SPECPRO 2013-2014 Midterms Case Digests

SPECPRO 2013-2014 MIDTERMS Judge Singco Transcripts and Case Digests
Luj. Arl. Aika. Anacelle. Emily. Anj. Daphne.

11/14/13
This is a very different set of proceedings from Provisional Remedies, Special Civil Actions or Ordinary
Actions. This is Special Proc, this will be based on the pleadings.
Q: Can you go through the proceeding without calling for an initial hearing?
A: This is significant because this would allow the court to assume jurisdiction over the case. Without
publication and initial hearing where there is a need to establish jurisdictional facts it cannot proceed with
the trial.
And you must know also because the cases mostly are initiated by the petitioner. It is done ex parte.
Usually non-adversial. In some cases notwithstanding, you will need to implead the Republic represented
by the Office of the Solicitor General (OSG) it cannot be heard ex parte. But in most cases it is done ex
parte. In most cases, it is heard by the branch clerk of court, just to give you an idea what to expect in the
hearings.
Q: How will you know it will be heard by the court?
A: You check the calendar. You can do your shopping. You can ask which among the courts has general
jurisdiction. Because here jurisdiction is limited. In adoption especially involving a minor is usually heard
by a Family Court. So that you will know. When you get into practice you will know what proper court you
will go to. If a minor is involved, it will usually be heard by the Family Court.
So for example guys you have a settlement of the estate of the decedent, where can you find this kind of
proceeding? Is it with RTC or MTC? As per the amendment, if the property is less than P300,000 it is with
the MTC. If the amount is beyond that it will be with the RTC. So when you get into the practice of law,
you cannot just focus on cases with the RTC.
Q: What do you do in a special proceeding? Why do you file a case involving special proceedings? What
is this remedy or action?
A: To determine a status of a party, or a right.
Q:What right for example?
A: Right to a property. If you are an heir of an estate, that is going to be settled. You want to be
recognized as an heir, that you should be given a share, so you go through a special proceedings.
Q: Aside from establishing a status or a right, what else? Can you file a petition to declare yourself as a
Filipino even if you are Chinese?
A: By way of correction of entries, why not. If it was mistakenly entered into your birth certificate that you
are Chinese because allegedly you father is Chinese who is married to your mother when in truth and in
fact he was never married to your mother. In fact you were not acknowledged and your mother is a
Filipino then you are a Filipino. So the remedy is correction of entries.
Another example: Your status as a legitimate or illegitimate child. Or simply an acknowledgment of the
father.
Like in one case, at the time of birth there was no recognition from the father, so what was entered in his
birth certificate is the family name of the mother, being an illegitimate. There is no mention of the father.
Then the father acknowledged the child as his, a foreigner. Remember that the father did not marry the
mother. But the father wanted that his name be carried by his son.
Q: Is that allowed by correcting the entries in a special proceedings?
A: Yes because that would be beneficial to the child. You are not establishing or changing his legitimacy
here or his affiliation. Only that we establish that the father acknowledge him and therefore has a right to
carry the surname of the father and for purposes in the future if he is going to be recognized also as a
citizen of his fathers country, so the birth certificate can be used as proof.

Q: What is the difference between an ordinary action and a special proceedings?
ORDINARY ACTION
SPECIAL PROCEEDING
PURPOSE
to protect or enforce a right or prevent or redress a

involves the establishment of the right, status or fact
wrong
NUMBER OF PARTIES
involves two or more parties
may involve only one party

-there is only one party, unless the court will order
otherwise.
-adversarial
-the respondent is usually a nominal party such as

the NSO in a petition for the correction of names
because ultimately, it will be the recipient of all these
documents and it will make the final changes to any
birth certificate.
GOVERNING RULES
governed by ordinary rules
supplemented by special rules
- initiatory pleading is a complaint in an ordinary civil
action and parties respond through an answer
governed by special rules supplemented

by ordinary rules
- proceeding is initiated by a petition or an
application and parties respond through an
opposition, but regardless of whether theres an
opposition or no opposition, the government is not
precluded from participating in the proceedings,
especially in cases, say for example, case like
adoption, correction of entries in a birth certificate or
death certificate or marriage certificate, and change
of name, because in settlement of estate, the State
doesnt care, wai pakialam ang gobyerno ana.
- summons will be issued by the court to require the

defendant to file his answer to the complaint, there is a
period of time like 15 days.
- no more summons, TAKE NOTE, the court may

order the publication of the initial hearing of the
petition in a newspaper of general circulation in
order to acquire jurisdiction over the petition and the
parties who may be interested in the petition or who
may be affected by the commencement of the
petition. The failure to publish the initial hearing is
- there is default after the lapse of reglamentary periods fatal. That would mean a dismissal of the petition.
Without prejudice, because it could be refiled. Why?
Because the court has not acquired jurisdiction.
- If the solicitor general for example, would make his
opposition, there is no period prescribed, for as long
as before the reception of evidence, its already
submitted by the respondent government agency
like the Solicitor General representing the civil
registrar or the State in general or the NSO. But
there is no answer filed.
- But even then they do not file an opposition, they
are not precluded from participating in the

proceedings. The Solicitor General would issue an
authority to the Office of the Prosecutor whether city
or provincial to enter its appearance on behalf of the
government and would participate in the
proceedings. In other words, there is no default in
special proceedings unlike in ordinary civil action.
-example when special rules are supplemented by

ordinary rules: after the petitioner has already
submitted its exhibits, then make a formal offer and
the evidence must be in accordance with the rules
on evidence.
JURISDICTION OF COURTS
heard by courts of general jurisdiction
heard by courts of limited jurisdiction
INITIATORY AND RESPONSIVE PLEADINGS
Initiated by a pleading and parties respond through an
answer
Initiated by means of a petition and parties respond

by means of an opposition
Q: What is then the subject matter of special proceedings? What do we study here in special
proceedings? As enumerated in the law.
A: RULE 72 Sec. 1. Subject matter of special proceedings. - Rules of special proceedings are provided
for in the following cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children; (usually in a family court)
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons; (hospitalization of an insane man, adto sa mental hospital while the
case is still pending)
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death; (prelude to remarrying)
(n) Cancellation or correction of entries in the civil registry.
liquidation proceedings, intra-corporate controversies, corporation rehabilitation, recognition and
enforcement of arbitration proceedings, setting aside, correction or modification of arbitral award, any
application with the court for arbitration assistance and supervision, amparo and habeas data.

11/15/13
Rules relating to the settlement of the estate of a deceased person
Q: What is this special proceeding for settlement?
A: It is either there is a will or the decedent died without a will. Proceeding could either be Testate or
Intestate.
Testate - There is a will left by the decedent; while in
Intestate- There is no will, and therefore the distribution of the estate is based on the rules set forth under
the law.
Q: What if they did not find the will of the decedent and an action for settlement is filed in court? While the
case is pending in court, the last will and testament was found. Which should take precedence?
A: The probate of the will should take precedence over the intestate proceedings. In a probate of a last
will and testament, you still have to prove the validity of the will. The idea here is that you have to follow
the will of the decedent in the distribution of the estate. If the intestate proceeding has commenced, and
in the course of the hearing the will has been found, the intestate proceedings shall be suspended. If later
found that the will is valid, then you follow the will, if found invalid then it is as if, there was no will so you
go back to the intestate proceeding.
Q: Where is the estate of the decedent settled?
A: JURISDICTION is determined by law, so therefore it really depends on the value of the estate. It can
be with the RTC or MTC. And the rules vary with a resident citizen and a non resident.
In the case of the Resident CitizenIt still depends on the value of his estate. Under Section 5 RA 7691 as amended by OCA Circular 2199,
the amount of the value of the estate was increased.
The jurisdiction of the RTC in Metro Manila is for estate above 400,000, while
outside Metro Manila, it is above 300,000.
If the value of the estate is less, then jurisdiction is with MTC.
In short, jurisdiction is determined by the value of the estate.
And as to the VENUE, it is where he last resided before he died.
For example, he died in Talisay, therefore the venue is also in Talisay.
In the case of a Non-ResidentThe jurisdiction is stil with RTC or MTC as the case may be,
and as to its venue, it is where the property is situated.
Q: There are several properties located in different provinces, which venue would prevail?
A: It is the court who first took cognizance over the petition.
And in case you question the venue, you should question it in the same court, meaning the first court or
the court where the case was first filed.
Students Question:
In case of estate located in different venues, you consider the total amount of the estate exclusive of
attorneys fees and costs, not only the value of the estate in that particular venue.

The matter on whether the jurisdiction is with RTC or MTC, that matter is jurisdictional, meaning if it is
filed in the wrong court, it can be dismissed.
On the other hand, if the venue is improper, that cannot result to a dismissal, as venue is waivable, as
long as it is with the proper court. If after 1 year and the parties does not object to the venue, then it is as
if the parties had waived the matter of the venue.
Residence is very vital in the determination of the venue.
We start with rule 73, the settlement of the estate of a deceased person. If you have to file a petition, what
must be included, what would be the contents of the petition?
There are allegations that are jurisdictional, otherwise, if not alleged, the petition can be dismissed
outright.
Residence is very vital in determining venue although venue may not determine jurisdiction.
Q: What do you mean by residence? TAKE NOTE the case of Fule vs CA.Residence means his
personal, actual, or physical habitation, his actual residence or place of abode. The place where a person
has the intention to return (animus revertendi)
Fule vs CA
F: Virginia G. Fule (illegitimate sister of deceased) filed with the Court of First Instance of Laguna, at
Calamba, presided over by Judge Malvar, a petition for letters of administration alleging, inter alia, "that
on April 26, 1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of
Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places, within the
jurisdiction of the Honorable Court." At the same time, she moved ex parte for her appointment as special
administratrix over the estate. Judge Malvar granted her petition. Preciosa Garcia (widow) appealed this
decision to the CA via certiorari with prohibition and PI on the grounds of, among others, jurisdiction and
lack of legal interest. Pending this case, she filed a petition for letters of administration before CFI of
Rizal, Quezon City where she acquired a favorable decision with her Urgent Petition for Authority to Pay
Estate Obligations. Fule brought a petition before SC to annul proceedings before CFI of Rizal, QC,
insisting that the spec. proc. was properly brought before CFI Laguna because Amado G. Garcia was
residing in Calamba, Laguna at the time of his death, and that he was a delegate to the 1971
Constitutional Convention for the first district of Laguna. On the other hand, Preciosa insists that Quezon
has jurisdiction because his death cert says that his residence at the place of death is Quezon and that
his residence certificate acquired 3 mos. before his death reflects that he resided in Quezon.
I: WON CFI of Rizal, Quezon City propery assumed jurisdiction over the intestate proceedings.
Corollarily, in Section 1, Rule 73, "so far as it depends on the place of residence of the decedent, or of the
location of the estate," what does the term residence mean?
R: YES. The last place of residence of the deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is admissible to prove the
residence of the decedent at the time of his death. Aside from this, the deceased's residence certificate
for 1973 obtained three months before his death; the Marketing Agreement and Power of Attorney dated
November 12, 1971 turning over the administration of his two parcels of sugar land to the Calamba Sugar
Planters Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973,
transferring part of his interest in certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and
certificates of titles covering parcels of land in Calamba, Laguna, show in bold documents that Amado G.
Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes imperative that the
venue for Virginia C. Fule's petition for letters of administration was improperly laid in the Court of First
Instance of Calamba, Laguna.

