Remedial Law Review Atty.

Tranquil Salvador Special Proceedings

The lease rentals sought to be claimed was for the period of April 1993 to December 1998 but the decedent passed away in 1989. So there was a question here that they were trying to answer on transmissibility. The general rule is that heirs are bound by the contracts entered into by their predecessors. Except when the rights or obligations are not transmissible by nature, by stipulation or by provision of law. The SC said that it is the general rule but the lease rentals accrued after his death therefore the estate should not be held liable. Sale of real property, should it be with the consent of the probate court? It is a clear provision of law. But there is a lot of jurisprudence on this matter. One jurisprudence is the case of Lee vs. RTC of QC. 1.) Any disposition of estate property by an administrator or prospective heir, pending final adjudication, requires court approval. No real property can be disposed with court approval. 2.) Any unauthorized disposition can be annulled by the probate court and no need of a separate action. Can the intestate or probate court, considering that it could annul the sale, execute its order nullifying or annulling the sale? Are we clear? Diniklara niya null and void, can they implement and execute? Do you need a separate court to implement it? According to this case, the SC said we see no reason why it cannot. Enforcement is a necessary adjunct of the intestate or probate courts power to annul or unauthorized or fraudulent. The probate court can declare and execute it. Rule 73 What is important here is the venue. Where is the venue of the action? If the decedent is a resident of the Philippines the venue for estate cases will be in the place were he last resided, where he resided at the time of his death. In one case decided by the court, the deceased has a residence in Bacolod but during the latter part of his life, because of his deteriorating physical condition, he had to stay in QC. And for that reason, for the purposes of venue, for an action for probate, it should be filed in QC. Let us now look at settlement of estate of a person presumed dead. If a person presumed dead is latter found to be alive, how will we deal with the estate of that person? He is entitled to the balance of his estate after payment of his debts. The balance may be recovered by a mere motion in the same proceeding that declared him presumptively dead. What if the deceased is a resident of a foreign country but he has properties scattered in the Philippines. Take note we didnt say foreigner because as a rule a foreigner cannot acquire real property in the Philippines unless you acquire it by inheritance or you were previously a natural born citizen. Where is the venue? In the place were the property is located. Rule 74 The most important is extra-judicial settlement. Memorize requisites. What are the requisites? 1.) there is no will so the testator died intestate 2.) there are no debts 3.) and if there are minors they are represented by guardians ad litem. So what do you mean by extra-judicial partition? First, it could either mean an extra-judicial settlement through a public instrument duly notarized. Second, there can be an affidavit of self-adjudication. Meaning you are only one heir, you adjudicate the entire estate in your name. Third, a stipulation in a pending action for judicial partition is in Rule 69. Therefore, what does it mean? In an action for a judicial partition the parties stipulate. The Commissioners were no longer appointed. Hindi na umabot sa Commissioner. Nagkasundo sila. Ito partihan natin. This is how well distribute. It falls under that. And all these extra-judicial settlements of estate requires publication. Do you need a bond for an extra-judicial settlement of an estate? Yes but only for personal property. Can you still protest a distribution of the estate? If you are an omitted heir, can you still contest? Yes. You can contest within a period of 2 years from the distribution or settlement. Rule 75 Allowance is conclusive as to due execution. And please remember this. I usually do not recommend that you remember a motherhood statement but I would like you to remember a motherhood statement this time. No will shall pass real or personal property unless proved and allowed. What is the duty of a custodian of a will? Within a period of 20 days after he knows the death of the testator. From the time of his knowledge of the death of the testator, what should he do? 1.) Deliver the will to the court having jurisdiction 2.) or present it to the executor named in the will. Distinguish the probate of the will after the death of the testator and probate during his lifetime. Can the will be probated during the lifetime of the testator? Yes. If it is after the death of the testator, who can apply for the probate? Can the executor apply? Yes. Administrator? Yes. Heir? Yes or any interested person. Of course if it is during the lifetime of the testator, it is he who will apply. In terms of notices, should notices be given to compulsory heirs if probate is after the death of the testator? Yes. If it is during the lifetime of the testator? Yes. Should notice be given to the rest of the heirs by publication? No if the probate is during the lifetime of the testator. But if it is after the death of the testator, notice should be by publication not only to the compulsory heirs but all the heirs. Let us look at a situation wherein there is a probate of a will with no contest. Let us look at a notarial will and a holographic will. If there is no contest in a notarial will how many witnesses do you need? One subscribing witness. However if it is contested, the three subscribing witnesses. How about in a holographic will? 1.) One witness who knows the handwriting or the signature of the testator 2.) In the absence of a witness, an expert witness. Who may petition for the allowance of a will? 1.) executor, devisee, legatee or any other person who is interested. 2.) the testator during his lifetime.

