Initially, nituman ang heirs, nagfile sila ug Omnibus Whether or not the CA has jurisdiction over the
Motion to amend their complaint. Kung naa nay special proceedings
order ang court na okay pwede na iamend so dira
pa sila mag amend. Because with leave, meaning to Ruling:
say, mananghid sila sa court. None. The CA has no jurisdiction over the testate
proceedings, considering that the properties
Because they have already submitted, then they can therein involved are valued at P362, 424, 90, as
be bound by the order of this special proceedings per inventory of the special administrator. Under
court. Section 2, Rule 75, of the Rules of Court, the
property to be administered and liquidated in
However, tama ba ang gibuhat ni probate court? testate or intestate proceedings of the deceased
Take note that the SC stated here that the spouse is, not only that part of the conjugal
respondent/probate court judge committed grave estate pertaining to the deceased spouse, but the
abuse of discretion amounting to lack or excess of entire conjugal estate.
jurisdiction in dismissing the complaint filed by the
petitioner for their failure to amend their complaint. This Court has already held that even if the
deceased had left no debts, upon the dissolution

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 12

of the marriage by the death of the husband or has been signed by the testatrix so it resulted to
wife, the community property shall be testacy.
inventoried, administered, and liquidated in the
testate or intestate proceedings of the deceased Ang mga igsoon nag step in and they said that they
spouse. have a share. The husband was first appointed as
the special administrator. But gusto sa siblings na
Not having appellate jurisdiction over the mag appoint nag ikan sa ila so they wanted a co
proceedings in probate (CA-G.R. No. 27478-R), special administrator.
considering that the amount involved therein is
more than P200,000.00, the Court of Appeals Respondent also contends that appeals in special
cannot also have original jurisdiction to grant the proceedings, as distinguished from ordinary civil
writs of certiorari and prohibition prayed for by cases, are within the exclusive appellate
respondent in the instant case, which are merely jurisdiction of the Court of Appeals, since they are
incidental thereto. not enumerated in Section 17 of the Judiciary Act,
as amended. Granting, arguendo, that a special
The bulk of the discussion is the on the value of the proceeding is not a civil action, it has never been
estate. decided that a special proceeding is not a "civil
case" (Carpenter v. Jones 121 Cal. 362; 58 P. 842).
In the United States, the rule is that "proceedings On the other hand, it has been held that the term
in probate are appealable where the amount or "civil case" includes special proceedings
value involved is reducible to a pecuniary (Herkimer v. Keeler, 100 Iowa 680, 81 N.W. 178).
standard, the amount involved being either the Moreover, Section 2, Rule 73 of the Rules of Court
appellant’s interest or the value of the entire provides that the rules on ordinary civil actions
estate according as the issues on appeal involve are applicable in special proceedings where they
only the appellant’s rights or the entire are not inconsistent with, or when they may serve
administration of the estate. . . . In a contest for to supplement the provisions relating to special
administration of an estate the amount or value proceedings. Consequently, the procedure of
of the assets of the estate is the amount in appeal is the same in civil actions as in special
controversy for purposes of appeal." (4 C.J.S. proceedings.
204). In line with this ruling, it is to be observed
that respondent’s interest as appellant in the While it is true that questions of fact have been
probate proceedings (CA-G.R. No. 27478-R) is, raised in the probate proceedings (Spec. Proc.
according to his theory, the whole estate No. 4977, CFI of Negros Occidental) which was
amounting to P362,424.90, or, at least more than appealed by respondent to the Court of Appeals,
3/4 thereof, or approximately P270,000.00. Such it becomes immaterial, in view of Sections 17 and
interest, reduced to a pecuniary standard on the 31 of the Judiciary Act of 1948, as amended,
basis of the inventory, is the amount or value of providing that the Supreme Court shall have
the matter in controversy, and such amount exclusive appellate jurisdiction over "all cases in
being more than P200,000.00, it follows that the which the value in controversy exceeds two
appeal taken in said proceedings falls within the hundred thousand pesos, exclusive of interests
exclusive jurisdiction of the Supreme Court and and costs", and that "all cases which may be
should, therefore, be certified to it pursuant to erroneously brought to the Supreme Court or to
Section 17 of the Judiciary Act of 1948, as the Court of Appeals shall be sent to the proper
amended. court, which shall hear the same as if it had
originally been brought before it."
I am just highlighting this because in this case, the
SC explained the difference between a special Later on, we will know what are the instances in
proceeding from that of a civil case. which the ordinary rules or the civil procedure can
be applied in special proceedings. But it does not
This involves a property of a decedent. Naa siyay mean that special proceedings is the same of that
bana and igsoon. The will of this decedent has been civil action.
invalidated because not all of pages of the said will

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 13

In Manalo v. Paredes, it was discussed here what is (l) Constitution of family home;
the nature of a probate of a will – iallow ba or (m) Declaration of absence and death;
idisallow ang last will and testament. (n) Cancellation of correction of entries in the civil
registry.
The proceeding for the probate of a will is a
proceeding in rem (40 Cyc., p. 1265), and the court Q: Is a proceeding before the Shari’a District Court
acquires jurisdiction over all the persons interested against a deceased person an ordinary civil action
through the publication of the notice prescribed by or a special proceeding?
section 630 of the Code of Civil Procedure, and any
order that may be entered is binding against all of A: It is deemed as a special proceeding.
them. Through the publication ordered by the Court
of First Instance of Laguna of the application for the You have to be familiar that there is also the shari’a
probate of the supposed will of Francisco Villegas, court. They also have their own rules.
filed by Justina Mendieta and her minor children
Lazaro and Daria Mendieta and Melecio Fule, What happened here is that there is a man,
testamentary executor, through their attorney, Mr. Alejandro. Pagkamatay niya, nabilin iyang wife na si
Eusebio Lopez, said court acquired jurisdiction over Luisa, and the children, Alejandro Jr, Lilibeth and
all such persons as were interested in the supposed Rodora. They were married in a catholic rights kay
will, including Gelacio Malihan. catholic ang wife.

It is emphasized here that this is a proceeding in Here comes another woman, Liling, na nagpailaila
rem and thus, publication requirement is among the as the first wife of Alejandro because Alejandro is in
jurisdictional requirement that we have to satisfy. fact a Muslim. They also have a child. So nagfile
siyag kaso sa shari’a court for the settlement of the
Proceeding in Rem estate of Alejandro.

Through the publication of the petition for the Na shock si Luisa and said that the shari’a court has
probate of the will, the court acquires jurisdiction no jurisdiction over the estate of Alejandro because
over all such persons as are interested in said will; he is a Roman Catholic and not a Muslim. Gi dismiss
and any judgment that may be rendered after sa shari’a. Liling appealed.
said proceeding is binding against the whole
world. ARTICLE 143. Original jurisdiction. — (1) The
Shari'a District Court shall have exclusive original
RULE 72 jurisdiction over:
SUBJECT MATTER AND APPLICABILITY OF xxxx
GENERAL RULES (b) All cases involving disposition, distribution
(BQ: 1996, 1998, 2008, 2009, 2012, 2015) and settlement of the estate of deceased
Muslims, probate of wills, issuance of letters of
Subject Matters of Special Proceedings administration or appointment of administrators
Sec. 1, Rule 72 or executors regardless of the nature or the
(a) Settlement of estate of deceased persons; aggregate value of the property.
(b) Escheat;
(c) Guardianship and custody of children; Montañer v. Sharia District Court
(d) Trustees; G.R. No. 174975, January 20, 2009
(e) Adoption; Issue:
(f) Rescission and revocation of adoption; Whether or not the proceeding before the Shari’a
(g) Hospitalization of insane persons; District Court is an ordinary civil action
(h) Habeas corpus;
(i) Change of name; Ruling:
(j) Voluntary dissolution of corporations; No.
(k) Judicial approval of voluntary recognition of
minor natural children;

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 14

Section 3(c) of the Rules of Court (Rules) defines it is a petition for the issuance of letters of
a special proceeding as “a remedy by which a administration, settlement, and distribution of
party seeks to establish a status, a right, or a the estate of the decedent. It contains sufficient
particular fact.” This Court has applied the Rules, jurisdictional facts required for the settlement of
particularly the rules on special proceedings, for the estate of a deceased Muslim, such as the fact
the settlement of the estate of a deceased of Alejandro Montañer, Sr.’s death as well as the
Muslim. In a petition for the issuance of letters of allegation that he is a Muslim. The said petition
administration, settlement, and distribution of also contains an enumeration of the names of his
estate, the applicants seek to establish the fact of legal heirs, so far as known to the private
death of the decedent and later to be duly respondents, and a probable list of the properties
recognized as among the decedent’s heirs, which left by the decedent, which are the very
would allow them to exercise their right to properties sought to be settled before a probate
participate in the settlement and liquidation of court. Furthermore, the reliefs prayed for reveal
the estate of the decedent. Here, the respondents that it is the intention of the private respondents
seek to establish the fact of Alejandro Montañer, to seek judicial settlement of the estate of the
Sr.’s death and, subsequently, for private decedent. These include the following: (1) the
respondent Almahleen Liling S. Montañer to be prayer for the partition of the estate of the
recognized as among his heirs, if such is the case decedent; and (2) the prayer for the appointment
in fact. of an administrator of the said estate.

Petitioners’ argument, that the prohibition It is very much clear based on the pleadings
against a decedent or his estate from being a submitted of the first wife that what is at issue here
party defendant in a civil action applies to a is the settlement of the estate.
special proceeding such as the settlement of the
estate of the deceased, is misplaced. Unlike a civil The underlying assumption in petitioners’ second
action which has definite adverse parties, a argument, that the proceeding before the Shari’a
special proceeding has no definite adverse party. District Court is an ordinary civil action against a
The definitions of a civil action and a special deceased person, rests on an erroneous
proceeding, respectively, in the Rules illustrate understanding of the proceeding before the
this difference. court a quo. Part of the confusion may be
attributed to the proceeding before the Shari’a
A civil action, in which “a party sues another for District Court, where the parties were designated
the enforcement or protection of a right, or the either as plaintiffs or defendants and the case was
prevention or redress of a wrong” necessarily has denominated as a special civil action. We
definite adverse parties, who are either the reiterate that the proceedings before the court a
plaintiff or defendant. On the other hand, a quo are for the issuance of letters of
special proceeding, “by which a party seeks to administration, settlement, and distribution of
establish a status, right, or a particular fact,” has the estate of the deceased, which is a special
one definite party, who petitions or applies for a proceeding.
declaration of a status, right, or particular fact,
but no definite adverse party. In the case at bar, The SC did not agree with the second wife that this
it bears emphasis that the estate of the decedent is an ordinary civil action.
is not being sued for any cause of action. As a
special proceeding, the purpose of the There is a mistake in the nomenclature in the
settlement of the estate of the decedent is to pleading. Instead of a special proceeding case that
determine all the assets of the estate, pay its is being provided for in the pleading that was
liabilities, and to distribute the residual to those submitted, it was of special civil action. Naay
entitled to the same. plaintiffs versus the defendants.

Although private respondents designated the Diba we have discussed na kung special proceeding,
pleading filed before the Shari’a District Court as usually, it is filed through a petition. Ang party is the
a "Complaint" for judicial partition of properties,

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 15

petitioner only or kung naay oppositors, they can

be considered as respondents. In the more recent case of Milagros Joaquino v.
Lourdes Reyes, the Court reiterated its ruling that
But usually, there is no such thing as a complainant matters relating to the rights of filiation and
because it is not a complaint but rather a petition heirship must be ventilated in the proper probate
and you have to establish a right, fact or status of a court in a special proceeding instituted precisely
person. In this case, there is a mistake only in the for the purpose of determining such rights. Citing
nomenclature. the case of Agapay v. Palang, this Court held that
the status of an illegitimate child who claimed to
If you are going to read the entirety of the pleading be an heir to a decedent's estate could not be
filed in the shari’a court, it is actually a special adjudicated in an ordinary civil action which, as in
proceeding. this case, was for the recovery of property.

Take note: determination of who are the legal By way of exception, the need to institute a
heirs of the deceased should be made in the separate special proceeding for the
special proceedings determination of heirship may be dispensed with
for the sake of practicality, as when the parties in
Jurisprudence dictates that the determination of the civil case had voluntarily submitted the issue
who are the legal heirs of the deceased must be to the trial court and already presented their
made in the proper special proceedings in court, evidence regarding the issue of heirship, and the
and not in an ordinary suit for recovery of RTC had consequently rendered judgment
ownership and possession of property. This must thereon, or when a special proceeding had been
take precedence over the action for recovery of instituted but had been finally closed and
possession and ownership. The Court has terminated, and hence, cannot be re-opened.
consistently ruled that the trial court cannot
make a declaration of heirship in the civil action In the determination of whether or not one is an
for the reason that such a declaration can only be heir, kung ikaw illegitimate child and you want to be
made in a special proceeding. Under Section 3, considered as an heir for purposes that you will get
Rule 1 of the 1997 Revised Rules of Court, a civil a part of the estate, it should be instituted in the
action is defined as one by which a party sues same special proceeding.
another for the enforcement or protection of a
right, or the prevention or redress of a wrong But for instance, naka file na mo ug civil case, then
while a special proceeding is a remedy by which it can be done in that civil case provided that the
a party seeks to establish a status, a right, or a parties voluntarily submitted to the trial court.
particular fact. It is then decisively clear that the
declaration of heirship can be made only in a Are the rules in civil actions applicable to spec
special proceeding inasmuch as the petitioners pro?
here are seeking the establishment of a status or Section 2. Applicability of rules of civil actions. —
right. (Heirs of Gabatan v. CA, GR No. 150206) In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as
In the case of Heirs of Gabatan v. CA, among the practicable, applicable in special proceedings.
issues that can be determined in a special
proceedings case is the issue of whether or not this Earlier, I have mentioned that while there is a
particular heir is really entitled to become the heir difference between a special proceeding from that
of the deceased. of an ordinary civil action, the rules on civil action,
the ones you have learned in your civil procedure,
Exception to the rule: can also be applied suppletorily to your special
In the early case of Litam, et al. v. Rivera, this proceedings.
Court ruled that the declaration of heirship must
be made in a special proceeding, and not in an For instance, there are rules na wala gi prohibit,
independent civil action. (Heirs of Ypon v. magpademurrer ka, there is no such rule na
Ricaforte, GR No. 198680, July 8, 2013) provided sa special proceedings. So pwede na siya

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 16

maapply sa special proceedings in accordance with latter as a witness. The administrator objected,
the above provision. insisting that the modes of discovery apply only
to ordinary civil actions, not special proceedings.
BAR Q 2015: Rule on the matter. (4%)
Ernie filed a petition for guardianship over the
person and properties of his father, Ernesto. Suggested answer:
Upon receipt of the notice of hearing, Ernesto
filed an opposition to the petition. Ernie, before I will deny the objection raised by the
the hearing of the petition, filed a motion to administrator. Under Section 2 of Rule 72, in the
order Ernesto to submit himself for mental and absence of special provisions, the rules provided
physical examination which the court granted. for in ordinary actions shall be, as far as
After Ernie's lawyer completed the presentation practicable, applicable in special proceedings.
of evidence in support of the petition and the Hence, the provisions on modes of discovery
court's ruling on the formal offer of evidence, under the Rules of Court shall apply to special
Ernesto's lawyer filed a demurrer to evidence. proceedings.

Ernie's lawyer objected on the ground that a SHEKER V. ESTATE OF ALICE O. SHEKER
demurrer to evidence is not proper in a special G.R. No. 157912, December 13, 2007
proceeding. Issue:
Whether or not the RTC erred in strictly
a.) Was Ernie's counsel's objection proper? (2%) applying to a probate proceeding the rules
requiring a certification of non-forum shopping,
No, Ernie’s counsel’s objection was not correct. a written explanation for non-personal filing, and
the payment of docket fees upon filing of the
Section 2, Rule 72 of the Rules of Court expressly claim
provides that in the absence of special provisions,
the rules provided for in ordinary civil actions, Ruling:
shall be, as far as practicable, applicable in special Yes. Section 2, Rule 72, Part II of the same Rules
proceedings. Further, in a case decided by the of Court provides: Sec. 2. Applicability of Rules of
Supreme Court, it explained that rules in ordinary Civil Actions. — In the absence of special
actions may be applied in special proceedings as provisions, the rules provided for in ordinary
much as possible where doing so would not pose actions shall be, as far as practicable, applicable
an obstacle to said proceedings. in special proceedings. Stated differently, special
provisions under Part II of the Rules of Court
In the instant case, there is an absence of special govern special proceedings; but in the absence
provisions and the demurrer to evidence would of special provisions, the rules provided for in
not in any way obstruct the rules on Part I of the Rules governing ordinary civil actions
guardianship. Hence, there is no legal basis for shall be applicable to special proceedings, as far
the objection raised on the demurrer to evidence. as practicable.

Here, Rule 72, Section 2 was applied that The word “practicable” is defined as: possible to
suppletorily, ang rules in an ordinary civil action practice or perform; capable of being put into
such as the demurrer can be applied in special practice, done or accomplished. This means that
proceedings because it is not prohibited. in the absence of special provisions, rules in
ordinary actions may be applied in special
BAR Q (2008): proceedings as much as possible and where
An heir/oppositor in a probate proceeding filed a doing so would not pose an obstacle to said
motion to remove the administrator on the proceedings. Nowhere in the Rules of Court does
grounds of neglect of duties as administrator and it categorically say that rules in ordinary actions
absence from the country. On his part the are inapplicable or merely suppletory to special
heir/oppositor served written interrogatories to proceedings. Provisions of the Rules of Court
the administrator preparatory to presenting the requiring a certification of non-forum shopping

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 17

for complaints and initiatory pleadings, a written claims; otherwise, they would be barred, subject
explanation for non-personal service and filing, to certain exceptions.
and the payment of filing fees for money claims
against an estate would not in any way obstruct Such being the case, a money claim against an
probate proceedings, thus, they are applicable to estate is more akin to a motion for creditors'
special proceedings such as the settlement of the claims to be recognized and taken into
estate of a deceased person as in the present consideration in the proper disposition of the
case. properties of the estate.

Provisions of the Rules of Court requiring a Because in fact, the rules of court have also
certification of non-forum shopping for provided therein that in the settlement of the estate,
complaints and initiatory pleadings, a written the claimants have to be notified so they can file it
explanation for non-personal service and filing, in the same probate court.
and the payment of filing fees for money claims
against an estate would not in any way obstruct There are contingent money claims here (Hilado
probate proceedings, thus, they are applicable case). The decedent during his lifetime, naa syay 2
to special proceedings such as the settlement civil cases. Namatay siya so iyang heirs nag file sila
of the estate of a deceased person as in the for the issuance of the letters of administration in
present case. their favor.