Judge 5 cited: In other words, "resides" should be viewed or understood in its popular sense, meaning,
the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily
presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also
an intention to make it one's domicile. No particular length of time of residence is required though;
however, the residence must be more than temporary.
Other pertinent discussion on venue and jurisdiction of estate proceedings:
The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of jurisdiction appears on the record." With particular regard
to letters of administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition
therefor should affirmatively show the existence of jurisdiction to make the appointment sought, and
should allege all the necessary facts, such as death, the name and last residence of the decedent, the
existence, and situs if need be, of assets, intestacy, where this is relied upon, and the right of the person
who seeks administration, as next of kin, creditor, or otherwise, to be appointed. The fact of death of the
intestate and his last residence within the country are foundation facts upon which all subsequent
proceedings in the administration of the estate rest, and that if the intestate was not an inhabitant of the
state at the time of his death, and left no assets in the state, no jurisdiction is conferred on the court to
grant letters of administration.
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it
depends on the place of residence of the decedent, or of the location of the estate," is in reality a matter
of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and
Processes." It could not have been intended to define the jurisdiction over the subject matter, because
such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure
is one thing; jurisdiction over the subject matter is another. The power or authority of the court over the
subject matter "existed and was fixed before procedure in a given cause began." That power or authority
is not altered or changed by procedure, which simply directs the manner in which the power or authority
shall be fully and justly exercised. There are cases though that if the power is not exercised conformably
with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather,
it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be
rendered defective for lack of something essential to sustain it. The appearance of this provision in the
procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the
court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties.
Q: Probate courts are courts of limited jurisdiction. It can only determine the following issues:
A:
1. administration of the estate
2. liquidation of the estate
3. distribution of the estate
As a general rule, probate court cannot determine issue of ownership
Q: Except:
A:
1. provisionally determined for the purpose of including the property in inventory without prejudice to
its final determination in a separate action
2. when all of the parties are heirs and that they submitted to such provided that the rights of third
parties are not prejudiced
3. in issues of collation or advancement
4. if the parties will give their consent to the jurisdiction of the court

Q: Other questions which the probate court can determine:

A:
1. the heirs of the decedent
2. recognition of a legitimate child
3. validity of the disinheritance
4. status of a woman who claims to be the wife of the decedent
5. status of the heir
6. whether the property in inventory is conjugal or exclusive property of the decedent
Bernardo vs CA
F: Executrix Deogracias Bernardo and testamentary heirs of the deceased Eusebio Capili (died July 27,
1958) and the collateral relatives who are heirs of deceaseds wife, Hermogena Reyes (died April 24,
1959) are fighting over the properties left by the deceased spouses. While executrix had already initiated
the testate proceedings and submitted a project partition in accordance with the will, the heirs of
Hermogena Reyes opposed and submitted their own project partition on the ground that the deed of
donation of Hermogena Reyes of her share in the conjugal partnership in favor of Capili was void
because spouses may not donate to each other during the marriage and therefore, Reyess share should
belong to them as heirs. Probate court dismissed both project partitions, declared the donation null and
void and ordered Deogracias to make another project partition in accordance with the will. Deogracias
filed the present case contending that the probate court had no jurisdiction to take cognizance of the
claim of the legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of
Eusebio Capili and taking exception to the Court's declaration of the nullity of the donation 'without stating
facts or provisions of law on which it was based.'
I: WON the probate court in this case has the power to adjudicate in the testate proceedings, the question
as to whether the properties herein involved belong to the conjugal partnership of Eusebio Capili and
Hermogena
Reyes,
or
to
the
deceased
husband
exclusively?
R: YES. This is a matter properly within the jurisdiction of the probate court which necessarily has to
liquidate the conjugal partnership in order to determine the estate of the decedent which is to be
distributed among his heirs who are all parties to the proceedings, including, of course, the widow, now
represented, because of her death, by her heirs who have been substituted upon petition of the executor
himself and who have appeared voluntarily. There are no third parties whose rights may be affected. It is
true that the heirs of the deceased widow are not heirs of the testator-husband, but the widow is, in
addition to her own right to the conjugal property. And it is this right that is being sought to be enforced by
her substitutes. Therefore, the claim that is being asserted is one belonging to an heir to the testator and,
consequently, it complies with the requirement of the exception that the parties interested (the petitioners
and the widow, represented by respondents) are all heirs claiming title under the testator.
It is not contrary to the rule that probate courts do not have the jurisdiction to settle issues on ownership
to property in the testate proceedings because according to Justice Tuason, the objection that the
probate court lacked jurisdiction to order the delivery of the possession of the lots to the estate relates
exclusively to the procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of
practice (the filing of an independent ordinary action) which may be waived." Strictly speaking, it is more
a question of jurisdiction over the person, not over the subject matter, for the jurisdiction to try
controversies between heirs of a deceased person regarding the ownership of properties alleged to
belong to his estate has been recognized to be vested in probate courts. This is so because the purpose
of an administration proceeding is the liquidation of the estate and distribution of the residue among the
heirs and legatees. Liquidation means determination of all the assets of the estate and payment of all the
debts and expenses. Thereafter, distribution is made of the decedent's liquidated estate among the
persons entitled to succeed him. The proceeding is in the nature of an action of partition in which each
party is required to bring into the mass whatever community property he has in his possession. To this

end and as a necessary corollary, the interested parties may introduce proofs relative to the ownership of
the properties in dispute. All the heirs who take part in the distribution of the decedent's estate are before
the court, and subject to the jurisdiction thereof, in all matters and incidents necessary to the complete
settlement of such estate, so long as no interests of third parties are affected.
In addition to this, latest jurisprudence on settlement of estate of spouses, in the 2000 case of Cortes vs
Reselva, it was held:
3.ID.; ID.; ID.; IF BOTH SPOUSES HAVE DIED, THE CONJUGAL PARTNERSHIP SHALL BE
LIQUIDATED IN THE TESTATE OR INTESTATE PROCEEDINGS OF EITHER. In the 1991 case of
Vita vs. Montanano we ruled: "(I)t is not necessary to file a separate proceeding in court for the proper
disposition of the estate of Isidra Montanano. Under Rule 73, Section 2 of the Rules of Court, if both
spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of
either. In the present case, therefore, the conjugal partnership of Isidra Montanano and Edilberto Vita
should be liquidated in the testate proceedings of the latter." Consequently, this case before us should be
returned to the probate court for the liquidation of the conjugal partnership of Teodoro and Lucrecia
Reselva prior to the settlement of the estate of Teodoro.
---------------------Example: RTC is a Court of General Jurisdiction, once petition for settlement of estate is filed, then I
become a Probate Court. While I am a Court of General Jurisdiction, once I become a Probate Court, my
Jurisdiction is limited. There are certain issues on the Jurisdiction as a General Court of Jurisdiction. But I
can entertain them in my Court as a Probate Court with respect to the particular petition filed.
Example: If there is a last Will and Testament, there is a need to file a petition in order for the Court to
acquire Jurisdiction. Let us assume that the value of the estate falls under the Jurisdiction of the RTC.
There is a need to file a petition for Probate. All that is needed is just to deliver a copy to the RTC. A copy
of the last will and testament and then the RTC will hear the case.
Q: It is possible that the last will and testament is first delivered in the RTC of Cebu, in the meantime the
heirs in Tacloban, filed also for a petition for settlement of the estate (intestate proceeding) which Court
has Jurisdiction? RTC Tacloban or RTC Cebu?
A: RTC Cebu, kay una man dyd ang Probate, because even without a petition or application of settlement
or Probate of the Will, all there is needed is a will is delivered to acquire Jurisdiction. And since priority
should be given to the Probate of Will, so the intestate proceeding should be suspended or otherwise
consolidated if the Will is proven to be invalid
Q: What are the issues/matters that are within the Jurisdiction of Probate Court?
(issues that may be adjudicated within the competence of the Probate Court)
1. Administration of the Estate
-there should be a petition that he be appointed to be the administrator of the estate, to
manage the estate while the case is pending, before the estate is finally distributed
among the heirs or creditors.
2. Liquidation of the Estate
-to pay the creditors.
3.
Who are the heirs of the decedent?

-knowing who are the heirs is vital
Not knowing the heirs, then how will you distribute the estate then?

4. Recognition of a legitimate child
Example: if you are legitimate then you say that you have the right to the estate of the
decedent. I have this acknowledgment of my father that I am his son. Then you present
that as an issue in the Probate Court
5. Validity of the inheritance
-anak siya, pero there is a document disinheriting him to the estate of the decedent
6. Status of a woman who claims to be the decedents wife
Case: Torres vs Javier
Torres vs. Javier
F: Two women are claiming to be the legal wife of deceased Tan Po Pic, Marta Torres and a
Chinese woman named Yu Teng New. Marta Torres objected to the appointment of any
administrator except herself, while Juan Cailles Tan Poo, on behalf of the Chinese woman,
opposed the appointment of Marta Torres. The probate court being unable to determine who, if
either, was the lawful wife of the deceased, appointed a disinterested third person to act as
administrator.
I: WON probate court can take into consideration the fact that Tan Po Pic had another wife and
thereafter appoint a third person to act as administrator
R: YES. The trial court did not err when it declined to decide who was the legal wife of the
deceased under the petition for the appointment of an administrator but delayed the resolution of
that question until such time as it could be properly met and decide during the course of the
administration proceedings.
It must be remembered that the probate court did not find as a fact that there was a wife in China;
nor does his appointment of a third person determine the fact of the existence of another wife in
China. The court considered the facts and circumstances as they were presented in the
proceedings and upon the whole believed it for the best interest of all concerned to appoint as
administrator a disinterested third person, particularly in view of the fact that there was likely to be
litigation between Marta Torres and the Chinese wife as to which is in fact his legal wife and
entitled to an interest in the estate of the deceased Tan Po Pic.
7. Validity of the waiver of his hereditary right
-whoever who may be benefited by that may raise that issue in the Probate Court
8. Status of each heir
9. Whether the property in inventory is conjugal or exclusive property of the deceased spouse
10. All other matters incidental or collateral to the settlement or distribution of the estate
11. Distribution of the estate