Jeric Angeles 4B 2010-2011

Remedial Law Review Atty. Tranquil Salvador Special Proceedings

Can a will lost or destroyed be proven? Remember, we discussed secondary evidence in evidence. This has a special rule in special proceeding. Can you present secondary evidence? Yes. 1.) to establish its existence 2.) you have to establish that it was fraudulently or accidentally lost or destroyed 3.) you need 2 credible witnesses. Rule 77 Can a will proved outside of the Philippines be allowed in the Philippines? This is answered by Rule 77. Yes. A will proved or allowed in a foreign country may be allowed in the Philippines. It should be filed and recorded in the proper court. Before you are misled by some provisions of the Rules in Special Proceedings, take note that jurisdiction in estate cases is determined by the value of the estate. BP129 as amended by RA 7691. That if the value of the estate exceeds 400,000 in Metro Manila, outside Metro Manila 300,000, in the RTC. Not exceeding 400,000 in Metro Manila, and 300,000 outside Metro Manila, in the MTC. Take note that probate cases cannot be subject of summary proceedings. What will the court issue to prove or establish the allowance of a will? The court will issue a certificate of allowance. Who are incompetent to serve as executor or administrator? 1.)A minor. 2.)A person who is not a resident of the Philippines. 3.) Unfit to execute the duties of the trust by reason of improvidence, want of understanding or integrity or by reason of conviction of an offense involving moral turpitude. To whom should letters of administration be granted? 1.) Surviving husband or wife or next of kin or a person selected by them 2.) principal creditors 3.) persons they may select Rule 79 Can a petition for administration be opposed? Yes. Rule 79. For what reasons? 1.) Incompetency of the person prayed for 2.) contestants own right to be the administrator meaning the oppositor says I am the better one 3.) competent person named in the opposition. Rule 80 Lets us now look at a special administrator. Who is a special administrator? Let me first touch on the case of Castillo vs. Gabriel. A special administrator is representative of the decedent appointed by a probate court to care for and preserve his estate until an executor or a general administrator is appointed. So you should note that the appointment of a special administrator is momentary. A special administrator is under the control, supervision and direction of the probate court. Looking at the provision, how is it defined? A special administrator is appointed if there is delay in the appointment. So unlike before just to preserve until a regular one is appointed, the present rule or the old rules of 1964 which makes the new rule, also covers delay in granting letters testamentary or administration including appeals on the allowance and disallowance of wills can be basis for appointment of an administrator. Rule 82 Can the letters of administration be revoked? Yes if the will is discovered. Even if there is an administrator, if it is later discovered that there is a will, the letters of administration will be revoked. Can it be revoked for other reasons? Yes if the administrator absconds or he fails to render an accounting or if he becomes insane or unsuitable to discharge the trust. Can he resign as an administrator? Yes. Can the executor or administrator have access to partnership books? If you look at the provisions of Rule 84 Section 1, you would know that it only covers partnership. It does not extend to a corporation. Why? Because the corporations life will continue beyond the death of a stockholder. Even if you are the majority stock holder, it will pass on by operation of law. Unlike in a partnership, generally once a partner dies, the partnership is dissolved. Thats why the a dministrator is given access to partnership books. Failure to comply with the order of the court, the partner may be held liable in contempt. What is the reason? Failure to allow an examination of the books. Rule 86-87 Take note the coverage of Rule 86. What does it cover? It covers claims against the estate and this includes money judgments. What is the requirement in terms of notice? The court shall issue a notice requiring all person shaving money claims against the estate to file it with the office of the clerk of court. What is the period to file the claims against the estate? A period not less than 6 months nor more than 12 months after the first publication. General rule, Section 5, all claims must be filed within the time limited; otherwise it will be forever barred. Exception: as counterclaims in any action that executor or administrator may bring. Claims against the executor or administrator. 1.) Recovery for any real or personal property or an interest therein must be in the name of the executor or administrator. 2.) Recovery for damages for an injury to a person or property which was caused by the deceased during his lifetime can be in the name of the executor. There is another motherhood statement in section 2, all other actions claims that survive, it is not against the estate but against the executor or administrator. Where can you apply for recovery of properties which were transferred in fraud of creditors? Do you need a separate action for that or can you file it in the probate court? You can do it in the probate court. But class, take note that that is the primary duty of an administrator or executor. But what if the executor or administrator refuses to file it? Can some other person recover? Yes, the creditors can make the application but they should pay the expenses of the recovery and give security. Rule 88 Of course, the estate sometimes is left with debts. How should the debts be paid? From where should the money be used for payment come from? 1.) from the personal estate 2.) real property not disposed of by will 3.) redemption over contingent claims. What is