The question here was that the executrix of the During the pendency, wala pa gihapon nahuman
estate nagmove for the dismissal of the money tung 2 civil cases. Wala pa na determine kung naa
claims agains the estate kay dili daw pwede jud bay utang si decedent.
ientertain kay wala daw nakabayad ang claimant ug
required docket fees as prescribed under the Rules So kaning mga claimants sa civil cases against the
of Court. Secondly, wala siya nag attach ug decedent, nag intervene sila sa special proceeding
certificate of non forum shopping as required in an filed by the heirs.
ordinary civil action. There is also a failure to attach
a written explanation why the money claim was not HILADO V. COURT OF APPEALS
claimed or filed personally. G.R. No. 164108, May 8, 2009
Issue:
The trial court agreed with the executrix for the Whether or not the petitioners have the right to
noncompliance. intervene in the intestate proceedings of the
estate of Roberto Benedicto
Iapply nato kung unsay nakabutang sa civil
procedure with respect to these rules because it Ruling:
does not obstruct and as far as practicable, these None. The settlement of estates of deceased
can be applied in special proceedings. persons falls within the rules of special
proceedings under the Rules of Court, not the
The certification of non-forum shopping is Rules on Civil Procedure. Section 2, Rule 72
required only for complaints and other initiatory further provides that "[i]n the absence of special
pleadings. The RTC erred in ruling that a provisions, the rules provided for in ordinary
contingent money claim against the estate of a actions shall be, as far as practicable, applicable
decedent is an initiatory pleading. In the present to special proceedings."
case, the whole probate proceeding was initiated
upon the filing of the petition for allowance of We can readily conclude that notwithstanding
the decedent's will. Under Sections 1 and 5, Rule Section 2 of Rule 72, intervention as set forth
86 of the Rules of Court, after granting letters of under Rule 19 does not extend to creditors of a
testamentary or of administration, all persons decedent whose credit is based on a contingent
having money claims against the decedent are claim. The definition of "intervention" under Rule
mandated to file or notify the court and the 19 simply does not accommodate contingent
estate administrator of their respective money claims.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 18

cumbersome on the intestate court, the

In several instances, the Rules on Special administrator and the heirs of the decedent,
Proceedings entitle "any interested persons" or while providing a viable means by which the
"any persons interested in the estate" to interests of the creditors in the estate are
participate in varying capacities in the testate or preserved.
intestate proceedings. Petitioners cite these
provisions before us, namely: Kay contigent ilang claims, wala pa jud na
(1) Section 1, Rule 79, which recognizes the right determine.
of "any person interested" to oppose the
issuance of letters testamentary and to file a These (ruling 3rd paragraph) are the instances in
petition for administration;" which katong mga interested persons, such as
(2) Section 3, Rule 79, which mandates the giving katong naay contigent claims, can participate sa
of notice of hearing on the petition for letters of special proceedings.
administration to the known heirs, creditors, and
"to any other persons believed to have interest in Pwede hatagan ug notices ang interested persons
the estate;" kay naa silay claim. But it does not mean that in the
(3) Section 1, Rule 76, which allows a "person entirety of the proceedings, kailangan sila inotify.
interested in the estate" to petition for the
allowance of a will; The SC is trying to say that we can understand that
(4) Section 6 of Rule 87, which allows an those having contingent claims would really want to
individual interested in the estate of the know. Pero dili always need kailangan sila inotify sa
deceased "to complain to the court of the court. Pwede sila makakuha or mangayo silage
concealment, embezzlement, or conveyance of records sa korte.
any asset of the decedent, or of evidence of the
decedent’s title or interest therein;" Doctrine: Notwithstanding Section 2 of Rule 72,
(5) Section 10 of Rule 85, which requires notice of Intervention as set forth under Rule 19 does not
the time and place of the examination and extend to creditors or decedent whose credit is
allowance of the Administrator’s account "to based on contingent claim.
persons interested;"
(6) Section 7(b) of Rule 89, which requires the It is one of the instances in which the rules of an
court to give notice "to the persons interested" ordinary civil action are not applicable on special
before it may hear and grant a petition seeking proceedings based on Section 2, Rule 72. Because
the disposition or encumbrance of the properties again, naa may gispecify kung unsa ang instances
of the estate; and that interested persons can be given notices of.
(7) Section 1, Rule 90, which allows "any person
interested in the estate" to petition for an order
for the distribution of the residue of the estate of RULE 73
the decedent, after all obligations are either SUBJECT OF ESTATE OF DECEASED PERSONS
satisfied or provided for. BAR: 2003, 2005

Allowing creditors, contingent or otherwise, Intestate Testate

access to the records of the intestate Where the deceased Where there is a will
proceedings is an eminently preferable person left no will
precedent than mandating the service of court The probate of a will is
processes and pleadings upon them. In either mandatory and takes
case, the interest of the creditor in seeing to it precedence over
that the assets are being preserved and disposed intestate proceedings
of in accordance with the rules will be duly
satisfied. Acknowledging their right to access the We all know that testacy is favored than intestacy.
records, rather than entitling them to the service We also learned in Succession that all the wills
of every court order or pleading no matter how should be probated in order to be given effect.
relevant to their individual claim, will be less

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 19

What is the nature of the settlement of estate For example, resident ka sa Davao City and namatay
proceedings? sad ka diri so diri ifile ang settlement or iprobate
It is a proceeding in rem, which is binding against imong will.
the whole world. All persons having interest in the
subject matter involved, whether they were notified Meaning of residence
or not, are equally bound. • Simply requires bodily presence as an
inhabitant in a given place, while domicile
When must the claims against the deceased requires bodily presence in that particular
persons be filed? place and also an intention to make one’s
It should be filed during the settlement proceedings domicile. No particular length of time of
of their estate. Such proceedings are primarily
residence is required through
governed by special rules under Rules 73-90 of the
• Venue for ordinary civil actions and that for
Rules. Rules governing ordinary actions may, as far
special proceedings have one and the same
as practicable, apply suppletorily.
meaning.
Which court has jurisdiction over probate • Residence in venue provisions – nothing
proceeding? more than a person’s actual residence or
Depends upon the gross value of the estate of the place of abode, provided he resides therein
decedent. with continuity and consistency.
• RTC – exceeds 2M
• MTCC – 2M below BAR (2005):
State the rule on venue in judicial settlement of
What determines venue in the settlement of estate of deceased persons. (2%)
estate proceeding?
• Residence of the decedent at the time A:
of his death Rule 73 of the Rules of Court expressly declares that
• In any province in which he had estate if the decedent is an inhabitant of the Philippines at
– where the decedent was a non- the time of his death, whether a citizen or an alien,
resident of the Philippines at the time his will shall be proved, or letters of administration
of his death granted, and his estate settled, in the Regional Trial
Court in the province in which he resides at the time
Section 1. Where estate of deceased persons of his death, and if he is an inhabitant of a foreign
settled. — If the decedents is an inhabitant of the country, the RTC of any province in which he had
Philippines at the time of his death, whether a estate. The court first taking cognizance of the
citizen or an alien, his will shall be proved, or settlement of the estate of the decedent, shall
letters of administration granted, and his estate exercise jurisdiction to the exclusion of all other
settled, in the Court of First Instance in the courts.
province in which he resides at the time of his
death, and if he is an inhabitant of a foreign BAR Q (2003):
country, the Court of First Instance of any A, a resident of Malolos, Bulacan, died leaving an
province in which he had estate. The court first estate located in Manila, worth P200,000.00. In what
taking cognizance of the settlement of the estate court, taking into consideration the nature of
of a decedent, shall exercise jurisdiction to the jurisdiction and venue, should probate proceeding
exclusion of all other courts. The jurisdiction on the estate of A be instituted?
assumed by a court, so far as it depends on the
place of residence of the decedent, or of the A:
location of his estate, shall not be contested in a The Municipal Trial Court of Malolos, Bulacan has
suit or proceeding, except in an appeal from that jurisdiction of the probate proceeding on the estate
court, in the original case, or when the want of of A taking into account the amount of the estate
jurisdiction appears on the record. involved valued at Php 200,000.00. Venue is in
Bulacan as A is a resident of Malolos, Bulacan at the
time of his death. -

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 20

imprisonment of such person until he performs

Here, it is obvious that he is a resident of the such order or judgment, or is released.
Philippines then it should be filed in the place where
he is a resident of. In this case, it is Malalos, Bulacan. So pwede magpaissue ug warrant.

Kung sa US sya nagareside, it should be filed in Section 4. Presumption of death. — For purposes
Manila because it is where the property is located. of settlement of his estate, a person shall be
presumed dead if absent and unheard from
But since the question is jurisdiction, you have to for the periods fixed in the Civil Code. But if
answer if it is the RTC or MTC. such person proves to be alive, he shall be
entitled to the balance of his estate after
Section 2. Where estate settled upon dissolution payment of all his debts. The balance may be
of marriage. — When the marriage is dissolved recovered by motion in the same proceeding.
by the death of the husband or wife, the
community property shall be inventoried, (End of discussion. Atty will just send the PPTs)
administered, and liquidated, and the debts
thereof paid, in the testate or intestate Periods of absence as fixed by the Civil Code
proceedings of the deceased spouse. If both
spouses have died, the conjugal partnership shall Art. 390. After an absence of seven years, it
be liquidated in the testate or intestate being unknown whether or not the absentee still
proceedings of either. lives, he shall be presumed dead for all purposes,
except for those of succession.
Can a probate court issue writs of execution?
The absentee shall not be presumed dead for the
GR: purpose of opening his succession till after an
No, a probate court cannot issue writs of execution absence of ten years. If he disappeared after the
because its orders usually refer to the adjudication age of seventy-five years, an absence of five years
of claims against the estate which the executor or shall be sufficient in order that his succession
administrator may satisfy without the need of may be opened.
executor processes.
Art. 391. The following shall be presumed dead
Exceptions: for all purposes, including the division of the
• To satisfy the contributive shares of the estate among the heirs:
devisees, legatees and heirs on possession (1) A person on board a vessel lost during a sea
of the decedent’s assets as laid down in voyage, or an airplane which is missing, who has
Rule 88, Section 6 not been heard of for four years since the loss of
• To enforce payment of expenses of the vessel or airplane;
partition under Rule 90, Section 3 (2) A person in the armed forces who has taken
• To satisfy the cost when a person is cited part in war, and has been missing for four years;
for examination in probate proceedings (3) A person who has been in danger of death
under Rule 142, Section 13. under other circumstances and his existence has
not been known for four years.
Section 3. Process. — In the exercise of probate
jurisdiction, Courts of First Instance may issue Art. 392. If the absentee appears, or without
warrants and process necessary to compel the appearing his existence is proved, he shall
attendance of witnesses or to carry into effect recover his property in the condition in which it
theirs orders and judgments, and all other may be found, and the price of any property that
powers granted them by law. If a person does may have been alienated or the property
not perform an order or judgment rendered by a acquired therewith; but he cannot claim either
court in the exercise of its probate jurisdiction, it fruits or rents.
may issue a warrant for the apprehension and

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 21

Possible consequences if, in the course of an has not participated therein or had no notice
intestate proceedings, a will is later discovered thereof.
• The probate of the will is mandatory. If in
the course of the intestate proceedings, it is Usually what happens here is that the decedent, as
found that the decedent had left a last will, we all know is the person who died, has left
proceedings for the probate of the latter properties or his estate. So, the heirs, because they
should replace the intestate proceedings. do not want to go through the proceedings in court,
• The will must be proved and allowed first. they had agreed among themselves to divide the
estate.

01/17/2022 | By: RJNR They will execute this particular document which
will be in a public instrument. When you say public
RULE 74 instrument, this means to say that it is a notarized
document. If there is only one heir, he may
Section 1. Extrajudicial settlement by agreement adjudicate unto himself the entire estate by means
between heirs. — If the decedent left no will and of and affidavit filed in the office of the Register of
no debts and the heirs are all of age, or the Deeds.
minors are represented by their judicial or legal
representatives duly authorized for the purpose, If there are many heirs, that’s extrajudicial
the parties may without securing letters of settlement of the estate that you’re going to file,
administration, divide the estate among have notarized by a notary public, and file it before
themselves as they see fit by means of a public the Registry of Deeds. If there is only one heir,
instrument filed in the office of the register of instead of executing an extrajudicial settlement of
deeds, and should they disagree, they may do so estate, he will only execute an affidavit of self-
in an ordinary action of partition. If there is only adjudication, adjudicating unto himself the entirety
one heir, he may adjudicate to himself the entire of the estate left by the decedent. Of course, it’s still
estate by means of an affidavit filled in the office done through a public instrument. And you have to
of the register of deeds. The parties to an comply with the requirements like publication as
extrajudicial settlement, whether by public provided in the law which is 3 consecutive weeks
instrument or by stipulation in a pending action which you also have to report to the Registry of
for partition, or the sole heir who adjudicates the Deeds.
entire estate to himself by means of an affidavit
shall file, simultaneously with and as a condition Usually, the decedent leaves a large amount of cash
precedent to the filing of the public instrument, in the bank. They will ask to withdraw the said
or stipulation in the action for partition, or of the amount from the bank. The heirs will be required to
affidavit in the office of the register of deeds, a execute an extrajudicial settlement regarding the
bond with the said register of deeds, in an said amount left in the bank. If that is the case, then
amount equivalent to the value of the personal you will also be required to file a bond with the
property involved as certified to under oath by Registry of Deeds.
the parties concerned and conditioned upon the
payment of any just claim that may be filed under In your Taxation Law, if there are estates left by the
section 4 of this rule. It shall be presumed that decedent, of course you will be subjected to an
the decedent left no debts if no creditor files a estate tax.
petition for letters of administration within two
(2) years after the death of the decedent. After the notarization of the extrajudicial settlement
of the estate, or an affidavit of self-adjudication in
The fact of the extrajudicial settlement or case there is only one heir, report it to the Registry
administration shall be published in a newspaper of Deeds and then you pay also your estate tax
of general circulation in the manner provided in before the properties can be given to the heirs.
the nest succeeding section; but no extrajudicial
settlement shall be binding upon any person who

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 22

In the 2nd paragraph, there are always instances in Exceptions to the Rule that the Estate should be
which parties or clients will come to your office and Judicially Administered
they will want to execute an extrajudicial settlement. • Extrajudicial settlement by agreement (Sec. 1)
This is out of court.
Rule with Respect to the Estate left by the • Action for partition (Sec. 1)
Decedent This is a judicial partition. It happens when the heirs
GR: do not have a common agreement
When a person dies leaving property, the same • Self-adjudication of a sole heir by executing
should be judicially administered and the an affidavit (Sec. 1)
competent court should appoint a qualified • Summary settlement of estates of small
administrator, in the order established in Section 6 value (Sec. 2)
Rule 78, in case the deceased left no will, or in case
he had left one, should he fail to name an executor Extrajudicial settlement of Estate
therein. Heirs do not need to go to court to partition the
properties left by the deceased decedent, which is
So, when a person dies intestate or testate, and he collectively recognized as the estate. It is settling an
failed to name an executor in his will or the executor estate by drafting a contract where the properties
named is incompetent or he refuses the trust or he are divided among the heirs as they see fit.
fails to furnish the bond, then the decedent’s estate
shall be judicially administered. Common Requirements for an Extrajudicial
Settlement to be Valid:
Exception: 1. The decedent died intestate i.e., without a
Found in Rule 74 Sec 1 wherein the heirs, when the valid will;
decedent left no will and there are no debts due to The extrajudicial settlement applies only IF THE
the estate, may of course divide the estate either DECEDENT DIES INTESTATE or he has no will.
extrajudicially or in an ordinary action for partition
without submitting the same for judicial 2. The estate has no outstanding debts at the
administration. No need to appoint an time of the extrajudicial settlement;
administrator. This requirement must be specified or stated in your
extrajudicial settlement or self-adjudication
Unsa man ning judicial partition? document.
Di ba kung mag extrajudicial partition, kung
nagkasinabot ang tanang heirs nga mao ni siya 3. The heir/s are all of age, or the minor heirs
ilang binahinay, they just execute or they just are represented by their judicial guardians
appear before the Notary Public and execute an or legal representatives;
extrajudicial settlement. Now what if one of the
heirs, do not agree to the way that the partition will 4. The extrajudicial settlement is made in a
be made? What happens is there will be a judicial public instrument, stipulation or affidavit
partition. The other heirs, since there is no common duly filed with the Register of Deeds;
agreement with the heirs, will be compelled to really
file a case for judicial partition. So this is an 5. The fact of such extrajudicial settlement
exception to the general rule that there is a must be published in a newspaper of
requirement for the judicial administration of the general circulation once a week for three (3)
state. consecutive weeks; and
Usually, ang mga law offices naa na silay mga
In this instance if there is extrajudicial or judicial contact na naga publish aning extrajudicial
partition of the estate, then there is no need for the settlement. The price ranges from Php700-1,500 as
appointment of an administrator by the court the case may be.
because they can already proceed with the
partition. Under the IBP rules or didto sa taripa, Extrajudicial
Settlement which includes publication will usually
be around Php10,000 kung walay transfer but of

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 23

course pwede siya mutaas if valuable ang property are represented by their judicial or legal
involved. Kung simple ra siya, Php10,000 ang representatives duly authorized for the purpose.
drafting sa extrajudicial settlement apil na ang
publication. Dispensation of Executor or Administrator
a) Through the execution of a public
6. The parties to the extrajudicial settlement instrument by the heirs in an extrajudicial
shall file a bond with the Register of Deeds settlement of the estate
in an amount equivalent to the value of the b) Through the ordinary action of partition
personal property involved.
This bond should be filed simultaneously with the A reading of the enumeration would reveal
Extrajudicial Settlement instrument. The purpose of instances when the appointment of an executor or
this bond is to answer for any just claim at any time administrator is dispensed with.
within two years after the settlement and
distribution of the estate. This usually happens kung Not pursuing partition, but instead filing an
nay nahibilin na kwarta sa banko and decedent. Administration Proceeding
When a person dies intestate, his or her estate may
Who may execute and Extrajudicial Settlement? generally be subject to judicial administration
a) Sole Heir- Affidavit of Self-Adjudication proceedings. There are however, several exceptions.
b) Heirs agreeing among themselves- XJ One of such exception is provided for in Section 1
Settlement of Rule 74 of the Rules of Court.