Where a particular matter should be resolved by the RTC in the exercise of his general Jurisdiction or in a
limited Probate Court is not a Jurisdiction issue but a mere question of procedure and can be waived.
General rule: Especially on the issue of ownership of one of the properties that is included in the
inventory of the properties belonging to the decedent. Would that issue be within the Jurisdiction of the
RTC as a Court of general Jurisdiction? It cannot be entertained in the Probate Court. It should be filed in
a separate action, to avoid any confusion in the proceeding.
Except:
if all heirs agree that this Probate Court shall settle issue the question or issue on ownership
o otherwise it should be settled in a separate action, not in the Probate Court since the
Jurisdiction of the Probate Court is limited
question: What if the other party claiming is not an heir?
Answer by Judge: the one questioning should file it in a separate action
As regards to ownership, if naay some other persons involved, mao nay gitawag nila nga provisional
determination of ownership for the purposes of determining in the Accounting/ Inventory of the
Properties not conclusive not final. Provisional still. Ang iyahang declaration on who the owner of the
property is provisional. Not even final. For purposes of accounting. Subject to evidence that may be
established to the contrary that the property is not part of the estate of the decedent
General rule: Determination of ownership of the property that may be part of the estate of the decedent is
not allowed in a Probate Court because its Jurisdiction is limited
Exception:
1. Only provisionally, ownership maybe determined for the purpose of including the property in
inventory (without prejudice in the final determination in a separate action)
2. If all the parties are heirs and they submit the issue of ownership (provided that the right of third
parties are not prejudiced)
3. If the question is one of collation or advancement
4. If the parties consent to the assumption of Jurisdiction by the Probate Court
TAKE NOTE:
Exclusionary rules under section 1 rule 73.
General rule: The Court first taking cognizance of the settlement of the estate of a decedent, shall
exercise Jurisdiction to the exclusion of all other Courts.
So the Probate Court acquires Jurisdiction from the moment the petition for settlement of the estate is
filed with the said Court. It cannot be divested of such Jurisdiction by subsequent acts of the parties.
Example: they entered into an extrajudicial settlement of the estate, -that will not override the Jurisdiction
of the Probate Court. The Court is not divested of the Jurisdiction just because the parties later on agreed
to settle the estate amicably among themselves
Case of Sandoval vs. Santiago
Sandoval vs Santiago
F: Petitioner instituted a special proceeding in the Court of First Instance of Quezon Province for the
probate of the will and codicil executed by the deceased Daniel Marquez in which she was designated as
executrix. The will and codicil were allowed and the petitioner was appointed on August 16, 1946,
executrix in accordance with the will, but before the petitioner qualified as executrix, the three heirs
10

instituted in the will, all of age, made an extrajudicial partition of all the properties of the deceased on
October 5, 1946, and entered into the possession of their respective shares without the authority and
approval of the court. One year after the probate of the will and appointment of the petitioner as executrix,
the respondent judge required the petitioners to qualify as such and file a bond of P5,000. In response
thereto the petitioner informed the respondent judge that it was not necessary for her to qualify because
the heirs had already made an extrajudicial partition in accordance with the will, as shown by the copy of
said partition which she submitted to the court. In view of the answer to the petitioner, the respondent
judge ordered the executrix to qualify as such within forty-eight hours, and declared the extrajudicial
agreement of partition entered into by the heirs null and void, on the ground that the probate proceedings
having been commenced judicially it must also be terminated judicially.
I: WON the extrajudicial partition divested the court of its jurisdiction over the settlement of the estate
R: NO. the respondent judge or court of First Instance of Quezon Province, wherein the deceased was
residing at the time of his death, has acquired exclusive jurisdiction to settle the testate estate of the
deceased Daniel Marquez and over the heirs and other persons interested in the estate of the deceased
from the moment the application for the probate of the decedent's will was filed with said court and the
publications required by law were made; and the heirs of the deceased Marquez could not divest the
Court of First Instance of its already acquired jurisdiction by the mere fact of dividing and distributing
extrajudicially the estate of the deceased among themselves.
If the extrajudicial partition made by the heirs of the deceased was submitted to the court and
approved by the respondent judge after verifying that it does not prejudicially affect the rights of third
parties, the testate proceedings pending in the court would have been legally thereby terminated
Case of Rodriguez vs Borja
SC: The delivery of the will is sufficient for Jurisdiction to be acquired. Even if no petition is filed.
Except: estoppels by laches.
Rodriguez vs. Borja
F: Private respondents Pangilinan and Jacalan delivered the alleged last will and testament of Fr.
Celestino Rodriguez before the CFI of Bulacan for probate. Petitioners Maria and Angela Rodriguez
asked the court to allow them to examine the will. However, they immediately withdrew their petition and
instead filed a petition for settle of the intestate estate of Fr. Rodriguez before CFI of Rizal alleging that
Fr. Rodriguez was a resident of Rizal and that he did not leave any will. Private respondents challenged
the jurisdiction of the intestate proceedings on the ground that CFI of Rizal may not assume jurisdiction
over the action as the delivery of the will before CFI of Bulacan already vested with jurisdiction on such
court to the exclusion of the rest. It was stipulated by the parties that Fr. Rodriguez was born in
Paraaque, Rizal; that he was parish priest of the Catholic Church in Hagonoy, Bulacan, from the year
1930 up to the time of his death in 1963; that he was buried in Paraaque, and that he left real properties
in Rizal, Cavite, Quezon City and Bulacan.
I: WON CFI of Rizal can assume jurisdiction of the settlement of the estate even if a will was already
previously delivered before CFI of Bulacan
R: NO. The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any
other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case
of wrong venue, by express provisions of Rule 73of the Rules of Court. This disposition presupposes that
two or more courts have been asked to take cognizance of the settlement of the estate. Of them only one
could be of proper venue, yet the rule grants precedence to that Court whose jurisdiction is first invoked,
without taking venue into account. As ruled in previous decisions, the power to settle decedent's estates
is conferred by law upon all courts of first instance, and the domicile of the testator only affects the venue
but not the jurisdiction of the Court
11

Petitioners commencing intestate proceedings in Rizal, after they had learned of the delivery of the
decedent's will to the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter
court of the precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old
Rule 75) was not designed to convert the settlement of decedent's estates into a race between
applicants, with the administration of the properties as the price for the fleetest.
In our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since
intestacy only takes place in the absence of a valid operative will. as ruled in Castro, et al. vs. Martinez,
10 Phil. 307, "only after final decision as to the nullity of testate succession could an intestate succession
be instituted in the form of pre- established action". The institution of intestacy proceedings in Rizal may
not thus proceed while the probate of the purported will of Father Rodriguez is pending.
Q: if you think that the Court has no Jurisdiction to hear the case, how do you contest or challenge the
Jurisdiction of the Court? What is your remedy?
A:
For Jurisdiction is not clear in the records if the Court has Jurisdiction ordinary appeal
But if obvious (like the amount) you go to the Supreme Court on certiorari
Q: Can the Probate Court issue a writ of execution?

A:
GR: No. Because you only refer to the adjudication of claims against the estate which the
administrator or executor may center the executory process
Ang mo execute na ana, ang appointed administrator or executor of the will. Not the
Court. So writ of execution is not needed
Exceptions:
Case of Valera vs Ofilada
Valera vs. Ofilada
F: Mrs. Bringas sought to hold the heirs of the deceased Virgilio Valera liable for his obligations to pay
rentals and to account for the fruits of the properties forming part of the estate of Francisco Valera and
the war damage and insurance monies collected by Virgilio Valera. The heirs of Virgilio Valera were
dragged into the intestate proceeding for the purpose of holding them liable for the amounts supposedly
due from the deceased. As already noted, Mrs. Bringas prayed for "an order directing the Sheriff to seize
such properties of Virgilio Valera and his heirs . . . as may be sufficient, to be sold according to law for the
payment of double the value of the fruits and the amount of monies alienated and embezzled". Judge
Ofilada specifically directed that the execution be issued "against the heirs of Virgilio Valera". The Deputy
Sheriff literally followed that directive by levying upon "the goods and chattels of the heirs of Virgilio
Valera".
I: WON the lower court, sitting as a probate court in the intestate proceeding for the estate of Francisco
Valera, could hold the heirs of Virgilio Valera answerable for certain supposed monetary liabilities of the
latter to the estate and enforce said liabilities against the properties of the deceased Virgilio Valera.
R: NO. It is not supposed to issue a writ of execution because its orders usually refer to the adjudication
of claims against the estate which the executor or administrator may satisfy without the necessity of
resorting to a writ of execution. The probate court, as such, does not render any judgment enforceable by
execution.
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Judge 5 cited portion: The circumstance that the Rules of Court expressly specifies that the probate court
may issue execution (a) to satisfy the contributive shares of devisees, legatees and heirs in possession of
the decedent's assets (Sec. 6, Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule
90), and (c) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13,
Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that those are the only
instances when it can issue a writ of execution.
With particular reference to the sum of P4,784.96, which represents the insurance and war damage
monies allegedly embezzled by Virgilio Valera, the lower court, sitting as a probate court, had no
jurisdiction to enforce, by execution, the payment of double the value of that amount. The alleged
embezzler was dead. Execution was not warranted under Sections 7 and 8, Rule 87 of the Rules of
Court, which both refer, to a living person, meaning a person entrusted with a part of the decedent's
estate "by an executor or administrator", and to a person who committed "embezzlement before letters
(were) issued". Section 8 explicitly provides that the embezzler's liability shall be determined in "an
action", and not in the intestate proceeding.
Exceptions to the rule that Probate Court cannot issue a writ of execution
It may issue a writ of execution in the following instances:
(Bernardo page 157citing Vda de Ofilada case)
To enforce the contributive shares of the devisees or legacies or heirs when the later had entered
possession of the decedents properties in the payment of estates debts and expenses (Rule 88,
section 6)
(naka sud naman sila sa estate, ila nang gigamit pero naa pay utang ang estate)
To enforce the contributive shares of the parties in the payment of expense of the partition (Rule
90, section 3)
(walay namamayad nga heir pugson nimo ang heirs to pay for the expenses in the partition)
To satisfy the cost when a person is cited to appear and for examination in probate proceedings
(Rule 142, section 13)
(for examination in the Probate proceedings like when there is a witness presented and had
incurred expenses)
To enforce the liability of the distributes in favor of the heir unduly deprived of his lawful
participation in the distribution of the estate against the bond or real estate of the deceased or
both (Rule 74, Section 4)
Q: Does the Probate Court have Jurisdiction to determine damages filed by the heirs?
A: Diba RTC man na siya, general Jurisdiction na siya, so dili.
Legal Basis: De Borja vs De Borja et al G.R. No. L-6622. July 31, 1957
Syllabus
3.COURTS; JURISDICTION OF PROBATE COURT LIMITED AND SPECIAL. In taking
cognizance of a special proceedings for the purpose of settling the estate of a deceased person, the
Court of First Instance in its capacity as a probate Court is clothed with a limited jurisdiction which
cannot expand to Collateral matters not arising out of or in anyway related to the settlement and
adjudication of the properties of the deceased for it is a settled rule that the jurisdiction of a probate
Court is limited and special. Although there is a tendency now to relax this rule and extend the
jurisdiction of the probate Court in respect to matters incidental and collateral to the exercise of its
13

recognized powers, this should be understood to comprehend only cases related to those powers
specifically allowed by the statutes.
4.DAMAGES; COUNTERCLAIM; TESTATE OF INTESTATE PROCEEDINGS: MORAL
DAMAGES IS EXTRANEOUS MATTER From whatever angle it may be looked at, a counterclaim
for moral damages demanded by an administrator against the heirs for alleged utterances, pleadings
and actuations made in the course of a proceeding, is an extraneous matter in a testate or intestate
proceedings. The injection into the action of incidental questions entirely foreign in probate
proceedings should not be encouraged for to do otherwise would run counter to the clear intention of
the law.
11/2113
Estate could be settled judicially or extrajudicially, generally the estate of the decedent is settled judicially,
to protect creditors. However there are exceptions, especially when the decedent does not leave a will
and there are no debts as well. Extrajudicial settlement can also be resorted to when there is only one
heir, or even when there are several heirs, and they all agree among themselves to settle the will
extrajudicially. The exceptions are found in Rule 74:
1. Section 1- Extrajudicial settlement by agreement between heirs
2. Section 2- Summary Settlement of estates of small value (Ten thousand or less)
IMPORTANT Extrajudicial settlement could only be resorted when the decedent leaves no debt
If there is only one heir there is no problem, there is no conflict with anyone.
Q: if there are several heirs, is it mandatory that they should settle the estate extra judicially among
themselves?
A: only mandatory if majority or some of the heirs would insist on having the settlement of the estate.
Especially when they want to go to judicial process, then it cannot be mandatory.
If there is only one heir, then there is no problem as regards to the settlement of the estate
Requirements for adjudication of the estate by the sole heir (what should be done)
1. Execute an affidavit of adjudication of sole heir
2. Secure some other papers
a. Certification of the cultural company if he is a member, that he is a member of the
indigenous people cultural community (such as, a member of the Muslim community.)
3. Put up a bond equivalent to the value of the personal property
4. He must obey the decedents will
5. He must submit a subdivision plan complete with a survey plan and technical description of the
property left by the decedent if it is a real property
6. It must have all the monuments of title
a. Monuments of title are proofs of ownership, possession, rights over the estate, such as
tax declaration, title. Cause if it is registered in the Registry of Deeds, a new title will be
issued in your favor as an heir
7. Certification from the department of Agriculture and Department of Agrarian Reform Program
where the property is agricultural. Tenancy and all that must be issued.
8. That there are no debts left by the decedent
Appointment of Administrators or Executors