Jeric Angeles 4B 2010-2011

Remedial Law Review Atty. Tranquil Salvador Special Proceedings

the time to pay the debts? Yes. It shall not exceed one year on the first instance, can be extended for a period not more than 6 months. Rule 89 I think I discussed earlier that any sale of property, especially real property must be with the approval of the court, Rule 89 Section 2. Can the court authorize said mortgage or encumbrance of realty to pay debts? Yes. But should there be reasons to apply for the sale of real property to pay debts? The reasons should be as follows: 1.) personal property is not enough to pay the debt 2.) sale of personal property will injure the business or the estate 3.) testator should not have made provisions regarding payment of debts. There should always be an order from the court allowing or approving the sale or mortgage. Rule 90 Another important motherhood statement: no distribution shall be allowed until payment of debt, funeral expenses, expenses of administration, allowances to the widow and estate tax. And in taxation, your estate tax should be paid within 6 months from the time of death. Rule 91 Who can institute an action for escheat? The Solicitor General in behalf of the Republic. You file it in court where the deceased last resided at the time of his death or where he has property. Can you still claim if you are an heir who latter found out that the property has been escheated? Yes within the period of 5 years from the date of such judgment. In the case of Republic vs. CA it was said that escheat is one of the incidence of sovereignty. The procedure by which escheated property may be recovered is generally prescribed by law. Who is an interested party? Can an interested party recover? Rule 91, Sec.4. The question is can the respondent be not an heir but allegedly a done and have the personality to be a claimant within the purview of Sec.4? Yes. Any person alleging who has a direct right or interest with the property sought to be escheated is likewise an interested party and can thus appear and oppose the petition. What is the effect of a judgment in escheat proceeding? According to the court, a judgment in an escheat proceedings when rendered by a court of competent jurisdiction is conclusive on all persons with actual or constructive notice but not against those who are not parties or privies Rule 92 Where will you institute an action for guardianship? Where the minor or incompetent resides. In what particular court? Who may petition for appointment of a guardian? Can a relative petition? Yes. A friend? Yes. Can the minor himself petition? Yes if he is at least 14 years old. Should a parent file petition to become a legal guardian? The provision, Sec.7, has been amended. Now, it is P50,000. Now, when you talk about guardianship, does it mean you just have to take care of the ward? Or not only to take care of the ward but to manage the properties of the ward? Yes. Would it also be possible to be appointed as the guardian of the properties in the Philippines of the ward? Yes. Can a guardian sell or encumber properties of the ward? Yes. For what reasons? 1.) the property of the estate is insufficient to maintain the ward and his family 2.) for the education of the ward 3.) for the benefit of the ward. In the case of Bansil vs. Delos, the question here is who should be appointed as a guardian? Is it the natural mother or the grandmother? The question here is who has the preferential right to be appointed as the guardian. The grandmother contends that she has substitute parental authority over the minor. But according to the law, a grandmother can have substitute parental authority in case of death, absence or unsuitability of a natural parent. Rule 98 Who is a trustee? A trustee has been named to carry into effect the provisions of a will or a written instrument. When can he be appointed or confirmed? In the same court as the probate court. Adoption and Cancellation of Entry in Civil Registry There was a child who was left outside a house of a couple. Having noticed that there was no one around, they decided to adopt the child. But what they did was not legal adoption. They caused or executed or filled in details of a birth certificate and put themselves as the natural parents. The child grew up and when she applied for a VISA for the US, she was declined. The reasons was she was not the natural child of the supposed parents because they discovered that the mother cannot bear a child. What actions can you take to validate the adoption? 1.) Cause the cancelation of entry in the civil registry because it appears there that there was a live birth. Where do you need to file it? Who are the parties in the said case? Let me call your attention to the case of Serulla vs. Delantar. The venue is the place where the entry was made or recorded. Who should be impleaded? You should implead the civil registrar, the Office of the Solicitor General and other indispensible parties, you should include not only the declared father but also the child as well. Together with the paternal grandparents if any as their hereditary rights will be adversely impaired. If we are talking about cancellation or correction, hereditary rights will be affected. You need to implead all interested parties. 2.) As you know in ordinary adoption, you have to get the consent of the natural parents if they are alive. But in this case, there no natural parents. What will you do? Do you need a judicial declaration that the child is neglected or abandoned? Do you need a court proceeding? There is a new law. You go to the DSWD to get a certification. And any questions must be appealed to the Secretary. It is not judicial. Then you can adopt the child. What if the adopter is a resident of a foreign country? Because the rule is a Filipino can adopt. A foreigner residing in the Philippines can adopt for at least 3 years. What is the age difference between the adopter and the adoptee? 16 years. Of course I do not intend to discuss the exceptions. You will go through inter-country adoption. What happens? There will be an interview by a social service employee. There will be a matching. It does not necessarily follow that the child that you want will be the child that you will get. Where should you institute the action for adoption? It should be instituted where the adopter resides.