Summary Settlement of Estates of Small Value According to this provision, when the deceased left
It is a summary proceeding for the settlement of no will and no debt and the heirs are all of age, the
estate of a deceased person whether he died testate heirs may divide the estate among themselves
or intestate if the gross value of the estate is Php without judicial administration. The heirs may do so
10,000.00 without need of an appointment of an extrajudicially through a public instrument filed in
administrator or executor. the office of the Register of Deeds. In case of
disagreement, they also have the option to file an
The rule recognizes that there are estates left by action for partition.
deceased persons which are of small value, so you
only have to file a summary settlement. Section 1 of Rule 74, however, does not prevent the
heirs from instituting administration proceedings if
When may heirs resort to an ordinary action of they have good reasons for choosing not to file an
partition? action for partition.
As you can recall in your Civil Law, you may already
have an idea of what a partition is especially in co- While Sec 1 allows the heirs to divide the state
ownership. Let’s say the decedent left an estate na among themselves as they may see fit, or to resort
daghag heirs, of course these heirs are co-owners to an ordinary action of partition, it does not compel
of the property and they can agree to partition the them to do so if they have good reasons to take a
property. different course of action. Said section is not
mandatory or compulsory as may be gleaned from
As mentioned, if nag agree ang heirs among the use made therein of the word may. If the
themselves, and no will was left, all they have to do intention were otherwise the framer of the rule
is have an Extrajudicial Settlement of the estate. would have employed the word shall as was done
in other provisions that are mandatory in character.
Now what if there is agreement? This is when the Since such proceedings are always “long” “costly”
ordinary action of partition comes in. According to “superfluous” and “unnecessary,” resort to judicial
Rule 74 of the Rules of Court, the heirs may resort administration of cases falling under Sec 1, Rule 74
to an ordinary action of partition of the estate of the appears to have become the exception rather than
deceased if they disagree as to the exact division of the rule. Cases subsequent to Rodriguez
the estate, and only if the decedent left no will and emphasized that “where partition, either in or out of
no debts and the heirs are all of age, or the minors court, the estate should not be burdened with an

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 24

administration proceeding without good and 2. Summary Settlement of Estate of Small

compelling reasons.” Value

The ordinary action for partition is meant to take the BAR Q (2005):
place of the special proceeding on the settlement Nestor died intestate in 2003, leaving no debts. How
of the estate. The reason is that, if the deceased dies may his estate be settled by his heirs who are of
without pending obligations, there is no necessity legal age and have legal capacity? Explain.
for the appointment of an administrator to
administer the estate for the estate for the heirs and A:
the creditors, much less, the necessity to deprive the The Rules of Court particularly Sec 1 Rule 74 is
real owners of their possession to which they are applicable on the matter. If the decedent left no will
immediately entitled. and no debts, as in the case of Nestor, and the heirs
are all of legal age, his heirs may, without securing
Is partition proper when there remains an issue letters of administration, divide the estate among
as to the expense chargeable to the estate? themselves by means of a public instrument or by
What if for example there are funeral expenses that stipulation in a pending action for partition and
has to be paid? Pwede ba na derecho partition shall file a bond with the Register of Deeds in an
imong ifile? amount equivalent to the value of the personal
property involved as certified to under oath by the
Partition in this instance is inappropriate. In a parties concerned. The fact of extrajudicial
situation where there remains an issue as to the settlement shall be published in a newspaper of
expenses chargeable to the estate, partition is general circulation once a week for three
inappropriate. While petitioner points out that the consecutive weeks in the province.
estate is allegedly without any debt and she and
respondents are Leandro Figuracion’s only legal BAR Q (1994):
heirs, she does not dispute the finding of the CA Rene died intestate, leaving several heirs and
that “certain expenses” including those related to substantial property here in the Philippines
her father’s final illness and burial have not been 1. Assuming Rene left no debts, as counsel for
properly settled. Thus, the heirs (petitioners and Rene’s heirs, what steps would you suggest
respondents) have to submit their father’s estate to to settle Rene’s estate in the least expensive
settlement because the determination of these manner?
expenses cannot be done in an action for partition. 2. Assuming Rene left only one heir and no
In estate settlement proceedings, there is a proper debt, as counsel for Rene’s lone heir, what
procedure for the accounting of all expenses for steps would you suggest?
which the estate must answer. If it is any consolation
at all to petitioner, the heirs or distributees of the A:
properties may take possession thereof even before 1. It is humbly submitted that to settle Rene’s
the settlement of accounts, as long as they first file estate in the least expensive manner, an
a bond conditioned on the payment of the estate’s extrajudicial settlement of estate by
obligations. (Gerilla v. Vda. De Figuracion, G.R. No. agreement pf the parties should be made
154322, August 22 2006) through a public instrument to be filed with
the register of deeds together with a bond
BAR Q (2001) in an amount equivalent to the value of the
The rules on special proceedings ordinarily require personal property involved as certified
that the estate of the deceased should be judicially under oath by the parties concerned and
administered through an administrator or executor. conditioned upon payment of any just
What are the exceptions to the said requirement? claim that may be filed within two years by
an heir or other person unduly deprived of
A: participation in the state.
1. Extrajudicial Settlement of Estate or 2. Rene’s lone heir may adjudicate to himself
Affidavit of Self-Adjudication the entire estate by executing an affidavit of
self-adjudication to be field with the

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 25

Register of Deeds and upon submission of of a notice which shall be published once a week for
other requirements three consecutive weeks in a newspaper of general
circulation in the province, and after such other
TAKE NOTE: An affidavit of self-adjudication is only notice to interested persons as the court may direct,
proper when the affiant is the SOLE HEIR of the the court may proceed summarily, without the
decedent. If there’s an issue on whether or not sole appointment of an executor or administrator, to
heir ra ba gyud siya, of course it is not proper to settle the estate.
have an affidavit of self-adjudication kung naa diay
laing heirs. Atty’s opinion: this has to be amended. Gamay na
kayo ni na value sa isa ka estate. This should no
BAR Q (1998): longer be considered as small value. Maybe during
A, claiming to be an illegitimate child of the 1997 when the Rules of Court was made this is small
deceased D, instituted an intestate proceeding to value pero karon gamay na kayo ang Php10,000.
settle the estate of the latter. He also prayed that he
be appointed administrator on the ground that he Should partition among heirs be in writing to be
was not the child of her deceased husband D. the valid?
court, however, appointed A as the administrator of Usually it happens labi na sa bukid mag binahinay
said estate. Subsequently, S, claiming to be the sole sila unya nag sabot sila sa mga parte nila na mata-
heir of D, executed an affidavit of self-adjudication, mata lang. Unya wala sila nag execute in writing. Is
adjudicating unto herself the entire estate of her there a requirement that an extrajudicial settlement
deceased husband D. S sold the entire estate to X. must be written to be valid?

Was the action of S in adjudicating the entire estate Manila Times Article 2019:
of her late husband to herself legal? Dear PAO,

A: My problem is my sister who wants to get all the

The action of S in adjudicating the entire estate of properties left by our parents. She sued me and
her late husband to herself is not legal because my brother in court, claiming that we should give
under the Rules of Court, an affidavit of self- her share on the estate left by our parents. The
adjudication is allowed only if the affiant is the sole case was referred to mediation and, during the
heir of the deceased. In this case, it appears that first meeting, she said she was no longer
there is someone who also claims to be an heir. The interested to claim her share and that she was
fact that there is a pending judicial proceeding for waiving the same in our favor; hence, my brother
the settlement of the estate would suggest that and I agreed to divide equally the property. On
there is doubt as to whether she is indeed the sole the scheduled final meeting where we should
heir to the estate. sign the written partition with waiver, she sent
her lawyer informing us that she cannot attend
BAR Q (1994) the proceeding so it was only my brother and I
Rene died intestate, leaving several heirs and who signed the agreement. Now, she is claiming
substantial property here in the Philippines. that the written agreement is not valid because
Assuming that the value of Rene’s estate does not she did not sign it. Is she correct?
exceed Php 10,000, what remedy is available to
obtain a speedy settlement of his estate? Feline

A: A:
To obtain a speedy settlement of his estate, the Citing Hernandez v. Andal, the Court in the above-
remedy available is to proceed to undertake a mentioned case explained that under Rule 74,
summary settlement of estate of small value under Section 1 of the Rules of Court, ‘there is nothing in
Section 2, Rule 74 of the Rules of Court since Rene’s said section from which it can be inferred that a
estate does not exceed Php10,000. The hearing writing or other formality is an essential requisite to
shall be held not less than one month nor more than the validity of the partition. Accordingly, an oral
three months from the date of the last publication partition is valid.’ The Court further added that the

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 26

partition among heirs or renunciation of an

inheritance by some of them is not exactly a
conveyance of real property because it does not
involve transfer of property from one to the other,
but rather a confirmation or ratification of title or
right of property by the heir renouncing in favor of
another heir accepting and receiving the
inheritance. Hence, an oral partition is not covered
by the Statute of Frauds.

Applying the above-cited decision in your situation,

the statement of your sister that the agreement of
partition, which you and your brother signed is not
valid because she did not affix her signature on it
has no legal basis. It is important to emphasize that
there is already an agreement, although orally
made, which was entered during the first meeting
that she will renounce her share and the estate will
be divided equally between you and your brother.
Even oral partition may be valid and binding upon
the heirs and there is no law requiring that the
partition be in writing to be valid.

When does the presumption that the decedent

left no debts arise?
Remember that I told you that in Sec 1 of Rule 74,
in the last paragraph you have to be wary of that. It
shall be presumed that the decedent left no debts if
there is no creditor who files a petition for letters of
administration within two years after the death of
the decedent.

What happens when there is an extrajudicial

This is an example of an annotation in a title of a
settlement of estate?
property that went through an extrajudicial
Diba niingon sila (heirs) sa pag execute nila ug
settlement. Dapat after two years kung walay
extrajudicial settlement na “kami mga heirs ni
creditors ang mu-file inyoha ning ipa cancel na
Polano na namatay na intestate na namatay ani na
annotation.
date sa Davao City. Sa among knowledge wala siyay
utang.” Maong na transfer ang property tungod sa
How do you cancel this annotation? Mag file ka ug
extrajudicial settlement. Now if there is such a
petition to cancel annotation with the Registry of
proceeding, there is a provision sa titulo na within
Deeds.
two years from the death of the decedent, dapat
mufile na ang mga creditors niya. If walay ni file na
The fact of the extrajudicial settlement or
creditors, ibig sabihin wala siyay debts.
administration shall be published in a newspaper
of general circulation in the manner provided in
the next succeeding section; but no extrajudicial
settlement shall be binding upon any person who
has not participated therein or had no notice
thereof.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 27

This is also in connection to your Sec. 4, Rule 74. We such other person may compel the settlement of
all know that there is a publication requirement of the estate in the courts in the manner hereinafter
an extrajudicial settlement. Is this similar to your provided for the purpose of satisfying such lawful
other laws in which publication is considered as a participation. And if within the same time of two
constructive notice to the whole world? (2) years, it shall appear that there are debts
outstanding against the estate which have not
The procedure outlined in Sec 1 Rule 74 is an ex been paid, or that an heir or other person has
parte proceeding. The rule plainly states, however, been unduly deprived of his lawful participation
that persons who do not participate or had no payable in money, the court having jurisdiction of
notice of an extrajudicial settlement will not be the estate may, by order for that purpose, after
bound thereby. It contemplates a notice that has hearing, settle the amount of such debts or lawful
been sent out or issued before any deed of participation and order how much and in what
settlement and/or partition is agreed upon (i.e., a manner each distributee shall contribute in the
notice calling all interested parties to participate in payment thereof, and may issue execution, if
the said deed of extrajudicial settlement and circumstances require, against the bond
partition), and not after such an agreement has provided in the preceding section or against the
already been executed as what happened in the real estate belonging to the deceased, or both.
instant case with the publication of the first deed of Such bond and such real estate shall remain
extrajudicial settlement among heirs. charged with a liability to creditors, heirs, or other
persons for the full period of two (2) years after
The publication of the settlement does not such distribution, notwithstanding any transfers
constitute constructive notice to the heirs who had of real estate that may have been made.
no knowledge or did not take part in it because the
same was notice after the fact of execution. The The Rule does not apply to persons who have no
requirement of publication is geared for the knowledge of it. The provisions of Sec 4 Rule 74
protection of creditors and was never intended to barring distributes or heirs from objecting to an
deprive heirs of their lawful participation in the XJ partition after the expiration of 2 years from
decedent’s estate. In this connection, the records of such XJ partition, is applicable only to:
the present case confirm that respondents never
signed either of the settlement documents, having 1. Persons who have participated or taken
discovered their existence only shortly before the part or had notice of the XJ partition; and in
filing of the present complaint. Following Rule 74, addition
these extrajudicial settlements do not bind 2. When the provisions of Sec 1 Rule 74 have
respondents, and the partition made without their been strictly complied with
knowledge and consent is invalid insofar as they are
concerned. (Benatiro vs Heirs of Cuyos) Unsa may pasabot ani? That all the persons or heirs
of the decedents have taken part in the XJ
So that’s why katong two years na period, kay settlement or have been represented by guardians
creditors to siya actually na dapat iyahang ifile ang or had notice of the XJ partition.
iyahang claim sa estate within two years. Kung dili
niya ma-file, ma cancel na ang annotation sa title. XJ partition despite their knowledge that there were
Kaning mga heirs na gi-omit sa other heirs can still other heirs or claimants to the estate and before the
file. You cannot say na constructive notice ang final settlement of the estate by the intestate court-
publication. VOID.

Rule 74 Section 4. Liability of distributees and Doctrines:

estate. — If it shall appear at any time within two 1. No XJ settlement shall be binding upon
(2) years after the settlement and distribution of any person who has not participated
an estate in accordance with the provisions of therein or had no notice thereof;
either of the first two sections of this rule, that an 2. The action to annul an invalid deed of XJ
heir or other person has been unduly deprived of partition does not prescribe
his lawful participation in the estate, such heir or

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 28

It is not right also that you are going to say that it KSMMT
shall be brought within 2 years only because the UTULO V. VDA DE GARCIA
action does not prescribe. G.R. No. 45904, September 30, 1938
Facts:
BAR Q (2009): Juan Garcia Sanchez died intestate, and in the
Pinoy died without a will. His wife Rosie and three proceedings instituted in the Court of First
children executed a deed of extrajudicial settlement Instance of Tarlac for the administration of his
of his estate. The deed was properly published and property (special proceedings No. 3475), Leona
registered with the Office of the Register of Deeds. Pasion Vda. de Garcia, the surviving spouse and
Three years thereafter, Suzy appeared, claiming to the herein oppositor, was appointed judicial
be the illegitimate child of Pinoy. She sought to administratrix.
annul the settlement alleging that she was deprived
of her rightful share in the estate. Rosie and the The said deceased left legitimate children, named
three children contended that (1) the publication of Juan Garcia, jr., Patrocinio Garcia and Luz Garcia
the deed constituted constructive notice to the who, with the widow, are the presumptive forced
whole world, and should therefore bind Suzy; and heirs.
(2) Suzy’s action had already prescribed. Are Rosie
and the 3 children, correct? Explain. Luz Garcia married the applicant Pablo G. Utulo
and during the pendency of the administration
A: proceedings of the said deceased, she died in the
No, the publication of the deed of extrajudicial province without any legitimate descendants, her
partition does not constitute constructive notice to only forced heirs being her mother and her
the whole world since Rule 74, Sec 1 provides that husband.
“no extrajudicial settlement shall be binding upon
any person who has not participated therein or had The latter commenced in the same court the
no notice thereof.” Suzy’s action has not prescribed. judicial administration of the property of his
She can file the action therefore within four years deceased wife (special proceedings No. 4188),
after the settlement was registered. stating in his petition that her only heirs were he
himself and his mother-in-law, the oppositor, and
Section 5. Period for claim of minor or that the only property left by the deceased
incapacitated person. — If on the date of the consisted in the share due her from the intestate
expiration of the period of two (2) years of her father, Juan Garcia Sanchez, and asking
prescribed in the preceding section the person that he be named administrator of the property
authorized to file a claim is a minor or mentally of said deceased.
incapacitated, or is in prison or outside the
Philippines, he may present his claim within one The oppositor objected to the petition, opposing
(1) year after such disability is removed. the judicial administration of the property of her
daughter and the appointment of the applicant
as administrator. She alleged that inasmuch as
01/17/2022 | By: EJAL the said deceased left no indebtedness, there was
no occasion for the said judicial administration;
Last meeting, we discussed what a partition is. You but she stated that should the court grant the
are going to divide the properties left by the administration of the property, she should be
decedent so the estate will be divided to the heirs. appointed the administratrix thereof inasmuch as
The parties like heirs or siblings would choose what she had a better right than the applicant.
particular property would go to A, B, C, D and E. If it
is an extra-judicial settlement of estate, they will Issue:
agree among themselves that this particular Whether or not, upon the admitted facts, the
property will now be transferred to A and so on. judicial administration of the property left by the
deceased Luz Garcia lies, with the consequent
appointment of an administrator

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 29

Ruling: appointment of an administrator are superfluous

No. We have section 642 of the Code of Civil and unnecessary proceeding.
Procedure providing in part that "if no executor
is named in the will, or if a person dies intestate, If you have complied with Rule 74 that the decedent
administration shall be granted" etc. This had left the estate and there are no pending
provision enunciates the general rule that when obligations to be paid then all the heirs of all legal
a person dies living property in the Philippine ages, then they are not bound to submit the same
Islands, his property should be judicially estate into a judicial administration. The matter of
administered and the competent court should appointing an administrator would be considered
appoint a qualified administrator, in the order superfluous and unnecessary. It will just render the
established in the section, in case the deceased parties an unnecessary burden. The administration
left no will, or in case he had left one should he proceedings are tedious proceedings in which you
fail to name an executor therein. This rule, will have to undergo a lot of expenses.
however, is subject to the exceptions established
by sections 596 and 597 of the same Code, as The rights to the succession of a person are
finally amended. According to the first, when all transmitted from the moment of his death; in
the heirs are of lawful age and there are no debts other words, the heirs succeded immediately to
due from the estate, they may agree in writing to all of the property of the deceased ancestor
partition the property without instituting the
judicial administration or applying for the The property belongs to the heirs at the moment
appointment of an administrator. According to of the death of the ancestor as completely as if
the second, if the property left does not exceed the ancestor had executed and delivered to them
six thousand pesos, the heirs may apply to the for the same before his death.
competent court, after the required publications,
to proceed with the summary partition and, after The opening of the estate left of the decedent
paying all the known obligations, to partition all would be from the moment of the death decedent.
the property constituting the inheritance among From that moment, it is as if his ancestor had
themselves pursuant to law, without instituting executed and delivered to them for the same before
the judicial administration and the appointment his death. This is pursuant to the concept that the
of an administrator. heirs succeeded to all the properties left by the
deceased from the time of his death. This is a basic
Take note that this is a 1932 case. In the 1930s, the principle that is enunciated and carried over to Rule
predecessor of our New Civil Code and the 74.
predecessor of the present Rules of Court will be the
Code of Civil Procedure. More or less, the rules are In the absence of debts existing against the
the same. estate, the heirs may enter upon the
administration of the said property immediately.
If no executor is needed in the will or if a person
dies, intestate administration is granted. This If they desire to administer it jointly, they may do
provision enunciates the general rule that when a so.
person dies, living property in the Philippine Island,
his property shall be judicially administered and the If they desire to partition it among themselves
competent court should appoint a qualified and can do this by mutual agreement, they also
administrator. We all know that this is the rule. First, have that privilege.
it should be judicially administered.
When you are already the owners of the said
Construing the scope of section 596, this court property, no need to undergo administration
repeatedly held that when a person dies without proceedings and wait for the administrator.
leaving pending obligation to be paid, his heirs,
whether of age or not, are not bound to submit If they desire to execute an extrajudicial settlement
the property to a judicial administration and of estate, they also have that privilege.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 30

Those are the basic principles, as stated in your Rule If then the property of the deceased, who dies
74. intestate, passes immediately to his heirs, as
owners and there are no debts, what reason can
To qualify in Rule 74 there be for the appointment of a judicial
administrator to administer the estate for them
When there are no debts existing against the and to deprive the real owners of their
estate, there is certainly no occasion for the possession to which they are immediately
intervention of an administrator in the settlement entitled?
and partition of the estate among the heir.
The Supreme Court said na pwede na derecho
When the heirs are all of lawful age and there are partition. No need to undergo cumbersome process
no debts, there is no reason why the estate of administration proceedings.
should be burdened with costs and expenses of
an administrator. As the instant case, of who is the better
administrator of the estate left by Luz. Will it be
The heirs are not precluded to agree among husband Pablo or mother Leona? The Supreme
themselves to have a mutual covenant to which Court decided that there is no need which of the
they will just going to have an extrajudicial parties has the preferential right to the office of
settlement of estate as they agreed upon. administrator. Since, it is no longer necessary that it
will be undergoing an administration proceeding.
Take note, if there is only one heir, then what is to
be executed is not an extrajudicial settlement but an It is enough that you will have to follow Rule 74 or
affidavit of self adjudication. partition proceedings.