Q: Is an administrator or executor important in order to determine the extent of the estate for purposes of
paying the obligations of the decedent and thereafter if whatever is left, it would be the executor to effect
the division or partition or giving of the share of the estate to the theirs
A: if there are no debts, there is no need for an administrator or executor
14

-it would just be an extra expense since you need to pay them
It is only after the settlement or partition, where there will be claims of creditors or creditors are omitted,
then in which case they may open the case and ask for an appointment of an administrator for the
purpose of the payment of the creditors
Q: in extrajudicial settlement, there should no debts left by the decedent; otherwise, they must go through
the judicial partition, to determine the exact amount of the debt of the decedent. However, if there are
debts left by the decedent, as long as they are paid by the settlement of the estate, that would be alright
even if there are debts upon his death. Before the extrajudicial settlement is executed and registered in
the registry of deed, these debts are paid, it is ok
Payment of taxes
The BIR must be notified within 30 days from the death of the decedent that he died, and for a period of
six months from the date of the decedent to initiate the settlement of the estate.
Q: After you have registered the affidavit of adjudication, what would happen next?
A: There is publication that he adjudicated the property on himself that he executed an adjudication of
being sole heir
Q: for how long and where at?
A: once a week in three consecutive weeks in a place where the bulk of the properties are located
The heir could be legitimate or illegitimate, it could be an ascendant or descendant or collateral or she
can or he can be the surviving spouse of the decedent
Q: What is the requirement of the surviving spouse?
A: He or she must be the legal spouse. Otherwise, he or she (common law) cannot execute an affidavit of
adjudication of sole heir. However, he or she may petition for the property as co-owner. He or she cannot
acquire the property merely on affidavit of adjudication of sole heir. But as co-owner, he or she can.
Q: As regards to the case where the decedent left several heirs. What would then be requirements should
they extra judicially settle the estate?
A:
1. Monuments of title, Proofs of ownership ( such as tax declaration, title, public instrument or deed
of extrajudicial settlement)
Q: What if it is a private agreement among the heirs?
A: it is valid. Because a public instrument is merely evidentiary and does not affect the validity of
the agreement. But it may be changed or subjected to revocation because there is no proof that it
is the agreement of the parties. There may be instances that they will say that they did not agree,
especially in instances that the heirs were not part of the agreement. It may not bind them at all,
so it can be subjected to revocation if the document is private but does not affect the validity of
the agreement even if it is not notarized.
Q: What do you do with the public instrument?

A: You register it to the registry of deeds.
It is presumed that the heirs are all of age, those who signed the extrajudicial settlement are all of age.
Q: What if there are minors?
A: They must be duly represented by their legal guardian or judicial guardian, those appointed as such
accordance with the rules, to serve as the representative of the minor for that purpose.
15

Q: What if there are minors?

A: Then they must be duly represented by their legal guardian or judicial guardian, those who are
appointed as such in accordance with the rules of guardianship to serve as the representative of the
minor for the purpose insofar as the ages of the heirs.
You are also required to submit a subdivision plan, there are several heirs, because you are supposed to
describe the share of each heir in the property, complete with technical description.
And then, you also have to have a certification from indigenous cultural community, in accordance with
IPRA (Indigenous People Rights Acts), you have to have that certification that you are a member of a
cultural community or not.
Q: And what should the extra-judicial agreement contain?
A: The partition among the heirs of the estate of the decedent. It is always possible that they are
agreeable to the extra-judicial settlement of the estate
Q: But what if they cannot agree on the share? What would then be the remedy of the heirs who cannot
agree on exactly how much they would be getting from or how they should divide the estate of the
decedent?
A: Rule 69, Partition.
So, it may be agreed by the parties that they will divide but as to the exact sharing, they cannot agree.
Then, in which case, the remedy is Partition under Rule 69. This is however without prejudice to the heirs
who did not participate in the agreement.
Then the payment of taxes, by taxes we mean, the taxes in the property itself and the transfer of the
estate from the decedent to the heirs. All must be completely paid.
And then, of course, there is the publication, which is done once a week for 3 consecutive weeks, this is
to notify all the heirs, creditors, because the rule in settlement of estate is, those who have not been
notified are not binding upon them.
Where at? Where the petition is filed because it is where the decedent last resided or where the
properties are located, especially the bulk of the properties.
On bond. The requirement of a bond is only when it involves personal property and as regards to the
value, it should be equal to the value of the personal property left by the decedent or as it may be fixed by
the court if it cannot be ascertained, or it could be ascertained by the parties that that is the value of the
property.
Q: Why is it that only personal properties should be bonded? What about real property? What is the
assurance of the creditors?
A: The bond is required for personal properties because they can easily be disposed of and consumed.
So within 2 years from distribution, any claimant can still ask for the payment of whatever obligations the
estate may have to them and the bond may answer for it.
Q: What about real property?
16

A: There cannot be any problem with real property because the claimant can always have a lien, which
will be recorded, in the title itself. That will be a sufficient protection to any creditor. If it is belatedly
discovered that there has been a settlement of the estate, he can always make a lien on the property.
The bond will have to be delivered. Where at? Not to the court but to the Register of Deeds. Its a
requirement otherwise the Register of Deeds could not allow any distribution of the estate without the
bond. This is the assurance of the distributees, that in case in the future, there will be claimants, in the
period allowed by law, the bond will answer for it.
Now, as regards to the debts, at least they must be paid at the time of the extra-judicial agreement, it is
presumed that no creditor files a petition for letters of administration 2 years after death, in which case,
they can distribute if after 2 years, there is no creditor filing for a petition for letters of administration.
Q: Can you ask a declaration of heirs during the settlement of the estate?
A: If sole heir ka, no need, there is only one heir. If there are several heirs, TAKE NOTE, you may ask for
declaration of heirs.
Lets go through the process.
First, you have on the sole heir as regards to extra-judicial. Upon the death of the decedent, there will be
a division of the estate in a public instrument or affidavit of adjudication.
Thereafter, the public instrument, or the extra-judicial agreement or the affidavit of adjudication shall be
filed with the proper Registry of Deeds.
Then, there will be a publication of the notice of the fact of extra-judicial agreement and the execution of
the affidavit of adjudication.
So, you do not publish the agreement itself, its only a notice of fact of extra-judicial settlement or
adjudication by the sole heir.
And then, theres the filing of the bond, equivalent to the value of personal property.
Let us proceed to Section 2, summary settlement of estate of small value.
Q: Where do you file the petition?
A: MTC.
Q: Where in particular?
A: If the decedent is a resident of the Philippines upon his death, MTC of the provice where he last
resided upon his death. TAKE NOTE, amount is not more than 10,000, regularly its MTC. But if he was
not a resident of the Philippines upon his death, it depends on the location of the real property, MTC
where the bulk of his properties are located.
Q: Insofar as judicial summary settlement, what is the procedure?
A: First, there has to be the death of the decedent.
After his death, there will be an application for summary settlement where at? With the MTC, so its with
the court. TAKE NOTE, it is either with a will or not, with debts or not, usually if there are debts.
17

It will be with appointment of administrator or executor, if with a will, then it has to be an executor,
depending on the urgency kung wai utang then no need of executor, if there are no obligations and the
administrator is only important to protect the interest of the creditor.
Administrator is only important to protect the interest of the creditor. If there is none, there is point of
appointing administrator.
Q:After the application for petition for summary settlement, what will the court do?
A: the court will order the publication of the notice of the fact of extrajudicial settlement.
Q:When?
A: Once a week in three consecutive weeks in a newspaper of general circulation and direct all
interested person of the estate to appear on the initial hearing.
Q:When is the initial hearing set?
A: TAKE NOTE Not less than a month but not more than three months from the last publication.
Q: Then after what will the court do?
A: There will be a summary hearing on the petition. Usually you have the proving of the will, if theres a
will then you grant the allowance of the will and then determine who are entitled to the estate of the
decedent. If there are obligations the court will order the payment of the debts which are due and then the
court will fix the value of the bond if there are personal properties involved that is equal to the value of the
property. Then there will be partition of the estate. If they cannot agree, then the partition would be under
the rules on as regards on how it should be distributed among themselves.
TAKE NOTE about the consequence. Those who are not notified about the proceedings, they are not
bound by whatever was the agreement as regards the settlement of the estate.
TAKE NOTE:Q: After partition is done, what is.. for example.. they discovered that there are still debts,
what will happen? Will it affect the partition of the estate? What if later, you are a creditor, you only
discovered that the decedent died and he left an estate. What will you do?
A: You file a motion for re-opening of the summary settlement of the estate. But this does not affect the
division. The division is conclusive. The creditor may ask for the appointment of an administrator for the
payment of the credits.
Q: Can you ask for the judicial settlement of the estate instead of extra-judicial?
A: Only for good reasons you are allowed. But you are never precluded from making an extra-judicial
agreement on how to divide the estate of the decedent. This is however without prejudice to those who
are not present and those who have not participated in the proceedings that they can later claim rights to
the estate, that is the subject of the settlement.
Q: What will be the remedies of aggrieved parties against extra-judicial settlement or summary settlement
of the estate?
REMEDIES
st
A:(1 remedy) You can claim against the bond or the real property or both under sec. 4, Rule 74. If
theres undue deprivation of your participation in the estate, the existence of debts against the estate, or
undue deprivation of lawful participation, payable in money, the remedy may be availed only for within
two(2) years after the settlement and distribution of the estate.
But, if it was by reason fraud, the aggrieved party has 4 years reckoning from the discovery of fraud to file
the annulment of the proceedings.
Q: If at the time of the settlement, he was not able to participate because he was a minor and he had no
guardian to represent him or maybe he was at that time insane or maybe abroad, how long?
18

A: He has one (1) year from incapacity is removed (upon reaching age of majority), for insane, one year
from gaining sanity. 2 years after all is not the prescriptive period against a claim of the real property and
bond. Because it could be longer.
The point is 2 years after all is not the prescriptive period for claim.
nd
(2 remedy) TAKE NOTE, you also have Petition for relief of judgment as remedy under rule 38 on the
ground of fraud, accident, mistake or excusable negligence (FAME). So not just claim against the bond or
the real property subject to distribution.
Period: a petition for relief from judgment must be filed within: (a) sixty (60) days from knowledge of
judgment, order or other proceedings to be set aside; and (b) six (6) months from entry of such
judgment, order or other proceeding. TAKE NOTE OF REMEDIES.
rd
(3 remedy) Another remedy, Re-opening by intervention, within the reglementary period.