Jeric Angeles 4B 2010-2011

Remedial Law Review Atty. Tranquil Salvador Special Proceedings

Rule 102 Let me start with the case of Martinez vs. Mendoza to give you an idea on what can be the basis of an action for habeas corpus. Is simple disappearance sufficient? He was last seen drinking with three individuals and then he cannot be found. Can that be a basis for habeas corpus? No. When you talk of forceable taking and disappearance, that is not the basis for an application of writ of habeas corpus. It should be arrest and detention. There being no allegation of arrest and detention, the proper remedy is not habeas corpus. The proper remedy is criminal investigation and eventually criminal action. Kindly take note that when you talk of writ habeas corpus, you should bring the body of the person in court in the literal sense. Also take note that in habeas corpus, the arrest and detention were determined illegal or unlawful. Because if it was due to a valid warrant of arrest or under Rule 112 Sec.5, then it is a valid detention. If you have been detained for the longest time and the case has not been moving and you ask for dismissal of the case due Rule 119violations of speedy trail/speedy disposition under the Constitution, and the court denied it, you can apply for a writ of habeas corpus. You recall our discussion on post-conviction application of habeas corpus wherein under the DNA Rule, when after the clinical investigation of the DNA, you were latter discovered that in fact the convict was not the one who committed the offense, you can apply for a petition for a writ of habeas corpus on the court which rendered the judgment because the detention is now unlawful. A petition for habeas corpus can be filed with the RTC, CA, or SC. There is also what you call writ of habeas corpus on custody of minors. It is different in terms of procedure. Unlike in regular habeas corpus where there is no pre-trial, in habeas corpus on custody of minors there is pre-trial. The writ of amparo can be instituted in the RTC, CA, or SC at any time of the day or night. It does not only extend to actual or committed acts but also to threatened acts that will endanger life, liberty or property. It is not also limited to the person or the victim or to his immediate family members but can also extend to institutions like religious institutions or non-governmental institutions. There is also the writ of habeas data to be able to secure documents in the pursuit of those cases and the courts I mentioned have concurrent jurisdiction. Rule 103 In the case of Republic vs. Bolante, the SC enumerated the grounds for change of name: 1.) when the name is ridiculous, dishonorable and extremely difficulty to write or pronounce 2.) when the change will avoid confusion 3.) when one has been continuously used and has been known since childhood by the Filipino name 4.) when the surname causes emabrassment and there is no showing that the desired change of name is not for a fraudulent purpose. In this particular case, the birth certificate of the applicant is different with her other school and employment records. The SC allowed the change of name to make all the documents consistent. In another case, the reason for the change of name is not one of those enumerated. The reason was to allow the child to integrate with the Singaporean community because the child carries a Filipino middle name and they want it dropped. The father was Singaporean. The Supreme Court denied it. The court said that if there is anyone who will be able to ascertain whether or not she can be properly integrated to the Singaporean community would be the child herself when she reaches the age of majority. Rule 106 Do you need a judicial declaration of a family home? No. You know that from Family Code. By use Rule 109 Can appeals be taken for judgments and orders in connection of special proceedings? Yes. Memorize Rule 109 Sec.1. Can the appointment of a special administrator be appealed? No. Record on appeal is the proper mode of appeal for a period of 30 days. Im done.

Jeric Angeles 4B 2010-2011