The property belongs absolutely to the heirs, in HERNANDEZ V. ANDAL

the absence of existing debts against the estate, G.R. No. L-273, March 29, 1947
the administrator has no right to intervene in any
way whatsoever in the division of the estate This involves a small parcel of land which is
among the heirs. inherited by Four Sisters and a brother. It was
surveyed, assessed as a single lot not in the name
They are co-owners of an undivided estate and of the co-owners but in that of an uncle. It
law offers them a remedy for the division of the appears that prior to that, two of the sisters had
same among themselves. actually sold a portion of the lot to the Uncle.

The administrator has no right to intervene because Issue:

the heirs can partition the property or divide the Is oral partition effective?
estate among themselves.
Ruling:
All properties, whether real or personal, of the Regardless of whether a parcel partition or
deceased person who dies intestate is transmitted agreement to partition is valid and enforceable at
immediately to the heirs. law, equity will in proper cases, where the parol
partition has actually been consummated by the
They are co-owners of an undivided estate and law taking of possession in severalty and the exercise
offers them a remedy for the division of the same of ownership by the parties of the respective
among themselves. This remedy is provided in your portions set off to each, recognize and enforce
Rule 74. such parol partition and the rights of the parties
thereunder.
You cannot say that it is an administration
proceeding because under Rule 74, they can For example, heirs have agreed with the partition
partition the properties left by the decedent among and did not put it in writing. Two sisters will take
themselves. over properties in Mintal while the properties left in
the downtown area will be given. Is this effective?

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 31

It was argued in the instant case that the parol And this Court had no apparent reason, in
partition among the brothers and sisters had been adopting this rule, to make the efficacy of a
made mentioning the names of witnesses even as partition as between the parties dependent on
to had witnessed that there was indeed an oral the execution of a public instrument and its
agreement among the heirs as to how the estate will registration. On the other hand, the opposite
be divided. theory is not without reasonable support.

According to the oppositors, this parol evidence of In fact, SC even discussed these Rules. Prior to Rule
partition is inadmissible because it has to be in 74, we have the Civil Procedure. According to the
writing. rules, the parties may a portion and divide among
themselves the estate as they may fit by agreement
According to the Supreme Court, it is valid. Oral duly executed in writing by all of them but adds the
partition is recognized. words “not otherwise”.

A parol partition may also be sustained on the The phraseology that it must be in writing and not
ground that the parties thereto have acquiesced otherwise was deliberately stricken off the rule 74. If
in and ratified the partition by taking possession you have read Rule 74, there is nothing there that it
in severalty, exercising acts of ownership with provides that it must be in writing ang settlement of
respect thereto, or otherwise recognizing the estate and that it should not be in oral form.
existence of the partition.
According to the SC, if that is the case, then, the
It is also based on equity that you are going to legislators or the ones who made the rules have
recognize Parol Partition/ Oral Partition especially clearly provided that there is no need for it to be in
here that the parties have already possessed the writing. We should also take note that it was not
properties that they have agreed to possess. provided in your Statute of Fraud. Civil lists only
provide what are the contracts needed to be in
Here, there was already an exercise of ownership writing. This extra-judicial settlement of estate or
and thus it should be recognized that there was you self adjudication are not among those
already an existing partition that the parties have documents.
agreed among themselves.
Even Civil Code recognizes that verbal contracts
There are no indications in the phraseology of may be effective between the parties. It is wrong to
this rule which justify affirmative answers to these say that only written contracts are the ones that are
questions. going to be enforced in courts. Your verbal
contracts can also be considered as valid. The
It must be noted that where the law intends a Supreme Court has stated here that in their blind
writing or other formality to be the essential faith in friends and relatives, in their lack of
requisite to the validity of the transactions it says experience and foresight, and their ignorance, men,
so in clear and unequivocal terms. in spite of laws, will make and continue to make
verbal contracts. From then, the Sc has already
In the instant case, it is not among the enumerated recognized that in the future, parties will really
under your statute of fraud this is to be included come to an agreement and they will not put it in
which is one required to be in writing. If it is the writing especially among friends and relatives.
intention of the law that it is to be in writing then it
should be categorically made in the provision. TORRES V. TORRES
10 SCRA 185 (1964)
Sec. 1 of Rule 74 contains no such express or
clear declaration that the required public There are Four legitimate children of Paz. One of
instrument is to be constitutive of a contract of them prayed for the issuance in his favor of a
partition or an inherent element of its letters of administration in connection with the
effectiveness as between the parties.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 32

properties left by the decedent which is in the RJNR

amount of Php300,000.00. ARCILLAS V. MONTEJO
26 SCRA 197 (1968)
This is opposed, however, by one of the heirs on Facts:
the ground that the appointment of the In the petition dated November 12 Geronimo
administrator is unnecessary because the heirs, Arcillas, one of the heirs of the deceased, sought
including the one petitioning to the court the cancellation of TCT No. RT-244 in the name
considered to be the administrator, had already of the deceased and prayed for the issuance of a
entered into an extrajudicial settlement of estate, new certificate of title in the names of the heirs in
and that they are going to have a partition based the enumerated proportions alleged in the
on Rule 74 of Rules of Court. petition. It was claimed that at various dates after
the death of the deceased, several transactions
He wants to apply for an administration proceeding. affecting Lot No. 276 transpired, prominent
For it to be converted (there has already been among which were the separate sales of their
settlement of), he mentioned that it should be an respective shares and participation in Lot No. 276
administration proceeding and he should be the executed by four (4) other children of the
one to be considered as administrator. In order to deceased in favor of co-heir Vicente Arcillas.
do so, she had mentioned in her allegations that it
has to be converted into an administration Issue
proceeding because there are still debts which are Is Section 1 of Rule 71 mandatory upon the heirs
left to third persons which are not mentioned in the if the deceased left no will nor any pending
petition for settlement of estate. Also, there are obligations to be paid and his heirs are all of age?
other properties, which are part of the estate, that
are not included. Ruling
No. Section 1 of Rule 74 of the Rules of Court
Ruling: does not preclude the heirs from instituting
Thus, where the decedent left no debts and heirs administration proceedings, even if the estate
or legatees are all of age, as in this case, there is has no debts or obligation, if they do not desire
no necessity for the institution of special to resort for good reasons to an ordinary action
proceedings and the appointment of an of partition.
administrator for the settlement of the estate,
because the same can be effected either While section 1 allows the heirs to divide the
extrajudicially or through an ordinary action for estate among themselves as they may see fit, or
partition. to resort to an ordinary action of partition, it does
not compel them to do -so if they have good
If there is an actual necessity for court reasons to take a different course of action. Said
intervention, as contended by appellant, in view section is not mandatory or compulsory as may
of the heirs’ failure to reach an agreement as to be gleaned from the use made therein of the
how the estate would be divided physically, the word may.
latter, under the aforequoted Rule, still have the
remedy of an ordinary action for partition. If the intention were otherwise the framer of the
rule would have employed the word shall as was
The parties here have not proven that there is really done in other provisions that are mandatory in
no debt or there are certain properties not included. character. Note that the word may is used not
So, partition would still be proper because from the only once but in the whole section which
moment of death of the decedent, the heirs will be indicates an intention to leave the matter entirely
the one going to own the properties. Thus, they can to the discretion of the heirs.
institute a partition proceeding if one of the heirs
will not agree to the division of the estate. Having decided to institute administration
proceedings (as in the case at bar) instead of
resorting to the less expensive modes of
settlement of the estate, i.e. extrajudicial

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 33

settlement or ordinary action for partition, the pending obligations to be paid and his heirs are
heirs may not be rebuffed in the exercise of their all of age.
discretion granted under section 1 of Rule 74 of
the Rules of Court merely on the ground that the
expenses usually common in administration 01/17/2022 | By: JGP
proceedings may deplete the funds of the estate.
KSMMT
The resultant delay and necessary expenses ERMAC V. MEDELO
incurred thereafter are consequences which must G.R. No. L-32281, June 19, 1975
be deemed to have been voluntarily assumed by
the heirs themselves so that they may not in the Facts:
future be heard to complain of these matters. Petition for certiorari to set aside the order of
respondent court of June 25, 1970, in its Special
Besides, the truth or veracity of petitioner's claim Proceedings No. 1517, approving the project of
as to the alleged existence of other properties of partition filed by private respondent, pursuant to
the deceased aside from the lot in question can the order of the same court providing for
be more adequately ascertained in summary settlement of the intestate estate of the
administration proceedings rather than in any deceased spouses Potenciano Ermac and
other action. Anastacia Mariquit as well as of the order of July
15, 1970 denying reconsideration of the first
Take note, it is discretionary to the heirs to decide order.
whether or not they wanted partition.
The above-named spouses both died leaving as
If there are other properties, here, that are being the only property to be inherited by their heirs a
contested, administration proceeding is much parcel of land. Accordingly, herein respondent
better. Cenon Medelo, one of the grandchildren of the
said spouses, (being one of the children of their
Here, can you file an administration proceeding predeceased daughter Digna Ermac) filed a
without resorting to partition? petition for summary settlement of said estate.
All requirements having been complied with, and
Under section 1, Rule 74 of the New Rules of there being no opposition thereto, on January 21,
Court, if the decedent left no will and no debts 1970, respondent court issued an order granting
and the heirs and legatees are all of age, or the the same, enumerating all the heirs entitled to
minors are represented by their judicial participate in the inheritance and ordering
guardians, the parties may, without securing petitioner to present the proper project of
letters of administration, divide the estate among partition of the lot aforementioned.
themselves as they see fit by means of a public
instrument filed in the office of the Register of On February 2, 1970, however, petitioner Pedro
Deeds and should they disagree, they may do so Ermac, one of the children of the deceased
in an ordinary action of partition. And primarily spouses, moved for reconsideration of the order
anchored on the proposition that inasmuch as in of settlement, praying for the elimination of Lot
the present case the minimum requirements of 1327 from the estate on the ground that it
the aforementioned section obtain, i.e. the belongs to him and his wife.
decedent left no will and no debts and the heirs
are all of age, respondents claim that there is no This motion was denied, the court ruling that the
necessity for the institution of special proper remedy is a separate suit. Accordingly,
proceedings and the appointment of an petitioner, together with his children, filed the
administrator for the settlement of the estate for corresponding action, Civil Case No. 1564 of the
the reason that it is superfluous and unnecessary. Court of First Instance of Lanao del Norte. And
In other words, respondents apparently view when upon submission of the project of partition,
section 1 of Rule 74 as mandatory upon the heirs the respondent court approved the same over his
so long as the deceased left no will nor any objection predicated on the pendency of Civil

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 34

Case No. 1564, petitioner moved for

reconsideration, but the motion was denied. The motion of the child was denied because
Hence, the present petition. according to the court, what should be a remedy is
a separate suit and it should not be included in this
Issue: particular settlement estate filed by the grandchild.
Whether or not respondent court exceeded its
jurisdiction or gravely abused its discretion in According to the SC, tama man ang RTC that you
approving the project of partition covering Lot can proceed with the distribution of the estate
No. 1327 notwithstanding that it is being claimed notwithstanding the fact that there is a particular
by petitioners in a separate civil action to be their property which is being contested or whether or not
property and not of the estate it should be included in the estate.

Ruling: That is why the SC advised the child to proceed to

No. The policy of the law is to terminate another suit to determine whether or not this
proceedings for the settlement of the estate of property is to be excluded or not. So pwede niya
deceased persons with the least loss of time. This ipa-annotate nimo or there is a case regarding that
is specially true with small estates for which the property.
rules provide precisely a summary procedure
dispensing with the appointment of an EJAL
administrator together with the other involved Carreon v. Agcaoili
and cumbersome steps ordinarily required in the 1 SCRA 521 (1961)
determination of the assets of the deceased and Facts:
the persons entitled to inherit therefrom and the During the marriage of Bonifacio Carreon and
payment of his obligations. Definitely, the CelerinaDauag the registered land subject of this
probate court is not the best forum for the case was acquired. After the death of Carreon, his
resolution of adverse claims of ownership of any widow Celerina executed on September 24, 1946,
property ostensibly belonging to the decedent's an affidavit adjudicating to herself alone the said
estate. While there are settled exceptions to this land. She declared in said document that she was
rule as applied to regular administration the only heiress of her husband. The original
proceedings, it is not proper to delay the certificate of title covering the land was cancelled
summary settlement of a deceased person just and a transfer certificate was issued in her name.
because an heir or a third person claims that There was however annotated on her certificate
certain properties do not belong to the estate but a lien to the effect that her title was subject to
to him. Such claim must be ventilated in an Section 4 of Rule 74 of the Rules of Court.
independent action, and the probate court
should proceed to the distribution of the estate, A new transfer certificate of title was issued in the
if there are no other legal obstacles to it, for after name of Agcaoili.
all, such distribution must always be subject to
the results of the suit. For the protection of the On February 19, 1955, the children of Celerina
claimant the appropriate step is to have the with the deceased husband filed a complaint
proper annotation of lis pendens entered. against the spouses Agcaoili seeking to have the
deed of sale executed by their mother declared
Here, the deceased spouses left a certain estate. as one of mortgage and to recover onehalf pro-
One of the grandchildren filed a petition for indiviso of the land described in the complaint.
summary settlement of the estate. But one of the Simultaneous with the filing of said complaint,
children of the spouses had stated that they did not Celerina filed an action for intervention which
want a certain property to be included in the was dismissed by the trial court. Defendants filed
petition for summary settlement of the estate. a motion for summary judgment upon the plea
that the main averments of the complaint even if
So this child prayed for the elimination of this admitted do not constitute a cause of action and
certain property from the estate on the ground that supported their plea with certain documentary
it already belongs to him and his wife. evidence. Plaintiffs filed an opposition on the

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 35

ground that there was a genuine issue which than two years had elapsed. We sustain the lower
could not be determined unless a trial is had. court's opinion that thenceforth the right to have
such lien cancelled became vested on appellee
The trial court, however, allowed the parties to Agcaoili and that the same had become functus
submit evidence in support of their contentions oficio. 3 And there being no fraud in the
and after a careful analysis thereof found for transaction on the part of appellee, nor proof that
defendants holding that plaintiffs' claim has no he knew of any legal infirmity in the title of his
legal basis. As may be gleaned from the vendor, we find no reason to apply the
appellants' assignments of error, the present proposition that he is deemed to be holding the
appeal is predicated on the arguments that land in trust for the children of Celerina Dauag.
appellees were buyers in bad faith; that there
existed a trust relationship between them and On the transfer certificate of title issued to
appellants, and that such being the case, the Agcaoili there was annotated a statement that it
action against appellees is imprescriptible. There was subject to Section 4, Rule 74 of the Rules of
is no clear proof that when RufoAgcaoili bought Court. This was an annotation carried over from
the land he knew of any flaw in the title of Celerina's transfer certificate.
CelerinaDauag. The mere fact that he was a
townmate of Celerina is not sufficient basis to The mother pretended that she had no children. She
conclude that he knew that she had children by adjudicated to herself all of the property. And then
her first husband. It has been shown that since she sold it to another person.
1920 RufoAgcaoili has been an enlisted man in
the Philippine constabulary and seldom come It was annotated at the back of the title, a lien to the
home to visit his relatives. A man of such a effect that her title was subject to Sec. 4, rule 74 of
situation cannot be expected to know the the Rules of Court.
relatives and children of his vendor even if they
are townmates. Fraud cannot be presumed. It This annotation was carried over to the title of the
must be established by clear and sufficient new buyer. There was, however, no clear proof that
evidence. Here every indication is that Agcaoili when the buyer bought the land from the mother,
bought the land in all good faith oblivious of the that there was a flaw or defect in the title.
source of its acquisition. If fraud had been
committed such was perpetrated by Celerina, It was emphasized here of the oppositors that he
appellants' mother. should have known that the mother seller has
children sa first husband, considering the fact that
On the transfer certificate of title issued to they are of the same town.
Agcaoili there was annotated a statement that it
was subject to Section 4, Rule 74 of the Rules of The SC said that the mere fact that he was a
Court. This was an annotation carried over from townmate is not sufficient as a basis to conclude
Celerina's transfer certificate. that he knew that she had children.