Q:Who is allowed to intervene with leave of court?
A: A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or
an interest against both, or is so situated as to be adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights
may be fully protected in a separate proceeding
Q:For how long? Within what period?
A: any time before rendition of judgment by the trial court., as long as it is within the reglementary period
of two years.
th
(4 remedy) New action to annul settlement

th
(5 remedy) Recission, when there is preterition, when he is a compulsory heir in a partition tainted with
bad faith, under Article 1104 of NCC.
th
(6 remedy) Action to Annul a Deed of Extra-judicial Settlement on the ground of FRAUD. It should be
filed within 4 years from discovery of fraud.
11/29/13
Rule 75- Production of a will (allowance of will)
Q: What is a will?
A: A will is an act whereby a person is permitted with the formalities prescribed by law to control to a
certain degree the disposition of his estate real or personal, to take effect after his death.
It is also known as donation mortis causa as opposed to donation inter vivos.
It may be classified either as a notarial will or holographic will.
The difference between a notarial will and a holographic will:
1. As to form: in a notarial will, it could be typewritten or handwritten, but it has some specific form
that must be observed. Such as it must be signed and subscribed by the testator himself and the
instrumental witnesses in each page, there is an attestation clause, there must be an
acknowledgment by the notary public. In short it is formal, while a holographic will, it is
handwritten by the testator himself, it must be dated and written by the testator himself and he
can make it inside or outside the country. The important part is that he placed the date and
signed it.
TAKE NOTE: There cannot be any transfer of properties to any of the decedent's heirs, legatees or
devisees without having it probated
19

Q: What is Probate?
A: It is the act of proving the due execution of the will before the court by a person of testamentary
capacity.
It is the process of presenting before a judicial tribunal, a document alleged to be the the last will and
testament of a certain deceased and proving its execution and authenticity
Q: What do you prove?
A:
1. Person was competent, has testamentary capacity to dispose of his estate.
2. The due execution of the will
There must be approval of the court in order to effect the probate
The purpose of which is for judicial recognition. It is important so that the probate can be registered and to
carry out the provisions of the will in accordance with law.
The nature of the estate proceedings is mandatory. No will should pass either real or personal estate
unless it is proved and allowed in the proper court, subject to the right of appeal. Such allowance of the
will shall be conclusive as to its due execution.
The moment it is approved by the court, it is conclusive as you will have the probative value of the
probation. It is conclusive as to its due execution. However, limited only to the extrinsic validity of the will,
it does not include the intrinsic validity of the will
Q: What is the difference between the extrinsic validity and intrinsic validity?
A: Extrinsic validity refers to:
(Things you need to prove in the probate court)
1. Testamentary capacity of the testator
Was he sane?
Even if insane, it does not affect the validity of the will, as long as he can prove that at the
time of the sound execution he is of sound mind
He may be imbecile but not totally insane
As long as it is proved that at the time of the execution he is of sound mind then he is
competent to make the will
2. The authenticity or the genuineness of the will before going to the testamentary capacity of the
testator
-tinuod kaha ni nga last will and testament. Cause it is possible that the last will and
testament may be amended by another subsequent or second will. Later, they may find
another last will and testament. It must be one of the things that need to be checked. Is
this last will and testament the final one? Because even if there may be subsequent will
thereafter, it does not necessarily nullify the probate of the first will. Because it may just
be an amended not a total nullification of the first will. There may be some changes in the
second will.
3. The form
Was it executed in the prescribed form as required by law?
It has to be signed every page
That there is attestation clause
Acknowledged as regards to the requirements of a notarial will
A holographic will must be dated and handwritten by the testator
4.
Prove due execution
20

Was he forced to sign the last will and testament?

Was it attended by fraud?
Was there a mistake in signing the last will and testament
Q: When do you look for the intrinsic validity?Is there a chance for the probate court while allowing or
proving a last will and testament to look into the intrinsic validity?
Intrinsic validity looks into the validity of the provisions of the will
When the probate court can look into the intrinsic validity of the will:
Questions on who are the real heirs of the testator
Questions of disinheritance and preterition
On someone who is a compulsory heir but who is omitted
Q: Difference of pretirition and disinheritance

A: Pretirition omit a compulsory heir; Disinheritance disinherit any heir, not necessarily a compulsory
heir
Intrinsic validity comes after proving that the will is extrinsically valid. Once you have established that,
then you can go now to the intrinsic validity of the will. If you cannot prove the extrinsic validity of the will,
it cannot proceed to the determination of the intrinsic validity of the will.
As to the characteristics of the probate of proceedings (nature of probate proceedings)
1. It is mandatory
2. It is a proceeding in rem
It binds the whole world
Precisely the publication of the hearing, the setting of the date, time and place of the
hearing of the probate of the will in order to bind the whole world
Q: What is the requirement on publication?
i. Once a week for three consecutive weeks
ii. TAKE NOTE: in notarial will, not only that it needs to be published, there
must be an order notifying the heirs, the legatees and the devisees.
-This is Mandatory
Q: When do you notify them?
A:
Registered mail -20 days before the scheduled hearing
Personal service -10 days before the scheduled hearing
Q: What if after publication, they found out there are additional heirs, do
you need to republish again and modify the first publication?
A: Need not be. The first publication is sufficient to notify the whole world
3. It is imprescriptible
-it does not matter kung kanus.a pa namatay ang testator, as long as a last will and
testament is found, it can be probated
-it is possible that they did not know that the testator had executed a last will and
testament so they proceeded to an intestate proceeding to settle the estate. So possible
nga ulahi na ka au nga makit.an ang last will and testament. So you can file the probate
priority to the last will and testament. It is given preference to the intestate proceeding.
The probate and the intestate proceeding will just be consolidated in one probate.
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-Kung pananglitan imprescriptible, notarial will anytime even if it is lost or destroyed, it
can still be probated and any person interested in the disposition of the estate of the
deceased can ask for the probate of the will.
-Especially if notarial, you can always ask for copies from some people, example from a
custodian or probably left with the notary public, although it is not required that the lawyer
should get a copy of the last will and testament
For holographic will

-while it is true, that you may file it anytime, have it probated. But once lost or destroyed, as a general
rule, it cannot be probated anymore. Cause how can you determine the hand writing? The court said,
unless there is a Xerox copy of the holographic will, and then you may have an expert witness to testify
on the handwriting, whether or not it is that of the testator
TAKE NOTE: Estoppel does not apply. Because basically, the probate of the will as a matter of policy is
to protect the interest of the testator, to respect his wish in so far as the disposition of his estate. That will
should be carried out.
TAKE NOTE: Basically, the probate of the will is to protect the interest of the testator. To respect his wish
insofar as the disposition of his estate and that wish will be carried out.
[TAKE NOTE]Q: With regards to the matter of delivery of the last will and testament. Can they have the
will probated even without petition?
A: What is important is there is delivery only. The probate court now has the obligation to take action.
Q: who is going to deliver the last will and testament?
A: It will be the executor named in the last will and testament.
Q: When does he deliver it?
A: 20 days from the knowledge of the death of the testator or 20 days from the time that he knew that he
was appointed as executor of the estate.
Q: Who is an executor?
A: One who is given the authority to distribute the estate in accordance to the provisions of the will.
Q: What else is the duty of an executor aside from delivering the will?
A: He must also manifest whether he is accepting or refusing the appointment.
Q: When?
A: Also within 20 days from the time he has been designated as an executor.
Q: What if, for example, the custodian (who is not necessarily and executor) or executor does not deliver
the will despite the demand?
A: He can be fined for P2,000 or worst is imprisonment.
Q: What is the nature of the proceedings if he fails to deliver the last will and testament despite the order
of the court?
A: It is by nature criminal. This is a special penal offense. You can be put to jail unless you agree to
deliver the last will and testament. That is how important the production of the last will and testament
because there cannot be a factor of any right with respect to the property of the testator to the heir without
it being probated.
Q(student): What if nawala?
A: Then you have to explain it to court. If you cannot explain to the court the reason then you can be at
least fined or you can be put to jail.
Q: What if there is only one heir instituted in the last will and testament, is probate of the will mandatory?
22

A: Yes, because there cannot be a transfer of property with probate. There has to be an order of the court
that the properties named in the last will and testament is given to the sole heir. So regardless if there is
only one heir, probate is needed.
ALLOWANCE OR DISALLOWANCE OF A WILL (Hearing of the court)
Q: When you say allowance of the will, what do you mean by that?
A: To show proof of the validity of the last will and testament of the testator.
Q: Who are then the persons who can file a petition for allowance of the will?
A: During his lifetime, is the testator himself.
Q: What is the significance if it is during the lifetime of the testator? Why is it important to have it probated
before he dies?
A: It minimizes error or duress or fraud in the last will and testament or if he has not followed the required
forms under the existing laws. That is the advantage. And there is no need of publication. All that is
needed is to notify the compulsory heirs, not even the voluntary heirs such as legatees and devisees.
Q: What is the difference between the legatee and devisee?
A: Personal property- legatee; Real property- devisee.. however they need not be notified if the probate
is done during the lifetime of the testator.
Q: If the executor is named in the last will and testament which is to be probated, is there a bond to be
posted?
A: Need not.
Q: If after his death, who may file a petition for the allowance of the will?
A:
Persons who may file a petition for allowance of the will:
D-devisee
E-executor
L-legatee
T- testator (only during his lifetime applicable as discussed)
A-any person who may have interest in the estate
Q: Who could be the persons who may have interest in the estate?
A: Creditor and the heirs.
Q: Who is this creditor?
A: It has to be established by the court that he is a creditor of the decedent. You go there to be
considered as a person who is interested in the probate of the will.
12/05/13
Will can be notarial or Holographic. After it is produced it will be submitted to the court.
Manner of probating 1. Deliver the last will and testament and court will acquire jurisdiction and set the
time and place of hearing 2. Through a petition with the court
Q: Who are the proper parties?
A: Sec. 1 Rule 76.
1. Executor
2. Devisee
3. Legatee
4. Any other person interested in the estate
5. Testator himself
Q: Who are the compulsory heirs as defined by the law?
A: Art. 887, 276, 1010 NCC.(Succession)
23

Q: in so far as creditors are concerned?