Issue: The above lien is effective only for two years. We are
Whether or not the children of Celerina with the not going to go to the details to the propriety of the
deceased husband may recover one half pro- sale but to the annotation which is being carried
indiviso of the land and whether Agcaoili bought over to the title of the buyer. This lien, that is Rule
the land in all good faith despite the annotation 74, is only for a period of two years.
carried over from Celerina’s transfer certificate
From September 28, 1946, when a transfer
Ruling: certificate of title was issued to Celerina, to
No. The above lien is effective only for a period Septmber 8, 1949 when the deed of sale in favor of
of two years. From September 28, 1946, when a Agcaoili was issued and registered, more than two
transfer certificate of title was issued to Celerina, years had elapsed.
to September 8, 1949 when the deed of sale in
favor of Agcaoili was issued and registered, more

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 36

The SC sustains the lower court’s opinion that the Jose. At the time of his removal he was indebted
right to have such lien cancelled became vested on to the estate in the sum of P41,960.15.
Agcaoili and that the the same had become functus
oficio. For the default of Engracio Palanca, Mcmicking
filed a claim in the amount of 30,000 to the estate
If the annotation has been carried over to another of Pio de la Guardia Barretto as the surety of
buyer or owner, the annotation has to be cancelled. Doroteo Velasco who is the administrator of the
You have to file a petition for the cancellation of estate of Mariano Ocampo who in turn is the
annotation of Rule 74 before the Registry of Deeds. surety of said Engracio Palanca.

In this case, he exercised this right. It has become The lower court dismissed the case and rendered
vested already and two years have elapsed and judgment in favour of defendant.
there are no complaints from any heirs that they
have been prejudiced or stripped off of their rights Issue:
over the property. Whether or not plaintiff may claim against the
defendant as the surety of Doroteo Velasco
EJAL
McMicking v. Sy Conbieng Ruling:
21 Phil 211 (1912) Yes. The Court based their decision upon the
Facts: ground that Doroteo Velasco, for whom the
One Engracio Palanca was appointed deceased Pio de la Guardia Barretto was surety,
administrator of the estate of Margarita Jose. would not have been liable himself had this
Mariano Ocampo became one of the sureties of action been commenced against him. If the
Engracio Palanca. After the execution of the principal is not liable upon the obligation, the
bond, said Palanca took possession of all the surety cannot be.
property of Margarita Jose. Later on, Mariano
Ocampo died, testate. Doroteo Velasco was At the head of the law of administration of the
appointed administrator of the estate of Mariano Philippine Islands stand sections 596 and 597 of
Ocampo while Pio de la Guardia Barretto the Code of Civil Procedure.
(defendant) qualified as one of the sureties of
said Doroteo Velasco. These sections provide for the voluntary division
of the whole property of the decedent without
Doroteo Velasco, as administrator, filed with the proceedings in court. The provisions which they
court a complete report and inventory of the contain are extremely important. The wisdom
property of the deceased, together with a which underlies them is apparent. It is the
statement of all his debts and liabilities. The undisputed policy of every people which
Court of First Instance affirmed and approved the maintains the principle of private ownership of
partition. Pursuant to such agreement and order property that he who owns a thing shall not be
of the court approving the same, Doroteo deprived of its possession or use except for the
Velasco, delivered to the devisees and legatees most urgent and imperative reasons and then
of Mariano Ocampo, all of the property of said only so long as is necessary to make the rights
decedent leaving in the hands of said which underlie those reasons effective. It is a
administrator no property or thing of value principle of universal acceptance which declares
whatever belonging to said estate. that one has the instant right to occupy and use
that which he owns, and it is only in the presence
Meanwhile, Engracio Palanca was removed from of reasons of the strongest and most urgent
office as administrator of the estate of Margarita nature that principle is prevented from
Jose, and Jose McMicking (plaintiff) was accomplishing the purpose which underlies it.
appointed in his stead. Said Palanca was removed The force which gave birth to this stern and
from office by reason of the fact that he failed imperious principle is the same force which
and refused to render an account of the property destroyed the feudal despotism and created the
and funds of the estate of the said Margarita democracy of private owners.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 37

These provisions should, therefore, be given the been paid by the heirs, the heirs may, by a family
most liberal construction so that the intent of the council as shown under Spanish law, or by
framers may be fully carried out. They should not agreement between themselves, duly executed in
be straitened or narrowed but should rather be writing, apportion and divide the estate among
given that wideness and fullness of application themselves, as they may see fit, without
without which they cannot produce their most proceedings in court.
beneficial effects.
Take note that this is before the present Rules of
Standing, as we have said, at the head of the law Court. This is what the old civil procedure is talking
of administration of these Islands, they are the about regarding settlement of intestate estates
first provisions to which our attention is directed without legal proceeding. This talks about
in seeking a legal method for the division and extrajudicial settlement.
distribution of the property of deceased persons.
They are thus made prominent. And justly so. The It has been agreed also that you can have an
purpose which underlies them, as we have agreement among the parties or it is an extrajudicial
already intimated, is to put into one's hands the settlement wherein it could be in writing and they
property which belongs to him not only at the are going to divide and to agree among themselves.
earliest possible moment but also with the least
possible expense. By permitting the partition and These sections provide for the voluntary division
division without proceedings in court no time is of the whole property of the decedent without
lost and substantially all expense and waste are proceedings in court. The provisions which they
saved. This is as it should be. The State fails contain are extremely important.
wretchedly in its duty to its citizens if the
machinery furnished by it for the division and The wisdom which underlies them is apparent. It
distribution of the property of a decedent is so is the undisputed policy of every people which
cumbersome, unwieldy and expensive that a maintains the principle of private ownership of
considerable portion of the estate is absorbed in property that he who owns a thing shall not be
the process of such division. Where deprived of its possession or use except for the
administration is necessary, it ought to be most urgent and imperative reason and then only
accomplished quickly and at very small expense; so long as is necessary to make the rights which
and a system which consumes any considerable underlie those reasons effective.
portion of the property which it was designed to
distribute is a failure. It being undoubted that the Remember the concept that we have in succession,
removal of property from the possession of its once there is already the death of the decedent,
owner and its deposit in the hands of another for then the property automatically belongs to the heir.
administration is a suspension of some of his You need not delay the transfer to the heirs.
most important rights of property and is
attended with an expense sometimes entirely In this instance, the rules already sanction that the
useless and unnecessary, such procedure should parties, the heirs themselves, can already enter into
be avoided whenever and wherever possible. an extrajudicial settlement of estate.
As we have already indicated, the basis of the
liability of a surety on an administrator's bond is lt is a principle of universal acceptance which
the fault or failure of the principal. The liability of declares that one has the instant right to occupy
the principal precedes that of the surety. If and use that which he owns, and it is only in the
Velasco incurred no liability, then his surety presence of reasons of the strongest and most
incurred none. urgent nature that that principle is prevented
from accomplishing the purpose which underlies
SEC. 596. Settlement of intestate estates, without it.
legal proceedings, in certain cases. - Whatever all
the heirs of a deceased person are of lawful age The force which gave birth to this stern and
and legal capacity, and their are no debts due imperious principle is the same force which
from the intestate estate, or all the debts have

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 38

destroyed the feudal despotism and created the from PAL and other employees associations to
democracy of private owners. which the husband belong, as well as the SSS,
belong exclusively to her as the legal wife. Being
The purpose which underlies them, as we have the sole beneficiary and heir and as support
already intimated, is to put into one's hands the claim, she also the letter replies from the
property which belongs to him not only at the institution showing that she is indeed the
earliest possible moment but also with the least exclusive beneficiary of the said death benefits.
possible expense. By permitting the partition and There is nothing for the estate to determine if
division without proceedings in court no time is there is something to be administered.
lost and substantially all expense and waste are
saved. This is as it should be. The State fails Secondly, she is also saying that the savings
wretchedly in its duty to its citizens if the deposit, in the name of her deceased husband,
machinery furnished by it for the division and has been used already to defray or pay the
distribution of the property of a decedent is no funeral expenses as supported by the receipts
cumbersome, unwidely and expensive that a that she had presented in court. That the only
considerable portion of the estate is absorbed in property was left by the deceased has already
the process of such division. Where been extrajudicially settled between her and the
administration is necessary, it ought to be sister. So there is nothing more to settle or to
accomplished quickly and at very small expense; have administration proceeding.
and a system which consumes any considerable
portion of the property which it was designed to The sister, however, is saying that it is not on the
distribute is a failure. petitioner to decide what properties form part of
the estate of the deceased and to appropriate
So ku ng magkasinabot man lang ang heirs as to them for herself. She points out that this function
the division of the property, then they should have of identifying of what should be the properties
executed the extrajudicial settlement of estate. belong to the estate is vested in court which is
incharge of the intestate proceedings.
If you are going to a judicial partition in court, the
court will always tell the parties na sabutan nalang If there are indeed assets of the deceased, for
because that is the less expensive. purposes of administration, the proceeding is
necessary.

01/17/2022 | By: EJAL Issue:

Whether or not a judicial administration
JGP proceeding is necessary when the decedent dies
Pereira v. Court of Appeals intestate without leaving any debts
174 SCRA 154, June 20, 1989
Facts: Ruling:
This is a conflict between the sister of the No. Petitioner asks this Court to declare that the
deceased and the wife of the deceased. The properties specified do not belong to the estate
husband here or the decedent is a PAL of the deceased on the basis of her bare
employee. allegations as aforestated and a handful of
documents. Inasmuch as this Court is not a trier
The sister here filed an administration of facts, We cannot order an unqualified and final
proceedings wanting that she be appointed as exclusion or non-exclusion of the property
the administrator. The wife opposed this petition involved from the estate of the deceased.
for the administration filed by the sister.
The resolution of this issue is better left to the
The sister here contends that there exists no probate court before which the administration
estate of the deceased for purposes of proceedings are pending. The trial court is in the
administration. The wife is saying here that there best position to receive evidence on the
should be no administration because the benefits discordant contentions of the parties as to the

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 39

assets of the decedent’s estate, the valuations out of court, the estate should not be burdened
thereof and the rights of the transferees of some with an administration proceeding without good
of the assets, if any. The function of resolving and compelling reasons.
whether or not a certain property should be
included in the inventory or list of properties to If there are good reasons that they don’t want to go
be administered by the administrator is one to partition but they would want a more
clearly within the competence of the probate cumbersome proceedings of administration, they
court. However, the court’s determination is only can have the freedom to do so. However, they need
provisional in character, not conclusive, and is to provide a good reason.
subject to the final decision in a separate action
which may be instituted by the parties. In the instant case, is there really a good reason for
the referral of administration proceedings? NO.
Assuming, however, that there exist assets of the There were no compelling reasons for the referral of
deceased Andres de Guzman Pereira for the administration proceeding. The court did not
purposes of administration, We nonetheless find delve to the issue of who between the surviving
the administration proceedings instituted by spouse or the sister should be appointed as the
private respondent to be unnecessary as administratrix of the property of the decedent. Here,
contended by petitioner for the reasons herein there has been no reason that has been provided
below discussed. on whether or not administration proceedings is
proper. Why not?
The general rule is that when a person dies
leaving property, the same should be judicially There are only two surviving heirs, a wife of ten
administered and the competent court should months and a sister, both of age. The parties
appoint a qualified administrator, in the order admit that there are no debts of the deceased to
established in Section 6, Rule 78, in case the be paid. What is at once apparent is that these
deceased left no will, or in case he had left one, two heirs are not in good terms.
should he fail to name an executor therein.
The only conceivable reason why private
An exception to this rule is established in Section respondent seeks appointment as administratrix
1 of Rule 74. Under this exception, when all the is for her to obtain possession of the alleged
heirs are of lawful age and there are no debts due properties of the deceased for her own purposes,
from the estate, they may agree in writing to since these properties are presently in the hands
partition the property without instituting the of petitioner who supposedly disposed of them
judicial administration or applying for the fraudulently.
appointment of an administrator.
We are of the opinion that this is not a
Section 1, Rule 74 of the Revised Rules of Court, compelling reason which will necessitate a
however, does not preclude the heirs from judicial administration of the estate of the
instituting administration proceedings, even if deceased.
the estate has no debts or obligations, if they do
not desire to resort for good reasons to an While they have settled extrajudicially with the real
ordinary action for partition. While Section 1 property with respect to the benefits (proceeds
allows the heirs to divide the estate among from PAL and Employees Coop), they did not agree
themselves as they may see fit, or to resort to an to settle among that. For the wife, she is claiming
ordinary action for partition, the said provision that she is the sole beneficiary.
does not compel them to do so if they have good
reasons to take a different course of action. It To subject the estate of Andres de Guzman
should be noted that recourse to an Pereira, which does not appear to be substantial
administration proceeding even if the estate has especially since the only real property left has
no debts is sanctioned only if the heirs have good been extrajudicially settled, to an administration
reasons for not resorting to an action for proceeding for no useful purpose would only
partition. Where partition is possible, either in or

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 40

unnecessarily expose it to the risk of being and that fact if made to appear to the Regional
wasted or squandered. Trial Court having jurisdiction of the estate by the
petition of an interested person and upon
In most instances of a similar nature, the claims hearing, which shall be held not less than one (1)
of both parties as to the properties left by the month nor more than three (3) months from the
deceased may be properly ventilated in simple date of the last publication of a notice which shall
partition proceedings where the creditors, should be published once a week for three (3)
there be any, are protected in any event. consecutive weeks in a newspaper of general
circulation in the province, and after such other
The Supreme Court is saying that if pwede lang man notice to interested persons as the court may
sya ipartition, why would you go to an direct, the court may proceed summarily, without
administration proceeding? While the heirs are not the appointment of an executor or administrator,
precluded to undergo such proceedings, still, you and without delay, to grant, if proper, allowance
should provide good reason thereto. of the will, if any there be, to determine who are
the persons legally entitled to participate in the
KSMMT estate and to apportion and divide it among
AVELINO V. CA them after the payment of such debts of the
G.R. No. 115181, March 31, 2000 estate as the court shall then find to be due; and
such persons, in their own right, if they are lawful
Issue: age and legal capacity, or by their guardians or
Can there be partition if there is still a question trustees legally appointed and qualified, if
as to what will be the part of the estate? otherwise, shall thereupon be entitled to receive
and enter into the possession of the portions of
Ruling: the estate so awarded to them respectively.
No. When a person dies intestate, or, if testate,
failed to name an executor in his will or the The court shall make such order as may be just
executor so named is incompetent, or refuses the respecting the costs of the proceedings, and all
trust, or fails to furnish the bond required by the orders and judgments made or rendered in the
Rules of Court, then the decedent's estate shall course thereof shall be recorded in the office of
be judicially administered and the competent the clerk, and the order of partition or award, if it
court shall appoint a qualified administrator in involves real estate, shall be recorded in the
the order established in Section 6 of Rule 78. proper register's office.

The exceptions to this rule are found in Sections The exceptions to this rule are found in Sections 1
1 and 2 of Rule 74 which provide: and 2 of Rule 74 in which you can have an out of
court partition or a judicial partition.
Sec. 1. Extrajudicial settlement by agreement
between heirs. — If the decedent left no will and There is no partition of estate in the instant case,
no debts and the heirs are all of age or the minors however, as there is no determination yet as to what
are represented by their judicial or legal is the character or extent of the decedent's estate.
representatives duly authorized for the purpose,
the parties may, without securing letters of The heirs succeed immediately to all of the rights
administration, divide the estate among and properties of the deceased at the moment of
themselves as they see fit by means of a public the latter's death.
instrument filed in the office of the register of
deeds, and should they disagree, they may do so Section 1, Rule 74 of the Rules of Court, allows
in an ordinary action of partition. . . heirs to divide the estate among themselves
without need of delay and risks of being
Sec. 2. Summary settlement of estates of small dissipated.
value. — Whenever the gross value of the estate
of a deceased person, whether he died testate or When a person dies without leaving pending
intestate, does not exceed ten thousand pesos, obligations, his heirs are not required to submit

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 41

the property for judicial administration, nor apply agreement which belonged to whom. Each of them
for the appointment of an administrator by the has already possessed their respective shares.
court.
After the oral partition, there was construction of
The trial court, in the instant case, appropriately improvements in these particular properties and
converted the actions for letters administration into that they declared partition for purposes of
a suit for judicial partition upon the motion of the taxation. Actual possession and exercise of
respondents in this case. dominion has also been made in this particular case.

We find, however, that a complete inventory of Public instrument means notarized document. After
the estate may be done during the partition you have prepared the extrajudicial settlement of
proceedings, especially since the estate has no estate, you are going to report it to the Registry of
debts. Deeds (ROD).

It provides that in cases where the heirs disagree However, as between the parties, a public
as to the partition of the estate and no instrument is neither constitutive nor an inherent
extrajudicial settlement is possible, then an element of a contract of partition.
ordinary action for partition may be resorted to,
as in this case. Since registration serves as constructive notice to
third persons, an oral partition by the heirs is
We have held that where the more expeditious valid if no creditors are affected.
remedy of partition is available to the heirs, then
the heirs or the majority of them may not be Moreover, even the requirement of a written
compelled to submit to administration memorandum under the statute of frauds does
proceedings. not apply to partitions affected by the heirs
where no creditors are involved considering that
If there is no death, why would you still go to an such a transaction is not a conveyance of
administration proceeding if it can be done in a property resulting in change of ownership but
simple partition. merely a designation and segregation of that
part which belongs to each heir.
Remember, in partition, there are needed
requirements (legal ages, if minor dapat This is where the notarized, public document is
represented and no debts that have been left, important. If you are going to be asked by client if
property can be identified). partition thru oral form is okay? It is valid because
partition is not among those things mentioned
Lanuza, Espinas as Heirs of Espinas v. Luna under your Statute of Fraud, that is to be required
G.R. No. 229775, March 11, 2019 in writing. But, for purposes of protection and for
Issue: constructive notice to third persons, it is common
Should the partition be in a public instrument? sense that you have to do it in writing. You have to
register it to the Registry of Deeds because ROD will
Ruling: not accept it on an oral form.
Yes. Partition is the separation, division and
assignment of a thing held in common among In the instant case, no creditors are going to be
those to whom it may belong. affected. If there are no creditors, then your Rule 74
also welcomes oral partition.
It may be effected extrajudicially by the heirs
themselves through a public instrument filed Regardless of whether a parol partition or
before the register of deeds. agreement to partition is valid and enforceable at
law, equity will in proper cases, where the parol
In the instant case, there is an oral partition of the partition has actually been consummated by the
estate among them. Each one of them had an taking of possession in severalty and the exercise
of ownership by the parties of the respective

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 42

portions set off to each, recognize and enforce that you are a co-owner then what is your legal
such parol partition and the rights of the parties standing in filing that partition case?
thereunder.
The second thing you have to establish is the
Thus, it has been held or stated in a number of division itself. How are you going to divide the
cases involving an oral partition under which the property?
parties went into possession, exercised acts of
ownership, or otherwise partly performed the Rebusquillo v. Spouses Gualvez
partition agreement, that equity will confirm such G.R. No. 204029, June 4, 2014
partition and in a proper case decree title in
accordance with the possession in severalty. Doctrine
An Affidavit of Self-Adjudication is only proper
This case only manifests that oral partition is valid when the affiant is the Sole Heir of the Decedent.
under our laws.
Ruling:
HEIRS OF MORALES V. AGUSTIN As admitted by respondents, Avelina was not the
G.R. No. 224849, June 06, 2018 sole heir of Eulalio. In fact, as admitted by
respondents, petitioner Salvador is one of the co-
Doctrine heirs by right of representation of his mother.
The ordinary action for partition therefore is Without a doubt, Avelina had perjured herself
meant to take the place of the special proceeding when she declared in the affidavit that she is "the
on the settlement of the estate. The reason is only daughter and sole heir of spouses EULALIO
that, if the deceased dies without pending ABARIENTOS AND VICTORIA VILLAREAL."
obligations, there is no necessity for the
appointment of an administrator to administer The falsity of this claim renders her act of
the estate for the heirs and the creditors, much adjudicating to herself the inheritance left by her
less, the necessity to deprive the real owners of father invalid. The RTC did not, therefore, err in
their possession to which they are immediately granting Avelina’s prayer to declare the affidavit
entitled. null and void and so correct the wrong she has
committed.
Issue:
Is an administration proceeding for the If you are not the only heir, it is not the Affidavit of
settlement of the estate of the deceased a Self-Adjudication but rather the Extrajudicial
condition precedent before any partition of the Settlement of the Estate.
estate and any distribution thereof to the heirs
could be affected? There are clients that will come to your office and
ask if it will be okay not to declare other heirs kay
Ruling: lisod magpapirma sa ilaha. This is not proper. You
No. Generally, an action for partition may be seen should not advise your clients as to that because it
to simultaneously present two issues: first, there is very risky. The client is at risk to be subjected to a
is the issue of whether the plaintiff is indeed a co- possible opening up of litigation. He is susceptible
owner of the property sought to be partitioned; to suit.
and second, assuming that the plaintiff
successfully hurdles the first issue, there is the CRUZ V. CRUZ
secondary issue of how the property is to be G.R. No. 211153, February 28, 2018
divided between the plaintiff and defendants, i.e.,
what portion should go to which co-owner. Doctrine
No extrajudicial settlement shall be binding upon
You have to prove your capacity. Are you filing as a any person who has not participated therein or
real party in interest? For you to be a real party in had no notice thereof. The action to annul an
interest, you have to be a co-owner of the property invalid deed of extrajudicial partition does not
sought to be partitioned. If you cannot establish prescribe.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 43

Issue: On the issue of prescription, the Court agrees with

Is the Extrajudicial settlement, written in a petitioners that the present action has not been
language that is not understood by one of her prescribed in so far as it seeks to annul the
co-heir, valid” extrajudicial settlement of the estate. Contrary to
the ruling of the CA the prescriptive period of 2
Ruling: years provided in Section 1 Rule 74 of the Rules of
No. The extrajudicial settlement is void. Court reckoned from the execution of the
Concepcion was effectively deprived of her extrajudicial settlement finds no application to
inheritance. petitioners Eutropia, Victoria and Douglas, who
were deprived of their lawful participation in the
We all know that in an extrajudicial partition, the subject estate.
ROD will cancel the previous title of the
property. There will be an issuance of a new title by THE ROMAN CATHOLIC BISHOP OF
virtue of the extrajudicial settlement of estate. Either TUGUEGARAO V. PRUDENCIO
the heirs waive the same to a particular person as G.R. No. 187942, September 7, 2016
co-heir, that he will own the entire property which
is allowed under the law. If it is already transferred Doctrine
then there will be annotation under Rule 74 Sec 4. It In all execution of Extrajudicial Settlement of the
will annotate parties should report within two years estate of the deceased, all heirs of the deceased
from the execution of the extrajudicial settlement should have participated
estate
Issue:
Also, if you have signed the settlement without the Whether or not the action for partition with
knowing of the language to which it is executed reconveyance filed by respondents-appellees
then it is void. against petitioner should prosper

The present action involves a situation where one Ruling:

heir was able - through the expedient of an Yes. As the partition was a total nullity and did
extrajudicial settlement that was written in a not affect the excluded heirs, it was not correct
language that is not understood by one of her for the trial court to hold that their right to
co-heirs - to secure a share in the estate of her challenge the partition had prescribed after two
parents that was greater than that of her siblings, years from its execution.
in violation of the principle in succession that
heirs should inherit in equal shares. The partition in the present case was invalid
because it excluded six of the nine heirs who were
In the instant case, Concepcion, as an illiterate entitled to equal shares in the partitioned
person, was able to sign an extrajudicial settlement property. Under the rule "no extrajudicial
in the English language which allocated to another settlement shall be binding upon any person who
sibling a larger area or two lots. Concepcion has not participated therein or had no notice
executed this one in favor of one of her siblings, thereof."
Antonia.
Again, no extrajudicial settlement of the estate
Issue: binding upon any person who has not participated
Does the action for the declaration of nullity of thereon who had no notice thereof.
the defective deed of extrajudicial settlement
prescribe? SPS. BENATIRO V. HEIRS OF CUYOS
G.R. No. 161220, July 30, 2008
Ruling:
The deed of extrajudicial partition in the case at Doctrine
bar being invalid, the action to have it annulled The publication of the settlement does not
does not prescribe. constitute constructive notice to the heirs who

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 44

had no knowledge or did not take part in it

because the same was notice after the fact of Following Rule 74, these extrajudicial settlements
execution. do not bind respondents, and the partition made
without their knowledge and consent is invalid
Issue: insofar as they are concerned.
Whether or not the said agreement is binding to
the heirs who did not consent to the Agreement
01/24/2022 | By: JGP
Ruling:
No. The procedure outlined in Section 1 of Rule RULE 75
74 is an ex parte proceeding. Production of Will
Allowance of Will Necessary
The rule plainly states, however, that persons who
do not participate or had no notice of an If there is a will and testament, under Succession, it
extrajudicial settlement will not be bound has to be probated. When you say probate, you are
thereby. going to provide if the will is really authentic, or if it
complied with the formalities required or if the
It contemplates a notice that has been sent out testator is of sound mind.
or issued before any deed of settlement and/or
partition is agreed upon (i.e., a notice calling all If there is a will, even if you are the only child or the
interested parties to participate in the said deed only heir, there is a necessity to probate.
of extrajudicial settlement and partition), and not
after such an agreement has already been Probate or Allowance of Wills
executed as what happened in the instant case It is the act of proving in court a document
with the publication of the first deed of pruproting to be the last will and testament of a
extrajudicial settlement among heirs. certain deceased person for the purpose of its
official recognition, registration and carrying out its
In your other subject, if there is already a publication provision in so far as they are in accordance with
for the application of Lost title or for the issuance of law.
Duplicate Title, there is constructive notice that both
parties have already informed. This does not work After the probate, then the court will now allow the
in a partition case properties to be distributed. A will can either be
notarial or holographic. It is a free act in which a
When you say ex parte proceeding, wala ni stay person disposes his properties and which would be
kalaban, you can directly present ex parte evidence. effective upon his death.

The publication of the settlement does not This is why a will must be probated because you
constitute constructive notice to the heirs who have to strictly follow what are the wishes of the
had no knowledge or did not take part in it testator. It cannot be subject to compromise which
because the same was notice after the fact of would defeat the purpose of making a last will and
execution. testament.

The requirement of publication is geared for the

protection of creditors and was never intended to
deprive heirs of their lawful participation in the
decedent's estate.

In this connection, the records of the present case

confirm that respondents never signed either of
the settlement documents, having discovered
their existence only shortly before the filing of the
present complaint.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 45

Is allowance of a will necessary? written by him proficiently. He disposed of his

Yes, the allowance of a will is necessary. Section 1 of estate consisting of a parcel of land in Makati City
Rule 75 is explicit on this. Probate of the will is and cash deposit at the City Bank in the sum of Php
mandatory. It is up to the court now to determine 300 Million. He bequeathed Php 50 Million each to
if indeed it is to be allowed. his three sons and Php 150 Million to Susan, his
favorite daughter-in-law. He named his best friend,
Section 1. Allowance necessary. Conclusive as to Cancio Vidal, as executor of the will without bond.
execution. xxx

No will shall pass either real or personal estate 4. Can the widow and her children settle
unless it is proved and allowed in the proper extrajudicially among themselves the estate of the
court. Subject to the right of appeal, such deceased?
allowance of the will shall be conclusive as to its
due execution. A:
No. The widow and her children cannot settle
Before you can carry out the provisions of the will, extrajudicially among themselves the estate of the
you have to probate the will first because you must deceased without the will being probated. Section
authenticate and the court will determine if the will 1 of Rule 75 of the Rules of Court expressly provides
was duly executed. that: “No will shall pass either real or personal estate
unless it is proved and allowed in the proper court.”
Article 838 of the Civil code states that:
BAR 2006
No will shall pass either real or personal property Can the widow and her children initiate a separate
unless it is proved and allowed in accordance petition for partition of the estate pending the
with the Rules of Court. This Court has probate of the last will and testament by the court?
interpreted this provision to mean, until admitted
to probate, a will has no effect whatever and no A:
right can be claimed thereunder. (Pascual v. CA, Pending the probate of the last will, the widow and
G.R. No. 115925, August 15, 2003) her children cannot initiate a separate petition for
partition of the estate. The Rule provides that the
BAR 2007 will must first be probated before the property may
The heirs of F agree among themselves that they be settled or partitioned.
will honor the division of H’s estate as indicated in
her Last Will and Testament. To avoid the expense BAR 2005
of going to court in a Petition of the Will, can they After Lulu’s death, her heirs brought her last will and
instead execute an extrajudicial settlement testament to a lawyer to obtain their respective
agreement among themselves? Explain briefly. shares in the estate. The lawyer prepared a deed of
partition distributing Lulu’s estate in accordance
A: with the terms of her will. Is the act of the lawyer
It is submitted that the heirs cannot extrajudicially correct? Why?
enter into any settlement without the will being
probated. The law expreslly provides that no will A:
shall pass either real or personal property unless it It is submitted that the act of the lawyer is not
is proved and allowed in court. The will must first be correct. The Rules of Court is clear on the matter.
probated before parties may enter into any No will shall pass either real or personal estate
extrajudicial agreement. unless it is proved and allowed in the proper court.

BAR 2006 BAR 1992

Sergio Punzalan, Filipino, 50 years old, married, and The last will and testament of the deceased was
residing at Ayala Alabang Village, Muntinlupa City, presented in the proceeding to settle his estate and
of sound and disposing mind, executed a last will in due course hearing was set for the probate of the
and testament in English, a language spoken and will. Before evidence thereon could be presented,

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 46

the legal heirs of the deceased, his widow and his Notarial Will
two surviving daughters, filed a manifestation that Art. 805. Every will, other than a holographic will,
the probate of the will would no longer be must be subscribed at the end thereof by the
necessary since they had already agreed to divide testator himself or by the testator’s name written
the net estate differently in accordance with a by some other person in his presence, and by his
project of partition attached to their manifestation. express direction, and attested and subscribed by
Consequently, they moved that the project of three or more credible witnesses in the presence
partition be approved and forthwith implemented of the testator and of one another.
without probate of the decedent's will. Should the
court grant the heirs' motion and accordingly The testator or the person requested by him to
approve their project of partition without probate write his name and the instrumental witnesses of
of the will? Explain. the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
A: margin, and all the pages shall be numbered
No, the court cannot approve a project of partition correlatively in letters placed on the upper part of
without the probate of the will because under the each page.
Rules of Court, “No will shall pass either real or
personal property unless it is proved and allowed in The attestation shall state the number of pages
the proper court.” used upon which the will is written, and the fact
that the testator signed the will and every page
Is a decree of probate conclusive as to its due thereof, or caused some other person to write his
execution? name, under his express direction, in the
Yes, such allowance of the will shall be conclusive as presence of the instrumental witnesses, and that
to its due execustion as stated in Section 1 of Rule the latter witnessed and signed the will and all
75. A decree of probate is conclusive with respect to the pages thereof in the presence of the testator
the due execution of the will and it cannot be and of one another.
impugned on any ground except that of fraud, in
any separate or independent action or proceeding. If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
Meaning of Due Execution them.
• That the will was executed strictly in
accordance with the formalities required by Art. 806. Every will must be acknowledged
law before a notary public by the testator and the
• That the testator was of sound and desposing witnesses. The notary public shall not be required
mind at the time of its execution to retain a copy of the will, or file another with
• That there was no vitiation of consent the Office of the Clerk of Court.
through duress, fear or threats
• That the signature of the testator is genuine The allowance of the will precludes any interested
person from questioning the due execution of the
When you say due execution is conclusively will but not the intrinsic validity of its testamentary
presumed here, it means that the extrinsic validity provisions. Matters relating to intrinsic validity of a
of the will is passed upon by the probate court. Only will are governed by substantive law on inheritance
limited to extrinsic validity because if it is intrinsic, and partition.
the probate court has no jurisdiction to pass upon
the same. So the probate court has no jurisdiction to
determine what is the substantive law on the
The exception is in the case of Nuguid v. Nuguid matter.
wherein practical considerations demanded that
intrinsic validity can also be passed upon by the May a probate court pass upon the intrinsic
probate court. validity of the will?
No, in a special proceeding for the probate of a will,
the issue by and large is restricted to the extrinsic

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 47

validity of the will, e.g. whether the testator, being execution includes a finding that the will is genuine
of sound mind, freely executed the will in and not a forgery. Thus, the due execution of the
accordance with the formalities prescribed by law. will cannot again be questioned in subsequent
As a rule, the question of ownership is an proceeding, not even in a criminal action for forgery
extraneous matter which the probate court cannot of the will.
resolve with finality.
Due execution again, there is a finding, diba kung
BAR 2010 muingon ta na it is conclusive, the last will has been
Czarina died single. She left all her properties by will duly executed, then it is genuine and executed
to her friend Duqueza. In the will, Czarina stated that within the formalities of the law and the testator was
she did not recognize Marco as an adopted son of sound mind.
because of his disrespectful conduct towards her.
Is the doctrine of estoppel applicable in probate
Duqueza soon instituted an action for probate of proceedings? No.
Czarina's will. Marco, on the other hand, instituted • The presentation and probate of a will are
intestate proceedings. Both actions were requirements of public policy, being primarily
consolidated before the RTC of Pasig. On motion of designed to protector the testator’s, expressed
Marco, Duqueza's petition was ordered dismissed wishes, which are entitled to respect as a
on the ground that the will is void for depriving him consequence of the decedent’s ownership and
of his legitime. Argue for Duqueza. (5%) right of disposition within legal limits.
• Evidence of it is the duty imposed on a
A: custodian of a will to deliver the same to the
The dismissal of Duqueza's action for probate is not Court, and the fine and imprisonment
valid. The probate court may only pass upon the prescribed for its violation (Revised Rule 75)
extrinsic validity of the will, e.g. whether the testator, • It would be a non sequitur to allow public
being of sound mind, freely executed the will in policy to be evaded on the pretext of estoppel.
accordance with the formalities prescribed by law.
The issue as to whether the will is void because an Issues that may be brought before the probate
adopted child cannot be deprived of his legitime court
involves intrinsic validity of the will. It is a settled o Inclusion of the property in the inventory
rule that probate court is a court of limited o Determination of who are the heirs of the
jurisdiction. As such, it may only determine and rule decedent
upon issues that relate to settlement of the estate o Validity of waiver of hereditary rights
of deceased person such as the administration, o Status of each heir
liquidation and distribution of the estate. Matters o All other matters incidental to the
relating to intrinsic validity of a will are governed by administration, settlement and distribution of
substantive law on inheritance and partition. the estate

BAR 1999 BAR 2011

A’s will was allowed by the Court. No appeal was Apart from the case for the settlement of her
taken from its allowance. Thereafter, Y, who was parents’ estate, Betty filed an action against her
interested in the estate of A, discovered that the will sister, Sigma, for reconveyance of the title to a piece
was not genuine because A’s signature was forged of land. Betty claimed that Sigma forged the
by X. A criminal action for forgery was instituted signatures of their late parents to make it appear
against X. May the due execution of the will be that they sold the land to her when they did not,
validly questioned in such criminal action? thus prejudicing Betty’s legitime. Sigma moved to
dismiss the action on the ground that the dispute
A: should be resolved in the estate proceedings. Is
It is submitted that the due execution of the will Sigma correct?
cannot be validly questioned in such criminal action A) Yes, questions of collation should be
since allowance of the will from which no appeal resolved in the estate proceedings, not in a
was taken is conclusive as to its due execution. Due separate civil case

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 48

B) No, since questions of ownership of

property cannot be resolved in the estate A:
proceedings No, the judgment is incorrect since the court has no
C) Yes, in the sense that Betty needs to wait jurisdiction to adjudicate title to the properties
until the estate case has been terminated claimed to be part of the estate of the deceased and
D) No, the filing of the separate action is by third parties. (Cuison v. Ramolete, 129 SCRA 495).
proper; but the estate proceeding must be However, it may make a provisional determination
suspended meantime for the purpose of including the same in the
inventory of the estate. (Bolisay v. Alcid, 85 SCRA
A: 213)
We all know that collation is a matter that can be
resolved in the estate proceedings. It is collation That is why in the cases, there is always a caveat by
when you collate those properties sold to your the courts that this is only provisional, that the
sister. claimants can file a separate case to determine the
ownership and this is only for the purposes of
A probate court is a court of limited jurisdiction. As including the said property for inventory.
such, it may only determine and rule upon issues
that relate to settlement of estate of deceased Bar 2011
person such as the administration, liquidation and In proceedings for the settlement of the estate of
distribution of the estate. deceased persons, the court in which the action is
pending may properly
GR: Probate court cannot decide a question of title A) pass upon question of ownership of a real
of ownership property in the name of the deceased but
XPNs (provided by jurisprudence): claimed by a stranger.
1. All heirs consent; 3P interests are not B) pass upon with the consent of all the heirs
prejudiced the issue of ownership of estate asset,
2. Provisional manner – determination of contested by an heir if no third person is
inclusion in the inventory affected.
C) rule on a claim by one of the heirs that an
BAR 1990 estate asset was held in trust for him by the
Sammy Magdalo, executor of the estate of the deceased.
deceased Rolando Aceron, submitted an inventory D) rescind a contract of lease entered into by
which includes a ten-hectare lot occupied by Carlos the deceased before death on the ground
Domingo. Domingo opposed inclusion in the of contractual breach by the lessee.
inventory of the property claiming ownership
thereof. The probate court directed the executor If ang nagquestion sa ownership kay co-heir and
and Domingo to present evidence of ownership. walay third person is affected, and they all
Domingo refused to participate in the proceedings, consented na ipadecide nila ang probate court na
asserting lack of jurisdiction on the part of the magdetermine sa ownership, then the probate
probate court. The probate court nonetheless court can do so, as an exception.
proceeded with the hearing, and rendered
judgment declaring the deceased to be the owner Jurisdictional or Procedural?
of the questioned property. The probate court Equally important is the rule that the determination
directed Domingo to vacate' the premises. of whether or not a particular matter should be
resolved by the CFI in the exercise of its general
Is the said judgment correct? Explain your answer. jurisdiction or of its limited jurisdiction as a special
court (probate, land registration, etc.) is in reality
(In this case, there is a third person who is claiming not a jurisdictional question. It is in essence a
that he is the owner of this lot which is included in procedural question involving a mode of practice
the inventory of the decedent. Can the probate “which may br waived.”
court direct this person, claiming to be the owner,
to vacate?)