A: You have to establish that he is indebted to this person to show that he is a proper party to the
allowance of a will.
Q: Who is an executor?
A: is a person named or appointed by the testator in his will to execute the provisions of his will.
Q: Who is a legatee and a devisee?
A: Devisee is a person to whom REAL property is given by a will.
A: Legatee is a person to whom PERSONAL property is given by a will.
YOU TAKE NOTE OF THAT.
Q: There are 2 kinds of probate or allowance of a will.
A: During the lifetime of the testator and after death. If during the lifetime there isnt much controversy
there, the only advantage there is that when there are things to be corrected he can correct them to make
sure the disposition will be followed and it is in accordance with the law. So there is less fraud that will be
committed if it is probated during the lifetime.
Q: Now if it is after the death of the testator, when do you petition for the probate or allowance?
A: There is no period. Anytime after the death, it is imprescriptible. Even after the petition is dismissed,
there is no bar to the filing. Res judicata does not apply. Because the policy of the State is for the
protection of the interest of the testator with respect to his last will with the disposition of his property. The
court has the obligation to comply with the policy of the State.
Q: Now, upon the death of the Testator, when do you petition for probate or the allowance of the Last Will
and Testament? When?
A: There is no period, any time after the death of the testator. It is imprescriptible. Even if after the filing,
the petition was dismissed because petitioner did not appear, during the initial hearing, there is no bar to
its refiling. Res judicata does not apply. Always remember that because the policy of the State is to
protect the interest of the decedents last will and the disposition of his properties that even after the
death, his control over his estate must be respected by the State.
In section 2, when you file the petition, TAKE NOTE, there are certain things that you need to allege.
First, you have the jurisdictional facts.
Q: What are these jurisdictional facts?
A: First and foremost, you have to state there the death of the Testator, because there cannot be an
allowance if hes still alive. In fact, that is a ground in order to oppose to an allowance of the Last Will and
Testament because the Testator is still alive and kicking.
Q: What else do you need to consider?
A: As to his being a resident of the country. If hes a resident where at because thats jurisdictional, you
have to file it in the court upon or where he died or his residence immediately before his death. Or if he is
not a resident of the country, you have to state there also that he has property and his property is located
in the province where the court is hearing the petition for the allowance of the last will and testament.
And then, you have to consider also that there was notice. A copy of the petition was furnished, to whom?
To the designated or known heirs. It has to be stated there in your petition, or to the legatees, devisees,
as well as the executor. That has to be alleged in the petition.
Thus the question, what if for example, you do not know the addresses of the heirs, and thus you failed to
furnish them a copy of the petition because it is a requirement, especially if it is a notarial will that is being
24

allowed. Aside publication, there is also a requirement of notice to the heirs, legatees and devisees of the
Testator or the Decedent.
Q: What if you dont know the address, would that be fatal to your petition. If it is stated there unknown
address but the name of the heir is stated there would that be fatal?
A: If there is no notice sent or no allegation of that fact that notice was sent. TAKE NOTE that according
to Section 4, that is merely procedural and non-compliance as long as it does not cause any prejudice to
anyone, it is still considered as harmless and it will not cause a dismissed of the petition for allowance.
This is the case of Joson vs Nable . This is an old case guys.
Joson vs Nable
F: Petitioners, Purificacion M. Joson and Erotita M. Joson, are the daughters of the deceased, Tomas
Joson, had with his second wife, Pomposa Miguel, also deceased. The respondents, surnamed Joson,
are the children and grandchildren of the deceased, Tomas Joson, had with his first wife, Eufemia de la
Cruz, also deceased. A petition was filed with the CFI of Nueva Ecija for the probate of a supposed will
left by the deceased Tomas Joson. In that petition the residence of petitioners herein was given as
Dagupan Street No. 83, Manila. An order was issued by the court notifying all interested parties that the
hearing of the petition would take place on August 22, 1945 at 9 o'clock in the morning and said order
was published in the Philippines Free Press once a week for three consecutive weeks. The petition was
called for hearing on the date and time above-mentioned, and nobody appeared to contest the will.
Evidence was introduced to prove the authenticity and due execution of said will by the deceased
Tomas Joson, and on August 22, 1945 a decision was rendered finding the will to have been executed
by Tomas Joson in accordance with law. No appeal was taken from this decision and the regular
course of the proceedings was followed for the liquidation and distribution of all the properties left by the
deceased. Three years after, petitioners filed a petition to annul the decision on the ground that the
court did not acquire jurisdiction to allow the will since the abovementioned address is wrong, and
therefore, they were not notified of the hearing of the probate of the will, relying on Section 4 Rule 77.
I: WON probate court acquired jurisdiction over the testate proceedings despite lack of individual
notices to the petitioner heirs.
R: YES because the sending of notice is a matter of mere procedural convenience as compared to
publication which is jurisdictional. If the allegation of the petition was wrong and the true residence of
petitioners was not known, then notice upon them individually was not necessary. Under the provision
above-quoted, individual notice upon heirs, legatees and devisees is necessary only when they are
known or when their places of residence are known. In other instances, such notice is not necessary
and the court may acquire and exercise jurisdiction simply upon the publication of the notice in a
newspaper of general circulation. What is, therefore, indispensable to the jurisdiction of the court is the
publication of the notice in a newspaper of general circulation, and the notice on individual heirs,
legatees and devisees is merely a matter of procedural convenience to better satisfy in some instances
the requirements of due process.
What is indispensable is publication. There has to publication, may it be notarial, it has to be through
publication in a newspaper of general circulation. By general circulation, we mean, it may not be a
newspaper of large subscribers because only local newspaper. Here, local newspaper could be only in
the place where he is a resident of or province/city where he is a resident of or where his property is
located.
Q: For how long?
A: Once a week for 3 consecutive weeks, and that is indispensable, jurisdictional. When there is no
publication that could mean dismissal of the petition.
Q: Aside from that, what else do you need to allege in the petition?
25

A: The names, ages, residences of heirs, legatees, devisees of the Testator/Decedent.
What if for example, you caused the publication of the initial hearing, however, not all the names of the
heirs were mentioned in the petition and somebody appeared and claimed to be an heir, additional heirs.
Does the court lose its jurisdiction because at the time of the publication name of the heir is not included.
The answer is NO.
Or even if they were not notified because there was already a publication and publication here practically
is a notice to the whole world.
That is precisely why the probate proceedings is in rem by nature.
Q: What else that you need to allege in your petition?
A: The probable value and character of the property of the estate. You have to enumerate all the
properties, personal or real properties and their estimated value.
Q:What should be alleged in the petition?
A:
1.
Enumerate all the properties from real properties to personal properties and there
estimated value. Maski karaan pa na nga sewing machine, it has to be stated in the petition.
Not just real properties, title covering the estate. The name of the person for whom letters are
placed
Q: What is the difference between letters testamentary and letters of administration?

A: Letters testamentary
-there is a person named in the last will and testamentary who should manage and distribute the estate of
the testator
-testamentary settlement
Letters of administration
-is independent from the allowance of the will. It is usually in a case where it is intestate. So here is a
petitioner who will volunteer to manage the estate of the decedent, and prove his qualifications and the
court will issue the letters of administration to the person in order to manage and distribute and settle the
estate of the decedent.
-intestate settlement of an estate
2. Then there must be the allegation that the will has not been delivered to the court or the
name of the person having the custody of the last will and testament
Q: What if not all of these are alleged in the petition? Will it render void the proceedings of the allowance
of the last will and testament or the issuance of debtors of testamentary or the administration with the will
annexed. Would it?
A: No. as long as there is a will annexed. Even without the will annexed because it was lost or destroyed
especially if holographic will. It can go on as long as you can prove later on the existence of the last will
and testament, notwithstanding its lost or destruction during the lifetime of the testator. Or probably, even
if there may have been a probate of the will before, because it is possible that there is a subsequent will
found, this is not to prejudice to the finding of the new will because the will probated can be revoked by a
new last will and testament. So it is possible then that after the probate of a will, another new will can be
probated to prove that this is the real will, not the other one. Or you can still prove that this revocation is
void therefore the first will that was probated was valid.
26

Q:When the probate of the will is filed by the testator himself during his lifetime, the requirement is:
A: No publication required. All that is needed is notice to the compulsory heirs as to the date of hearing,
time and place.
Q: Is it required for the testator, directing that an executor serve without bond
A: no bond is needed if he does not state that in his last will and testament.
Section 3. this is with reference to the date, time and place of hearing of the probate of the will. So upon
receipt of the petition the clerk of court will just go over the allegations of the petition and the annexes and
if the petition complies with the requirements, then there will be a setting for initial hearing, that initial
hearing must be published in the newspaper of general circulation. Here, you will have an initial hearing
called. And the petitioner then will establish that the court has jurisdiction over the petition.
Q: what will then be established? (what is to be presented)
A:
1. Presentation of the petition
2. Presentation of the order itself directing the initial hearing
3. The notice of hearing being sent to all the parties made to be notified
4. the affidavit to publication
5. newspaper clippings
The moment the court is satisfied on the documents being presented, the court will then admit the
evidence. Then, it will be set for reception of evidence of the petitioner.
Q: Things to be proved during the trial:
A:
If it is a notarial will and uncontested, you need to present the will itself and prove that it exists given the
fact that you have already established the fact of the death of the testator. ( you need to prove the
extrinsic validity, its due execution, testamentary capacity of the testator), needs at least one of the
subscribing witnesses.
If it is a holographic will and uncontested, it needs the testimony of one witness who knows the
handwriting and signature of the testator.
If it is a notarial will and contested, all the subscribing witnesses and the notary public before whom the
will was acknowledged must be produced and examined.
If it is a holographic will and contested, needs 3 witnesses who know the handwriting of the testator.
12/06/13
So basically as we have explained there must be an allowance there cannot be disposition of any
property. Now then even if there is only 1 heir named as a successor to his property still the last will ans
testament must be probated. What we discussed last time is what is needed for the allowance of the will.
We explained that it is limited to the extrinsic validity through presentation of evidence. Like you must
produce witnesses to testify that the testator is capacitated to make the will, that there was no force or
duress when making the will. If it is a holographic will, especially when probated during the lifetime, the
testator must testify as to his handwriting and signature that it is genuine. So when it is contested, when
you have to present 3 witnesses you have to have all the instrumental witness who attested to the
execution of the will presented in court. As well as the lawyer who the will was attested to before.
27

Q: If the witnesses live so far from the courts or dead, how do you prove the due execution?
A: it could now be any witness so far as they are COMPETENT and CREDIBLE. If it is holographic, there
can be just one witness to attest to the handwriting.
Q: is there any way of probate when the will was lost or destroyed. Can you proceed with the probate?
A: Yes, especially when it is a notarial.
Q: what do you need to prove the existence and execution of the will?
A: the instrumental witnesses, who can testify as to the due execution of the last will and testament during
the lifetime of the testator and the loss or destruction of the will during the lifetime of the testator without
the testators knowledge.
Q: What about the holographic will? Is there a point where you need to attest the handwriting. When it is
lost, there can be no probate, unless?
A: You can produce a Xerox.
Gan vs. Yap
F: Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving
properties in Pulilan, Bulacan, and in the City of Manila. Fausto E. Gan initiated these proceedings in the
Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the
deceased. Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had
not left any will, nor executed any testament during her lifetime. The will itself was not presented.
Petitioner tried to establish its contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies show that
Felicidad Esguerra intended to make a will and they themselves have seen the will. After hearing the
parties and considering their evidence, the Judge Ramon R. San Jose refused to probate the alleged will.
I: WON a holographic will be probated upon the testimony of witnesses who have allegedly seen it and
who declare that it was in the handwriting of the testator?
R: NO, a holographic will may not be probated on the basis alone of the testimonies of witnesses without
presenting the will itself. The courts will not distribute the property of the deceased in accordance with his
holographic will, unless they are shown to be his handwriting and signature.
Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted
to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses of a
notarial will would be sufficient, if there is no opposition (Sec. 5, Rule 77). If there is, the three must
testify, if available. From the testimony of such witnesses (and of other additional witnesses) the court
may form its opinion as to the genuineness and authenticity of the testament, and the circumstances
of its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since
as stated, they need no witnesses; provided however, that they are "entirely written, dated, and
signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard, since it could at any time,
be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In
the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it
necessary, expert testimony may be resorted to."
28