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 49

Such waiver introduces the exception to the general probate proceedings. There is no estoppel by laches
rule that while the probate court exercises limited because the failure of the presentation is not failure
jurisdiction, it may settle questions relation to of probate proceedings.
ownership when the claimant and all other parties
having legal interest in the property consent, BAR 2006
expressly or impliedly, to the submission of the Sergio Punzalan, Filipino, 50 years old, married, and
question to the probate court for adjugment. residing at Ayala Alabang Village, Muntinlupa City ,
of sound and disposing mind, executed a last will
Exclusionary Rule and testament in English, a language spoken and
When a probate court first take cognizance and written by him proficiently. He disposed of his
jurisdiction over the settlement of the estate of a estate consisting of a parcel of land in Makati City
deceased person, it shall continue to exercise and cash deposit at the City Bank in the sum of P300
jurisdiction over the same to the exclusion of other Million. He bequeathed P50 Million each to his 3
courts. sons and P150 Million to his wife. He devised apiece
of land worth P100 Million to Susan, his favorite
Upon its assumption as a probate court, it cannot daughter-in-Iaw. He named his best friend, Cancio
be divested of such jurisdiction by the subsequent Vidal, as executor of the will without bond.
acts of the parties such as filing extrajudicial
partition or filing another petition in another court. Supposing the original copy of the last will and
testament was lost, can Cancio compel Susan to
Notatial will found to be defective – will its produce a copy in her possession to be submitted
probate be denied? Yes. to the probate court?

Section 2. Custodian of will to deliver. – The A:

person who has custody of a will shall, within Yes. Section 2, rule 75 of the ROC expressly provides
twenty (2) days after he knows of the death of the that the person who has custody of the will shall
testator, deliver the will to the court having deliver the same to the court having jurisdiction.
jurisdiction, or to the executor named in the will. Considering the fact that Susan has a copy of the
will in her possession, she, therefore, can be
Remember that the custodian is different from the compelled to submit the same to the court.
executor. Custodian refers to a person who receives
the will with knowledge or under such Section 3. Executor to present will and accept or
circumstances that he ought to have known that he refuse trust. — A person named as executor in a
was receiving the custody of the will. Usually, lawyer will shall, within twenty (20) days after he knows
ni siya. of the death of the testate, or within twenty (20)
days after he knows that he is named executor if
A custodian has to undertake that he is going to he obtained such knowledge after the death of
exercise diligence in inquiring into the testator’s the testator, present such will to the court having
death. jurisdiction, unless the will has reached the court
in any other manner, and shall, within such
Mere possession of the will does not make the period, signify to the court in writing his
holder a custodian. A custodian is chosen by the acceptance of the trust or his refusal to accept it.
testator in advance and s/he is entrusted with a
custody by mutual agreement. BAR 2006
Sergio Punzalan, Filipino, 50 years old, married, and
The reason behind this (Section 2) obligation to residing at Ayala Alabang Village, Muntinlupa City,
deliver the will is to ensure that the will is discovered of sound and disposing mind, executed a last will
and to discourage the last will and testament. and testament in English, a language spoken and
written by him proficiently. He disposed of his
For example, failure to present within 20 days, wala estate consisting of a parcel of land in Makati City
niya na deliver, does this mean that there is already and cash deposit at the City Bank in the sum of P300
failure for the probate of the will? There can still be Million. He bequeathed P50 Million each to his 3

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 50

sons and P150 Million to his wife. He devised apiece obligation involved here—the production of the
of land worth P100 Million to Susan, his favorite original holographic will—is in the nature of a
daughter-in-Iaw. He named his best friend, Cancio public or a private duty, rules that the remedy of
Vidal, as executor of the will without bond. mandamus cannot be availed of by respondent
Lee because there lies another plain, speedy and
Is Cancio Vidal, after learning of Sergio's death, adequate remedy in the ordinary course of law. Let
obliged to file with the proper court a petition for it be noted that respondent has a photocopy of
probate of the latter's last will and testament? the will and that he seeks the production of the
original for purposes of probate. The Rules of
A: Court, however, does not prevent him from
Yes, Section 3, Rule 74 of the ROC is explicit. A instituting probate proceedings for the
person named as executor in a will shall, within 20 allowance of the will whether the same is in his
days after he knows of the death of the testator, or possession or not.
within 20 days after he knows that he is named
executor if he obtained such knowledge after the
death of the testator, present such will to the court 02/14/2022 | By: KSMMT
having jurisdiction. Considering that Cancio Vidal is
named as executor in the will, he is, therefore RULE 76
obliged to file a petition for probate of the will. ALLOWANCE OR DISALLOWANCE OF WILL

Section 4. Custodian and executor subject to fine Probate of a will – an act of proving in court a
for neglect. — A person who neglects any of the document purporting to be the last will and
duties required in the two last preceding sections testament of a deceased person in order that it may
without excused satisfactory to the court shall be be officially recognized, registered and its
fined not exceeding two thousand pesos. provisions carried insofar as they are in accordance
with laws.
Writ of Mandamus
Mandamus means “we command.” It is an order This is the process wherein you show to the court
from a superior court to inferior court/tribunal or that this Last Will and Testament has been made in
public authority. accordance with the formalities required and that
there is soundness of the mind by the testator.
Note: Writ of mandamus cannot be granted against
private individuals or organizations Normally, this is constituted after the death of the
testator. “normally” because you can prove this
Moreover, an important principle followed in the while the testator has not yet died. Pwede that
issuance of the writ is that there should be no he/she can have his/her Will be probated in court
plain, speecy and adequare remedy in the under our jurisdiction.
ordinary course of law other than the remedy of
mandamus being invoked. When can probate be filed?
- At any time
If there are other remedies that are available, then - It is not subject to the statute of limitations
mandamus will not lie. and does not prescribe.
- It is required by public policy.
In other words, mandamus can be issued only in
cases where the usual modes of procedure and Anytime siya. For instance, it will be discovered na
forms of remedy are powerless to afford relief. more than 2 years already or more than 1 year na
dira pa ninyo na-discover ang Last Will and
Uy Kiao Eng v. Lee Testament so there is no statute of limitations. The
G.R. No. 176831, January 15, 2010 action for the probate of a will does not prescribe.
Why? Because it is required by public policy that if
In the instant case, the Court, without there is a Last Will and Testament, then, it has to be
unnecessarily ascertaining whether the

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 51

probated. You are going to prove it in court that this himself asks for the allowance of the will, he may be
is the Last Will and Testament of the testator. acting under duress or undue influence, but these
are rare cases.
As you all know, in Succession, testacy is favored
over intestacy. After a will has been probated during the lifetime of
the testator, it does not necessarily mean that he
Who may petition for allowance? cannot alter or revoke the same before his death.
Section 1. Who may petition for the allowance of Should he make a new will, it would also be
will. — Any executor, devisee, or legatee named allowable on his petition, and if he should die before
in a will, or any other person interested in the he has had a chance to present such petition, the
estate, may, at any time after the death of the ordinary probate proceeding after the testator's
testator, petition the court having jurisdiction to death would be in order.
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.

These people can file after the death of the testator.

Who is this “person interested in the estate”?

They are the heirs or the creditors who have a claim
against the estate.

Section 2. Contents of petition. — A petition for

The second paragraph of Section 1 provides when
the allowance of a will must show, so far as
can the testator file the petition for the allowance of
known to the petitioner:
the Will.
(a) The jurisdictional facts;
(b) The names, ages, and residences of the
The Supreme Court, in one case, noted that it is
heirs, legatees, and devisees of the
better that the probate of the Last Will and
testator or decedent;
Testament is going to be done during the lifetime
(c) The probable value and character of the
of the testators because the Court can look into the
property of the estate;
demeanor of the testator if he/she is of sound mind.
(d) The name of the person for whom letters
are prayed;
RATIONALE:
(e) If the will has not been delivered to the
Most of the cases that reach the courts involve
court, the name of the person having
either the testamentary capacity of the testator or
custody of it. But no defect in the petition
the formalities adopted in the execution of wills.
shall render void the allowance of the
There are relatively few cases concerning the
will, or the issuance of letters
intrinsic validity of testamentary dispositions. It is
testamentary or of administration with
far easier for the courts to determine the mental
the will annexed.
condition of a testator during his lifetime than after
his death, Fraud, intimidation and undue influence
Take note that the filing fee will be based on the
are minimized. Furthermore, if a will does not
value of the estate. So, the court requires the
comply with the requirements prescribed by law,
probable value and character of the property,
the same may be corrected at once. The probate
maybe through tax declarations.
during the testator's life, therefore, will lessen the
number of contest upon wills. Once a will is
probated during the lifetime of the testator, the
only questions that may remain for the courts to
decide after the testator's death will refer to the
intrinsic validity of the testamentary dispositions. It
is possible, of course, that even when the testator

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 52

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 least (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.

ALABAN V. CA
G.R. No. 156021, September 23, 2005

Facts:
Respondent Francisco Provido filed a petition for
the probate of the Last Will and Testament of the
late Soledad Provido Elevencionado alleging that
he was the heir of the decedent and executor of
the will. Regional Trial Court (RTC) in Iloilo
allowed the probate of the will and directed the
issuance of letters testamentary to respondent.
Thereafter, herein petitioners filed a motion for
the reopening of the probate proceedings and
filed an opposition to the allowance of the will
claiming that they are the intestate heirs of the
decedent. RTC issued an Order denying
Publication petitioners’ motion for being unmeritorious.
Section 3. Court to appoint time for proving will. Petitioners filed a petition with an application for
Notice thereof to be published. — When a will is preliminary injunction with the Court of Appeals
delivered to, or a petition for the allowance of a (CA) but the latter dismissed it. It found that there
will is filed in, the court having jurisdiction, such was no showing that petitioners failed to avail of
court shall fix a time and place for proving the will or resort to the ordinary remedies of new trial,
when all concerned may appear to contest the appeal, petition for relief from judgment, or other
allowance thereof, and shall cause notice of such appropriate remedies through no fault of their
time and place to be published three (3) weeks own. Petitioners sought reconsideration of the
successively, previous to the time appointed, in a Resolution, but the same was denied by the CA
newspaper of general circulation in the province. for lack of merit. Hence, the petition.
But no newspaper publication shall be made
where the petition for probate has been filed by Issue:
the testator himself. Whether or not the proper remedy is an
annulment of judgment
Section 4. Heirs, devisees, legatees, and executors Ruling:
to be notified by mail or personally. — The court No. Section 37 of the Rules of Court allows an
shall also cause copies of the notice of the time aggrieved party to file a motion for new trial on
and place fixed for proving the will to be the ground of fraud, accident, mistake, or
addressed to the designated or other known excusable negligence. The same Rule permits the
heirs, legatees, and devisees of the testator filing of a motion for reconsideration on the
resident in the Philippines at their places of grounds of excessive award of damages,
residence, and deposited in the post office with insufficiency of evidence to justify the decision or
the postage thereon prepaid at least twenty (20) final order, or that the decision or final order is
days before the hearing, if such places of contrary to law.
residence be known. A copy of the notice must in
like manner be mailed to the person named as

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 53

Meanwhile, a petition for relief from judgment jurisdiction or denial of due process. A person
under Section 3 of Rule 38 is resorted to when a need not be a party to the judgment sought to
judgment or final order is entered, or any other be annulled, and it is only essential that he can
proceeding is thereafter taken, against a party in prove his allegation that the judgment was
any court through fraud, accident, mistake, or obtained by the use of fraud and collusion and
excusable negligence. he would be adversely affected thereby.
A motion for new trial or reconsideration and a
petition for relief from judgment are remedies An action to annul a final judgment on the
available only to parties in the proceedings where ground of fraud lies only if the fraud is extrinsic
the assailed judgment is rendered. or collateral in character. Fraud is regarded as
In fact, it has been held that a person who was extrinsic where it prevents a party from having a
never a party to the case, or even summoned to trial or from presenting his entire case to the
appear therein, cannot avail of a petition for relief court, or where it operates upon matters
from judgment. pertaining not to the judgment itself but to the
Petitioners in this case are mistaken in asserting manner in which it is procured. The overriding
that they are not or have not become parties to consideration when extrinsic fraud is alleged is
the probate proceedings. A proceeding for the that the fraudulent scheme of the prevailing
probate of a will is one in rem, such that with the litigant prevented a party from having his day in
corresponding publication of the petition the court.
court’s jurisdiction extends to all persons
interested in said will or in the settlement of the According to the Rules, notice is required to be
estate of the decedent. As parties to the probate personally given to known heirs, legatees, and
proceedings, petitioners could have validly devisees of the testator. A perusal of the will shows
availed of the remedies of motion for new trial or that respondent was instituted as the sole heir of
reconsideration and petition for relief from the decedent. Petitioners, as nephews and nieces of
judgment. In fact, petitioners filed a motion to the decedent, are neither compulsory nor testate
reopen, which is essentially a motion for new trial, heirs who are entitled to be notified of the probate
with petitioners praying for the reopening of the proceedings under the Rules. Respondent had no
case and the setting of further proceedings. legal obligation to mention petitioners in the
However, the motion was denied for having been petition for probate, or to personally notify them of
filed out of time, long after the Decision became the same.
final and executory. Conceding that petitioners
became aware of the Decision after it had Q: Is personal notice under Rule 76, Section 4(notice
become final, they could have still filed a petition of time and place of probate proceedings) a
for relief from judgment after the denial of their Jurisdictional Requirement in Testate or Intestate
motion to reopen. For failure to make use Settlement of a Deceased’s Estate?
without sufficient justification of the said
remedies available to them, petitioners could no A: No, the personal notice to the heirs is not a
longer resort to a petition for annulment of jurisdictional requirement in the settlement of the
judgment; otherwise, they would benefit from estate of the deceased persons. A testate or
their own inaction or negligence. intestate settlement of a deceased’s estate is a
An action for annulment of judgment is a remedy proceeding in rem, such that publication under
in law independent of the case where the Section 3 of the same rules vests the Court with
judgment sought to be annulled was rendered.[42] jurisdiction over all persons who are interested
The purpose of such action is to have the final therein.
and executory judgment set aside so that there
will be a renewal of litigation. It is resorted to in Section 5. Proof at hearing. What sufficient in
cases where the ordinary remedies of new trial, absence of contest. — At the hearing compliance
appeal, petition for relief from judgment, or other with the provisions of the last two preceding
appropriate remedies are no longer available sections must be shown before the introduction
through no fault of the petitioner, and is based of testimony in support of the will. All such
on only two grounds: extrinsic fraud, and lack of testimony shall be taken under oath and reduced

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 54

to writing. It no person appears to contest the resides in the province, but that the deposition of
allowance of the will, the court may grant one or more of them can be taken elsewhere, the
allowance thereof on the testimony of one of the court may, on motion, direct it to be taken, and
subscribing witnesses only, if such witness testify may authorize a photographic copy of the will to
that the will was executed as is required by law. be made and to be presented to the witness on
his examination, who may be asked the same
In the case of a holographic will, it shall be questions with respect to it, and to the
necessary that at least one witness who knows handwriting of the testator and others, as would
the handwriting and signature of the testator be pertinent and competent if the original will
explicitly declare that the will and the signature were present.
are in the handwriting of the testator. In the
absence of any such competent witness, and if Section 8. Proof when witnesses dead or insane
the court deem it necessary, expert testimony or do not reside in the Philippines. — If the
may be resorted to. appears at the time fixed for the hearing that the
subscribing witnesses are dead or insane, or that
none of them resides in the Philippines, the court
may admit the testimony of other witnesses to
prove the sanity of the testator, and the due
execution of the will; and as evidence of the
execution of the will, it may admit proof of the
handwriting of the testator and of the
subscribing witnesses, or of any of them.