The witnesses so presented do not need to have seen the execution of the holographic will. They
may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with other writings or letters of
the deceased, have come to the conclusion that such will has not been written by the hand of the
deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its
own visual sense, and decide in the face of the document, whether the will submitted to it has indeed
been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity the testator's handwriting
has disappeared.
Rodelas vs. Aranza
F: The probate court ordered the dismissal of appellant's petition for the allowance of the holographic will
of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will which was
presented for probate, cannot stand in lieu of the lost original, for the law regards the document itself as
the material proof of the authenticity of the said will, citing the case of Gan vs. Yap
I: WON a holographic will which was lost or cannot be found can be proved by means of a photostatic
copy.
R: YES it can still be proved by means of a photostatic copy.
A photostatic copy or xerox copy of the holographic will may be allowed because comparison can be
made with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled
that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise,
it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the
photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the probate court.
Q:Whether it is a notarial or holographic there must be 2 credible witnesses. So who are these 2
witnesses?
A: Credible witnesses mean competent witnesses and not those who testify to facts from or upon
hearsay. It must be their personal knowledge of facts to testify the due execution.
Q: Once the court is satisfied that the last will and testament exists, duly executed, in accordance with the
law, and that the testator at the time of its execution was of sound and disposing mind, the court then will
ALLOW the will. So there will be then a judgment rendered signed by the clerk of court certifying the due
execution of the will. This is what you call CERTIFICATION OF ALLOWANCE.
Q: So then what will you do with the certification?
A: You will file it with the Register of Deeds where the property lies. So that it will be annotated in the titles
and transferred of ownership from the decedent to whoever was stated in the will. You will submit letters
of administration or testamentary letters. And copies of the last will as allowed by the court.
Q: If the will has already been probated outside the Philippines, can you then, if he has properties
included in the last will and testament located in the Philippines? Lets say for example, he bought a
condominium in Cebu City, however he is a domicile of America, he died in America he then left a last will
and testament and that last will and testament was already probated a court in one of the states in
29

America. Can that last will and testament, for the disposition of the condo unit in Cebu City, used as basis
insofar as the administration of the condominium by the administrator or executor appointed by the last
will and testament? It was already probated, it was already found to be valid and duly executed with the
law of the foreign country. So it stated there that the administrator/executor has the power to administer
the property located in Cebu City.
A: No, it is beyond the territorial jurisdiction of the court that probated the will. The reason why is needs to
be reprobated in the Philippines is because the foreign judgment cannot by itself have extraterritorial
effect. In fact we dont take judicial notice of foreign judgment and you have to apply the rules where you
have to prove that there is such a foreign judgment. Similarly you have to prove that there was a foreign
probate of the will. That the will was executed in accordance with the law of the foreign country and the
probate was in accordance with the rules of the foreign country. And that the court is a probate court and
legal requirements have been complied with by the petitioner for the allowance of the will. All these have
to be testified and proven in the Philippine courts. So what should be done here?
A: Case involving a property in Texas. The wife and the son were appointed as the administrators. So the
son went to the Philippines to sell the condominium. He went to the RD, but the RD said you cannot sell it
because unless you have authority. The son said he has authority because I have the letters
testamentary that was issued by the court of Texas in my favor approving the last will and testament of
my father.
Q: Would that be enough?
A: The RD said you cannot do that because you need to have the last will and testament of your father
reprobated before any of the RTCs here in Cebu because the condominium is located here in Cebu. So
he filed the petition to have the last will and testament reprobated. It is actually not as tedious as when
you have a last will and testament originally probated in the Philippines. It is just a confirmation.
Q: So, what is needed here guys?
A: The petition, an authenticated copy of the last will and testatement.
Q: How is it authenticated?
A: You have a lawyer in America who will be at the subsequently authenticates the will. Their probate
there is easier, you just fill in the blanks. Their judgment is just one page, fill in the blanks. Now the
judgment of the probate court of the court of Texas, it can be authenticated through the Clerk of Court of
the probate court in America. It has notarized by a lawyer in America and then authenticated by the
Philippine Embassy. Thereafter you will submit it to the court where there is a reprobating of the last will
and testament.
Upon filing of the petition, the court will then set the case for initial hearing, there will be a publication in a
newspaper of general circulation just like the probate of the last will and testament, only in this case, it
was already probated outside the country.
On the matter of JURISDICTIONAL FACTS (Matters to be proved)
1. proof of the fact that the decedent is domiciled in another country and he has a last will and
testament
that was probated and complied with the rules of the last will and testament of the
country where he executed it.
2. That there exist such law, governing rules on probate and that the court that that hears the
case is a probate court.
Q: What will happen next?
A: Affirmation, you simply affirm that it is a valid will since it was already probated, therefore there is no
more question as to whether it is really the will of the testator.
Q: The source of authority of the executor:
A: Testamentary letters and letters of administration
30

Q: Difference:
A: Testamentary Letters- It is the testator who nominates and it is approved by the court while in letters of
administration, ordinarily there is no last will and testament and any person can apply as the
administrator.
There is an instance when a letter of administration is issued notwithstanding the fact that there is already
a testamentary letters especially when the executor named in the will refuses to accept or the one
designated by the testator is not qualified.
Q: Is the testamentary letters in a foreign court effective in the Philippines?
A: Generally, under the concept of domiciliary administration, they have general administration over the
estate if found with in the territory where the will was probated. Outside it's territory it has no effect, the
court where the will is reprobated may appoint an administrator, which is called the ancillary administrator.
Q. Is the appointment final and executory?
A: No, it is appeallable
Q. What is the effect of a probated will in a foreign country, when it is reprobated?
A: The will shall have the same effect as if it was probated in the country and letters of administration or
testamentary letters with the will annexed shall extend to estate found within the Philippines. Such estate
after payment of the last debts and expenses of administration shall be dispensed with according to the
will and whatever is left shall be disposed with in accordance with law.
Rule 78
The letters testamentary and of administration
The letters testamentary is issued to the executor named in the last will and testament
The letters of administration is issued to the administrator to the estate where there is no last will and
testament usually. There are two names, letters of administration and letters of administration with an
annexed will. If there is a will but there is no executor named or if the executor did not accept the
appointment or nomination of the testator or if the executor is disqualified.
There are 3 Authority of Administration that may be given: TAKE NOTE:
Letters testamentary on executor
Letters of administration of the estate of the decedent who did not leave a last will testament
Letters of administration with annexed will
Section 1 Rule 78.
Disqualifications for appointment of executors or administrator
1. Minor (17 or younger)
2. Not a resident of the Philippines
3. Or if the opinion of the court (this is discretionary) unfit to execute the duties of the trust by reason
of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of
an offense involving moral turpitude
Improvidence lack of skill or foresight in the management and care of the estate
(in other words way buot)
Want of understanding lack of intelligence
Lack of integrity lack of soundness of moral principles
Moral turpitude anything that is done contrary to justice, modesty or good
morals (Example: convicted of rape or murder)
31

TAKE NOTE
Q:Who is an executor or administrator (what is the difference)
Executor
Administrator
-one who is nominated by the testator approved by
-one appointed by the court
the court
-always regular (no contest as to who will
administrate the property since nominated by the
testator)
-could be regular or special
-if you are the executor, especially when you knew

that you were nominated by the testator as
executor and the copy of the last will and testament
is left to you. You should present it to the court
within 20 days from the knowledge of the death of
the testator.
Usually the appointment of a special administrator,

there is opposition or contest to the applicant nga
magpa administrator. In order not to prejudice the
disposition of the estate of the testator, while the
case is being heard whether or not the person who
wants to be appointed to be administrator is
qualified, the court may appoint a special
administrator. This special administrator is the one
who oversees the properties while the court
decides whether or not the applicant for
administrator is qualified. At least there will be
someone for the meantime while the hearing of
who will be administrator is pending. Pero, it will
just complicate things, I dont usually appoint a
special administrator. I always wait for the decision
or appointment of who will be the regular
administrator kay complicado especially when he is
not the same pplicant or if he is the applicant daun
kontra siya sa tanan. So I would not like to preempt that there is a judgment as to who is the
administrator
Q: Is that duty given to an administrator? (to

present the last will and testament)
A: Certainly not. Wa pa gani siya na administrator,
malay niya if naay last will and testament.
Another difference, as regards to requirement of bond. Because as a requisite of one who is given the
authority to administrate the properties, there is guarantee that the property of the decedents is
protected.
-if in the last will and testament, the testator does

not require the executor to put up a bond, then he
is exempt
-there is always a bond required by the court
-if the executors compensation is stated in the last

will and testament then it will be followed. Charged
by the estate. There is always compensation. Part
of the expenses of the testate
-there is always compensation
32

12/12/13
Q: Assuming that a petition for the issuance of letter of administration is filed or there has been the
issuance of testamentary letters, how do you file an opposition or objection?
Letters testamentary and letters of administration.
Q: When is this issued?
A: Letters testamentary are issued only when theres an executor or administrator named in the last will
and testament. It presupposes the existence of a last will and testament and which is probated and
thereafter the court issues the Letters Testamentary so that the executor can now start with the
administration and distribution of the estate thereafter.
Q: Now, do you file the opposition if it is already issued? And on what ground can you file? Who can file
it?
A: Where there is no last will and testament or even if there is one, however the executor is disqualified,
you may apply for a letters of administration while it is filed or you filed an opposition, and on what ground
can you oppose.
First, let me take up on letters testamentary that may have been issued by the court in accordance which
the last will and testament.
Q: On what ground and who can first file it?
A: Any interested person.
Q: Who is the interested person?
A: It could be anyone who have claims against the estate of the decedent.
Q: Who could that be?
A: It could be heirs, voluntary or compulsory, a legatee or devisee, or if he is a creditor of the decedent.
You must have one who has direct and material interest in the estate of the decedent.
Q: Is it possible for one whose interest is only contingent? Meaning it all depends on the result of an
action that was previously for example, filed against the estate, originally against the decedent, he died,
now against the estate.
Now, can he be also an interested person to file an opposition to the petition or otherwise object to the
letters testamentary issued by the court?
A: Generally, it is only when he has a direct and contingent interest in the estate thus there is one case I
want you guys to take note, this is now the case Veraguth vs Montilla, where even contingent interest
may be warranted in order that he may be interested to file an opposition against the issuance of a letter
of administration or letters testamentary.
Veraguth vs Montilla
F: Petitioners shareholders of Isabla Sugar Co., Eugenio Veraguth and Bonifacia Montilla were appointed
administrators of the estate of the deceased Manuel Abello. The respondents who are the widow, Rosario
Montilla, and the children of the deceased filed their opposition to their appointment as administrators on
the ground that they are not creditors of the deceased as the case filed by the stockholders against the
deceased (liable for the inequitable and illegal increase, partition and possession of the shares of the
Isabela Sugar Company, Inc., and is severally liable for the value of the 90 shares of the same
corporation issued without payment, that the plaintiffs are principal stockholders and that the board of
33