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;
BAR 1999 (c) If it was executed under duress, or the
Q: What are the requisites in order that a lost or influence of fear, or threats;
destroyed will may be allowed? (d) If it was procured by undue and
improper pressure and influence, on the
Suggested Answer: part of the beneficiary, or of some other
person for his benefit;
In order that a lost or destroyed will may be allowed, (e) If the signature of the testator was
the following must be, in a subsequent proceeding, procured by fraud or trick, and he did not
complied with: intend that the instrument should be his
1. Execution and validity of the will must be will at the time of fixing his signature
established; thereto.
2. The will must have been in existence at the
time of the death of the testator, or shown BAR 2011
to have been fraudulently or accidentally Q: Which of the following is sufficient to disallow a
destroyed in the lifetime of the testator will on the ground of mistake?
without his knowledge
3. The provisions are clearly and distinctly a. An error in the description of the land
proved by at least 2 credible witnesses. devised in the will.
b. The inclusion for distribution of the land
Section 7. Proof when witnesses do not reside in devised in the will.
province. — If it appears at the time fixed for the c. The testator intended a donation inter
hearing that none of the subscribing witnesses vivos but unwittingly executed a will.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 55

d. An error in the name of the person If a holographic will is contested, the same shall
nominated as executor. be allowed if at least three (3) witnesses who
know the handwriting of the testator explicitly
Section 10. Contestant to file grounds of contest. declare that the will and the signature are in the
— Anyone appearing to contest the will must handwriting of the testator; in the absence of any
state in writing his grounds for opposing its competent witnesses, and if the court deem it
allowance, and serve a copy thereof on the necessary, expert testimony may be resorted to.
petitioner and other parties interested in the
estate. Section 12. Proof where testator petitions for
allowance of holographic will. — Where the
BAR 2022 testator himself petitions for the probate of his
holographic will and no contest is filed, the fact
Q: May an order denying the probate of a will still that the affirms that the holographic will and the
be overturned after the period to appeal therefrom signature are in his own handwriting, shall be
has lapsed? Why? sufficient evidence of the genuineness and due
execution thereof. If the holographic will is
A: Yes, an order denying the probate of a will may contested, the burden of disproving the
be overturned after the period to appeal therefrom genuineness and due execution thereof shall be
has lapsed. A petition for relief may be filed on the on the contestant. The testator to rebut the
grounds of fraud, accident, mistake, or excusable evidence for the contestant.
negligence within a period of 60 days after the
petitioner learns of the final judgment or final order Section 13. Certificate of allowance attached to
and not more than six months after such judgment prove will. To be recorded in the Office of Register
or final order was entered. of Deeds. — If the court is satisfied, upon proof
taken and filed, that the will was duly executed,
An action for annulment may also be filed on the and that the testator at the time of its execution
ground of extrinsic fraud within 4 years from its was of sound and disposing mind, and not acting
discovery, and if based on lack of jurisdiction, before under duress, menace, and undue influence, or
it is barrd by laches or estoppel. fraud, a certificate of its allowance, signed by the
judge, and attested by the seal of the court shall
Section 11. Subscribing witnesses produced or be attached to the will and the will and certificate
accounted for where will contested. — If the will is filed and recorded by the clerk. Attested copies
contested, all the subscribing witnesses, and the of the will devising real estate and of certificate
notary in the case of wills executed under the Civil of allowance thereof, shall be recorded in the
Code of the Philippines, if present in the register of deeds of the province in which the
Philippines and not insane, must be produced lands lie.
and examined, and the death, absence, or
insanity of any of them must be satisfactorily FERNANDEZ V. DIMAGIBA
shown to the court. If all or some of such G.R. No. L-23638, October 12, 1967
witnesses are present in the Philippines but
outside the province where the will has been Facts:
filed, their deposition must be taken. If any or all On January 19, 1955, Ismaela Dimagiba, now
of them testify against the due execution of the respondent, submitted to the Court of First
will, or do not remember having attested to it, or Instance a petition for the probate of the
are otherwise of doubtful credibility, the will may purported will of the late Benedicta de los Reyes,
nevertheless, be allowed if the court is satisfied executed on October 22, 1930, and annexed to
from the testimony of other witnesses and from the petition. The will instituted the petitioner as
all the evidence presented that the will was the sole heir of the estate of the deceased. The
executed and attested in the manner required by petition was set for hearing, and in due time,
law. Dionisio Fernandez, Eusebio Reyes and Luisa
Reyes and one month later, Mariano, Cesar,
Leonor and Paciencia, all surnamed Reyes, all

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 56

claiming to be heirs intestate of the decedent, The appellate Court held that the decree of June
filed oppositions to the probate asked. Grounds 20, 1958, admitting the will to probate, had
advanced for the opposition were forgery, vices become final for lack of opportune appeal; that
of consent of the testatrix, estoppel by laches of the same was appealable independently of the
the proponent and revocation of the will by two issue of implied revocation; that contrary to the
deeds of conveyance of the major portion of the claim of oppositors-appellants, there had been
estate made by the testatrix in favor of the no legal revocation by the execution of the 1943
proponent in 1943 and 1944, but which and 1944 deeds of sale, because the latter had
conveyances were finally set aside by this been made in favor of the legatee herself, and
Supreme Court in a decision promulgated on affirmed the decision of the Court of First
August 3, 1954, in cases G.R. Nos. L-5618 and L- Instance.
5620 (unpublished).
Issue:
After trial on the formulated issues, the Court of Whether or not the decree of the Court of First
First Instance, by decision of June 20, 1958, found Instance allowing the will to probate had become
that the will was genuine and properly executed; final for lack of appeal
but deferred resolution on the questions of
estoppel and revocation "until such time when Ruling:
we shall pass upon the intrinsic validity of the Yes. Oppositors-appellants contend that the
provisions of the will or when the question of order allowing the will to probate should be
adjudication of the properties is opportunely considered interlocutory, because it fails to
presented." resolve the issues of estoppel and revocation
propounded in their opposition. We agree with
Oppositors Fernandez and Reyes petitioned for the Court of Appeals that the appellant's stand is
reconsideration, and/or new trial, insisting that untenable. It is elementary that a probate decree
the issues of estoppel and revocation be finally and definitively settles all questions
considered and resolved; whereupon, on July 27, concerning capacity of the testator and the
1959, the Court overruled the claim that proper execution and witnessing of his last will
proponent was in estoppel to ask for the probate and testament, irrespective of whether its
of the will, but "reserving unto the parties the provisions are valid and enforceable or otherwise.
right to raise the issue of implied revocation at (Montañano vs. Suesa, 14 Phil. 676; Mercado vs.
the opportune time." Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89
Phil. 710). As such, the probate order is final and
On January 11, 1960, the Court of First Instance appealable; and it is so recognized by express
appointed Ricardo Cruz as administrator for the provisions of Section 1 of Rule 109, that
sole purpose of submitting an inventory of the specifically prescribes that "any interested person
estate, and this was done on February 9, 1960. may appeal in special proceedings from an order
or judgment . . . where such order or judgment:
On February 27, 1962, after receiving further (a) allows or disallows a will."
evidence on the issue whether the execution by
the testatrix of deeds of sale of the larger portion Appellants argue that they were entitled to await
of her estate in favor of the testamentary heir, the trial Court's resolution on the other grounds
made in 1943 and 1944, subsequent to the of their opposition before taking an appeal, as
execution of her 1930 testament, had revoked otherwise there would be a multiplicity of
the latter under Article 957(2) of the 1950 Civil recourses to the higher Courts. This contention is
Code (Art. 869 of the Civil Code of 1889), the trial without weight, since Rule 109, section 1,
Court resolved against the oppositors and held expressly enumerates six different instances
the will of the late Benedicta de los Reyes when appeal may be taken in special
"unaffected and unrevoked by the deeds of sale." proceedings.
Whereupon, the oppositors elevated the case to
the Court of Appeals. There being no controversy that the probate
decree of the Court below was not appealed

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 57

on time, the same had become final and Basa,intervenor Rosario Basa de Leon filed with
conclusive. Hence, the appellate courts may the justice of the peace court of San Fernando,
no longer revoke said decree nor review the Pampanga, a complaint against the petitioner
evidence upon which it is made to rest. Thus, herein, for falsification or forgery of the will
the appeal belatedly lodged against the probated as above indicated. The petitioner was
decree was correctly dismissed. arrested. He put up a bond in the sum of P4,000
and engaged the services of an attorney to
The alleged revocation implied from the undertake his defense. Preliminary investigation
execution of the deeds of conveyance in favor of of the case was continued twice upon petition of
the testamentary heir is plainly irrelevant to and the complainant. The complaint was finally
separate from the question of whether the dismissed, at the instance of the complainant
testament was duly executed. For one, if the will herself, in an order dated December 8, 1932.
is not entitled to probate, or its probate is denied,
all questions of revocation become superfluous Three months later, or on March 2, 1933, the
in law, there is no such will and hence there same intervenor charged the petitioner for the
would be nothing to revoke. Then, again, the second time with the same offense, presenting
revocation invoked by the oppositors- the complaint this time in the justice of the peace
appellants is not an express one, but merely court ofMexico, Pampanga. The petitioner was
implied from subsequent acts of the testatrix again arrested, again put up a bond in the sum
allegedly evidencing an abandonment of the of P4,000, and engaged the services of counsel to
original intention to bequeath or devise the defend him. This second complaint, after
properties concerned. As such, the revocation investigation, was also dismissed, again at the
would not affect the will itself, but merely the instance of the complainant herself who alleged
particular devise or legacy. Only the total and that the petitioner was in poor health.
absolute revocation can preclude probate of the
revoked testament (Trillana vs. Crisostomo, On February 2, 1934, to be exact, the same
supra.). intervenor accused the same petitioner for the
third time of the same offense. The information
MERCADO V. SANTOS was filed by the provincial fiscal of Pampanga in
G.R. No. 45629, September 22, 1938 the justice of the peace court of Mexico. The
petitioner was again arrested, again put up a
Facts bond of P4,000, and engaged the services of
On May 28, 1931, ANTILANO G. MERCADO, the defense counsel. The case was dismissed, after
petitioner herein filed in the Court of First due investigation, on the ground that the will
Instance of Pampanga a petition for the probate alleged to have been falsified had already been
of the will of his deceased wife, Ines Basa. probated and there was no evidence that the
Without any opposition, and upon the petitioner had forged the signature of the
testimony of Benigno F. Gabino, one of the testatrix appearing thereon, but that, on the
attesting witnesses, the probate court, on June contrary, the evidence satisfactorily established
27, 1931, admitted the will to probate. Almost the authenticity of the signature aforesaid.
three years later, on April 11, 1934, the five
intervenors herein moved ex parte to reopen the Dissatisfied with the result, the provincial fiscal,
proceedings, alleging lack of jurisdiction of the on May 9, 1934, moved in the Court of First
court to probate the will and to close the Instance of Pampanga for reinvestigation of the
proceedings. Because filed ex parte, the motion case. The motion was granted and, for the fourth
was denied. The same motion was filed a second time, the petitioner was arrested, filed a bond
time, but with notice to the adverse party. The and engaged the services of counsel to handle
motion was nevertheless denied by the probate his defense. The reinvestigation dragged on for
court. almost a year until February 18, 1934, when the
Court of First Instance ordered that the case be
It appears that on October 27, 1932, i. e., sixteen tried on the merits.
months after the probate of the will of Ines

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 58

The petitioner interposed a demurrer on the by the court of a will of real and personal estate
ground that the will alleged to have been forged shall be conclusive as to its due execution
had already been probated. This demurrer was
overruled. The motion for reconsideration and As our law on wills, particularly section 625 of our
the proposed appeal were denied. The case Code of Civil Procedure aforequoted, was taken
proceeded to trial, and forthwith petitioner almost bodily from the Statutes of Vermont, the
moved to dismiss the case claiming again that decisions of the Supreme Court of that State
the will alleged to have been forged had already relative to the effect of the probate of a will are
been probated and, further, that the order of persuasive authority in this jurisdiction.
probating the will is conclusive as to the
authenticity and due execution thereof. Under the American Law, The probate of a will in
this jurisdiction is a proceeding in rem. The
Petitioner contends (1) that the probate of the provision of notice by publication as a
will of his deceased wife is a bar to his criminal prerequisite to the allowance of a will is
prosecution for the alleged forgery of the said constructive notice to the whole world, and when
will; and, (2) that he has been denied the probate is granted, the judgment of the court is
constitutional right to a speedy trial. binding upon everybody, even against the State.
This rule is followed in our jurisdiction.
Issue
Whether or not the probate of a will bars criminal American and English Jurisprudence, however,
prosecution of the alleged forger of the probate provide conflicting rules as to the effect of the
will probate of the will with regard to criminal
prosecution. The majority decision of the Court
Ruling of Appeals (under American Judxn) cites English
Yes. The law creates a CONCLUSIVE decisions to bolster up its conclusion that "the
PRESUMPTION as to the due execution of the judgment admitting the will to probate is binding
will after it is admitted into probate. upon the whole world as to the due execution
and genuineness of the will insofar as civil rights
There are two provisions in the Code of Civil and liabilities are concerned, but not for the
Procedure in favor of the petitioner: Section 306 purpose of punishment of a crime.” It appears,
and Section 625. therefore, in some cases, that while the law
creates a CONCLUSIVE PRESUMPTION as to the
Sec. 306 on the effect of judgment: “The effect of disposition of the property of the deceased, real
a judgment or final order in an action or special or personal, such conclusive presumption “does
proceeding before a court or judge of the not protect the forger from punishment.”
Philippine Island xxxxx 1. In case of a judgment or
order against a specific thing, or in respect to the In other cases, however, the courts ruled that “A
probate of a will, or the administration of the judgment admitting a will to probate cannot be
estate of a deceased person….the judgment or attacked collaterally although the will was forged;
order is conclusive upon the title of the thing, the and a payment to the executor names therein of
will or administration, or the condition or relation a debt due the decedent will discharge the same,
of the person: Provided, That the probate of a will notwithstanding the spurious character of the
or granting of letters of administration shall only instrument probated. It has also been held that,
be prima facie evidence of the death of the upon an indictment for forging a will, the probate
testator or intestate.” of the paper in question is conclusive evidence in
the defendant’s favor of its genuine character.”
SEC. 625. Allowance Necessary, and Conclusive
as to Execution. — No will shall pass either the This conflict among the cases behooves us,
real or personal estate, unless it is proved and therefore, as the court of last resort, to choose
allowed in the Court of First Instance, or by that rule most consistent with our statutory law,
appeal to the Supreme Court; and the allowance having in view the needed stability of property
rights and the public interest in general.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 59

court of a will of real and personal estate shall be

It is clear, however, that a duly probated will conclusive as to its due execution."
cannot be declared to be a forgery without
disturbing in a way the decree allowing said will There are two conflicting decisions by different
to probate. It is at least anomalous that a will jurisdictions.
should be regarded as genuine for one purpose
and spurious for another. Not only does the law On one hand, we have this jurisdiction that says that
surround the execution of the will with the one can no longer file a case against the forger
necessary formalities and require probate to be because there was already a probate that has been
made after an elaborate judicial proceeding, but made by the probate court. The probate court
section 113, not to speak of section 513, of our decided that the will has been duly executed. One
Code of Civil Procedure provides for an adequate can no longer say that there was forgery.
remedy to any party who might have been
adversely affected by the probate of a forged will, On the other hand, there are other jurisdictions
much in the same way as other parties against saying that even if there is probate of the will by the
whom a judgment is rendered under the same or court and the court decided to execute the will, still,
similar circumstances. The aggrieved party may the forger can still be filed a case against. Pwede pa
file an application for relief with the proper court nimo ma-filean because the forger has done a
within a reasonable time, but in no case criminal act and he cannot hide on the basis that
exceeding six months after said court has there is already a probate proceeding that
rendered the judgment of probate, on the conclusively said that the last will has been duly
ground of mistake, inadvertence, surprise or executed.
excusable neglect. An appeal lies to review the
action of a court of first instance when that court The Supreme Court ruled that, under our rules,
refuses to grant relief. After a judgment allowing there are remedies that are going to be given to the
a will to be probated has become final and aggrieved party. The aggrieved party can still file
unappelable, and after the period fixed by cases to annul or nullify the probate proceedings.
section 113 of the Code of Civil Procedure has The criminal action will not lie in the Philippine
expired, the law as an expression of the legislative jurisdiction against the forger of the will which has
wisdom goes no further and the case ends there. already been admitted to probate by a court of
competent. SC said that we can no longer file a
We hold, therefore, that in view of the provisions criminal case against the forger, absent those
of sections 306, 333 and 625 of our Code of Civil remedies.
Code Procedure, criminal action will not lie in this
jurisdiction against the forger of a will which had BASA V. MERCADO
been duly admitted to probate by a court of 61 Phil 632 (1935)
competent jurisdiction. Facts:
By virtue of an order dated June 27, 1931, the
The question here is forgery, the criminal cases that Honorable Hermogenes Reyes, Judge of the
have been filed. They are not satisfied with the Court of First Instance of Pampanga, allowed and
intervention nila sa probate court. probated the last will and testament of Ines Basa,
deceased.
The Supreme Court held here that, even if there is
already a probate of the forged will, the criminal On January 30, 1932, the same judge approved
case will still proceed. the account of the administrator of the estate,
declared him the only heir of the deceased under
Section 625 of the Code of Civil Procedure is explicit the will and closed the administration
as to the conclusiveness of the due execution of a proceedings.
probated will. It provides: "No will shall pass either
the real or personal estate, unless it is proved and On April 11, 1934, the herein petitioners-
allowed in the Court of First Instance, or by appeal appellants filed a motion in which they prayed
to the Supreme Court; and the allowance by the that said proceedings be reopened and alleged

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 60

that the court lacked jurisdiction to act in the The appellants also contend that the trial court
matter because there was a failure to comply with erred in ruling that the weekly newspaper, Ing
requirements as to the publication of the notice Katipunan, in which the notice of hearing was
of hearing prescribed in the following section of published, was a newspaper of general
the Code of Civil Procedure: circulation in the Province of Pampanga.

"SEC. 630. Court to appoint hearing on will.— The record shows that Ing Katipunan is a
When a will is delivered to a court having newspaper of general circulation in view of
jurisdiction of the same, the court shall appoint a the fact that it is published for the
time and place when all concerned may appear to dissemination of local news and general
contest the allowance of the will, and shall cause information; that it has a bona fide
public notice thereof to be given by publication in subscription list of paying subscribers; that it
such newspaper or newspapers as the court directs is published at regular intervals and that the
of general circulation in the province, three weeks trial court ordered the publication to be made
successively, previous to the time appointed, and in Ing Katipunan precisely because it was a
no will shall be allowed until such notice has been "newspaper of general circulation in the
given. At the hearing all testimony shall be taken Province of Pampanga."
under oath, reduced to writing and signed by the
witnesses." Furthermore no attempt has been made to prove
that it was a newspaper devoted to the interests
In this motion the appellants claim that the or published for the entertainment of a particular
provisions of section 630 of the Code of Civil class, profession, trade, calling, race or religious
Procedure have not been complied with in view denomination. The fact that there is another
of the fact that although the trial judge, on May paper published in Pampanga that has a few
29, 1931, ordered the publication of the required more subscribers (72 to be exact) and that certain
notice for "three weeks successively" previous Manila dailies also have a larger circulation in that
to the time appointed for the hearing on the province is unimportant. The law does not
will, the first publication was on June 6, 1931, the require that publication of the notice, referred to
third on June 20, 1931, and the hearing took in the Code of Civil Procedure, should be made
place on the 27th of that month, only twenty-one in the newspaper with the largest numbers is
days after the date of the first publication instead necessary to constitute a newspaper of general
of three full weeks before the day set for the circulation.
hearing.

Issue
Whether or not Ing Katipunan is a newspaper of
general circulation.

Ruling
Yes

In view of the foregoing, it is held that the

language used in section 630 of the Code of
Civil Procedure does not mean that the notice,
referred to therein, should be published for
three full weeks before the date set for the
hearing on the will. In other words the first
publication of the notice need not be made
twenty-one days before the day appointed for
the hearing.

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022
 SPECIAL PROCEEDINGS based on the lectures of
A T T Y . J O A N N E M A R I E A . C O M A | 61

FOR PERSONAL USE. DO NOT REPRODUCE.

E.J. LABRADOR | J. PUNO | R.J. REMULTA | K.S.M. TIU
2022