directors of the said corporation refuses to bring the corresponding action) was still pending before the
CFI of Negros Occ. and that the relief sought therein by the Eugenio and Bonifacia against the deceased
does not bring any direct benefit to the defendants but to the defendant corporation Isabela Sugar Co.,
Inc., the latter being the supposed creditor pursuant, wherefore, it is the only one authorized to
commence the intestacy of the deceased if this were otherwise proper.
I: WON, after the extrajudicial partition of the properties of a deceased person, an administrator thereof
may be appointed to represent the intestacy in a civil case wherein said deceased was one of the
defendants, for damages and the possession of certain properties of a corporation, the shareholders of
which are those who have applied for the administration of the properties of said deceased.
R: YES. The appellants having admitted, as above stated, the existence of the complaint against the
deceased Manuel Abello, who was one of the defendants, for damages and the recovery of the value of
certain shares, said complaint is unquestionably a contingent claim in contemplation of sections 6 and 7
of Rule 74 of the Code of Civil Procedure.
" . . . The word 'contingent,' as used in the original English in the Code of Civil Procedure,
conveys the idea of ultimate uncertainty as to the happening of the event upon which liability will arise;
and it is not the precise equivalent of the Spanish word 'eventual' by which it is commonly translated. The
idea involved in the word 'eventual' may be satisfied with the idea of that which is uncertain only in
respect to the element of time. A thing that is certain to happen at some time or other will eventually come
to pass although the exact time may be uncertain; to be contingent its happening must be wholly
uncertain until the event which fixes liability occurs." (E. Gaskell & Co. vs. Tan Sit, 43 Phil., 810, 813.)
Q: Specifically now on grounds for objection against letters testamentary, assuming that you are an
interested party on what ground can you object the issuance?
A: The executor named in the last will and testament is incompetent or disqualified under the Rules.
Lets say for example, he may only have adverse interest in the estate because he is indebted to the
estate of the decedent or if only under 18 years of age. Or has been convicted of a crime involving moral
turpitude.
Remember, the disqualification on the appointment of an administrator.
So, its always based on competence
Q: But if it were a petition for letters of administration, on what grounds may you oppose?
A: still on incompetence or the qualifications of the petitioner for the letters of administration basically on
his interest in the estate. He should have interest that is not adverse to the estate.
Lets say for example, hes a debtor, or he cannot be relied on if appointed as administrator because he
has adverse interest against the estate of the Decedent.
Q: What else would be the ground?
A: That as an oppositor, you too is better qualified than the petitioner.
In other words, at the same time you are applying for petition for the letters of administration, its not just
an opposition but you are interested to be appointed as to administrator of the estate of the decedent.
Let me ask you guys, what if for example, the petition was filed following the rules governing on the
issuance of letters of administration, so you establish the jurisdictional facts.
The fact of death.
The residence of the decedent.
The probable value and character of the estate or property of the decedent.
The names of the heirs or creditors with their addresses.
Fact of publication.
34

And then you have the Letters of Administration.
Q: Now, assuming that they have already been given due course by the court, what will the court do
next?
A: then there will be an initial hearing, there will be publication of the order setting the hearing of the case
on a given date and it will be held on the date it was set. There is the initial hearing in other words. Now,
during the initial hearing, you may now file your opposition, even before the initial hearing for as long as
you are notified. Take note of the importance of notice. So, you file an opposition even before the initial
hearing however you did not appear during the initial hearing.
Q: Does estopped and waiver apply to continue with your opposition and at the same time apply for the
last will and testament deemed waived? Is it considered as deemed waived?
A: Answer is YES. It may be barred by waiver or estopped.
Q:If it were the petitioner who did not appear at the initial hearing, that is a dismissal of the petition. If
there is an oppositor?
A: Answer is NO. It may be cured by the oppositor who may now apply for letters of Administration
instead.
Initial hearing, you have to appear because you have to establish the facts so the court can take
cognizance of the petition.
Should the petitioner fail to appear, ordinarily it will be dismissed it there is no oppositor. If theres an
oppositor, then in which case the application for Letters of Administration could not necessarily be
dismissed. It will be continued, this time by the oppositor. The oppositor now will be considered as the
petitioner in the case. He will now present evidence to establish that he is also qualified to be appointed
as Administrator in the estate of the decedent.
Let us proceed to when the letters of administration is granted to any applicant.
Q: so if there are the petitioner and the oppositor, what will happen next after the initial hearing?
A: The case will be set for presentation of evidence.
So you follow the ordinary rules on civ pro.
So, first it will be the petitioner to present evidence to establish that he is qualified to be appointed then
after the oppositor will present evidence to prove that he is better qualified than the petitioner. So the
burden of proof therefore is on the person seeking to establish facts which is necessary for his
appointment as administrator, meaning his qualification to administer the property of the decedent.
So, it is for both the petitioner and the oppositor because the oppositor is not just opposing to the
application of the petitioner, he too must establish that he is qualified in lieu of the petitioner for
appointment as administrator of the estate.
If the petitioner does not appear, it is cured by the presence of the oppositor, the court will receive
evidence of the oppositor as if it is now the oppositor who is the applicant.
If no oppositor, then the case will be dismissed, and he may be estopped. The waiver and estoppel will
now apply.
35

This is not the same when you have your will be probated, estoppel does not apply because it is
mandatory. This is for appointment. And appointment is discretionary on the court. It depends on the
sound discretion of the court whether to grant your petition or not.
Q: Appointment of a creditor or a special administrator
A: only when there is delay on the appointment of a regular administrator.
Q. Is it possible to have 2 regular administrators?
A: Yes, only in special circumstances, especially when the estate is too large. However it is not possible
to have 2 special administrators. There could only be one.
Nature of the job of a duly appointed administrator by the court- He is not only a protector of the estate of
the decedent, he is also an officer of the court. Therefore all his acts require the approval of the court.
He should always act at all times subject to the authority of the appointing court and no one else.
Example: Selling of a perishable property of the decedent, he must have approval of the court.
A clerk of court being an administrator should be avoided if possible, because it might cause a conflict of
interest.
TAKE NOTE: Requirement of notice ensures that all interested parties are all notified. If in case an heir is
not notified of the hearing, it is defective, and to cure such defect, the party who wants to cure such defect
must file an motion for reconsideration, and the court must hear the motion for reconsideration. This way,
the defect is cured because what is important is the party's opportunity to be heard. (Hearing)
Rule 80- Special Administrator or Administrator pendete lite
*There can only be one special administrator.
Q. If the court appoints a special administrator, can you appeal the order of the court?
A: No, since it is an interlocutory order. The matter of appointing a special administrator is left to the
sound discretion of the court. For as long as the selection of the special administrator is not whimsical,
then such appointment must be respected.
The remedy would be Ceritorari under rule 65.
If there is an allegation of grave abuse of discretion, they could question such in the petition for certiorari.
The reason why a special administrator is appointed is because there is a delay in the appointment of a
regular administrator.
Reasons for the delay: pending appeal in the allowance of the will and the executor is a claimant of the
estate he represents
The appointment of the special administrator is only temporary. He is appointed to care and preserve the
properties of the decedent until an executor is appointed. He is not a representative or an agent of the
parties. He is an administrator of the estate and an officer of the court.
Q: Powers and Duties of the special administrator
A:
- can sue and be sued.
- can sell only perishable property and other property ordered sold by the court
If he sells a real property of the decedent without the approval of the court, it is not binding on the estate.
The remedy of the buyer in good faith, you submit the receipt of the sale to the court for approval in order
for your right over the property be recognized.
36

Leabres vs CA and Manotok Realty
F: Catalino Leabres bought the Legarda Tambunting Subdivision from Vicente Tambunting, husband of
deceased Clara Tambunting who very recently before the sale. Vicente was the special administrator of
the estate of the deceased during the transaction, the deed or receipt of said sale appearing to be dated
May 2, 1950. Later on, Vicente was appointed as a regular administrator together with Pacifica Price and
Augusto Tambunting. On November 21, 1951, court issued in a special proceeding an order authorizing
the sale of the property where no adverse claim or interest over the subdivision or any portion thereof was
ever presented by any person. Then Philippine Trust Co. took over as administrator and advertised the
sale of the subdivision in the newspaper. The subsequent sale wherein Manotok Realty emerged as the
successful bidder, was recorded in the the RD by virtue of a Deed of Absolute Sale of the subdivision
dated January 7, 1959 in favor of the Manotok Realty, Inc. which deed was judicially approved on March
20, 1959, and thereafter Certificates of Title were issued to the Manotok Realty, Inc. Leabres, now seeks
to quiet his title over said subdivision anchoring his claim on the receipt dated May 2, 1950, which he
claims as evidence of the sale of said lot in his favor. However, Catalino Leabres has not registered his
supposed interest over the lot in the records of the Register of Deeds, nor did he present his claim for
probate in the testate proceedings over the estate of the owner of said subdivision, in spite of the notices
advertised
in
the
newspaper.
I: WON the petitioner had to submit his receipt to the probate court in order that his right over the parcel
of land in dispute could be recognized valid and binding and conclusive against the Manotok Realty, Inc.
R: YES. It is a fact that Doa Clara Tambunting died on April 22, 1950. Her estate was thereafter under
custodia legis of the Probate Court which appointed Don Vicente Legarda as Special Administrator on
August 28, 1950. Don Vicente Legarda entered into said sale in his own personal-capacity and without
court approval, consequently, said sale cannot bind the estate of Clara Tambunting. Petitioner should
have submitted the receipt of alleged sale to the Probate Court for its approval of the transactions. Thus,
the respondent Court did not err in holding that the petitioner should have submitted his receipt to the
probate court in order that his right over the subject land could be recognized - assuming of course that
the receipt could be regarded as sufficient proof.
His powers would stop upon the appointment of a regular administrator. It does not need a court order. It
is automatic.
Lao v. Lao
Case cannot be found. According to Judge 5, the doctrine laid down in this Phil. Reports case is:
The special administrators functions terminate ipso facto upon appointment of a regular administrator,
without need for a separate court order.
Its not easy to be an administrator, but you will have money because you will also be paid. Thats part of
the expenses of administration.
Q: If the special administrator sold the property, will the court still recognize if the buyer acted in bad
faith? Here the buyer knew that the special administrator has no authority.
A: Then it may not be ratified. Precisely you have to make a manifestation so that they may actually have
a chance to file their opposition in the sale. It will only apply to buyer in good faith.
37

Q: In opposition, do you have to file it on or before initial hearing?
A: In filing for petition for letters of administration, all heirs and creditors are furnished with a copy of the
petition. So you can either file before the setting of the initial hearing by the court.
Q: After that judge, you cannot file a petition anymore?
A: You can still file. In fact, they can always manifest in court that they intend to file within 15 days, they
will formalize their opposition then I will set the case for hearing where the petitioner will present evidence
in the presence of the oppositor. From then on, as long as it is suggested from the initial hearing their
opposition, then they will be subsequently notified of the hearing of the case. As long as they submit their
formal opposition
TAKE NOTE: You have to compare the duties and responsibilities of a regular and special administrator.
This is important for Bar exam purposes. (Sec. 2)
Q: The regular administrator or special administrator, unsa man ang ideliver niya?
A: Whatever that is left of the property.
Example: I have this case where the special administrator sold all properties without informing the
court. And after what she did, she withdraw as special administrator!
Read the case of Silverio Sr. v Court of Appeals regarding on the sale of real properties. As a
general rule, the probate court has no power to order the special administrator to sell real properties
pending the determination of a regular administrator. While the court cannot order such if the special
administrator would not want to sell, if the special administrator would sell, it must be with the approval of
the court.
Silverio, Sr vs. CA
F: In 1987, Beatriz Silverio died without leaving any will and was survived by the legal heirs. His son
Edgardo Silverio was appointed as special administrator of her estate. The appointment was appealed by
deceaseds husband, Ricardo Silverio. A series of litigation ensued between them and the 3 illegitimate
children of Ricardo involving 3 valuable real properties in Makati. On June 28, 1996, Edgardo filed a
Respectful Urgent Manifestation and Motion for the Issuance of a Temporary Restraining Order and/or
Early Resolution, alleging:
"4. That on April 22, 1996, Petitioner received through the undersigned counsel a
"Petition To Allow Claim Against the Estate and For Annotation of Attorney's Lien filed
by Atty. Cesar P. Uy, counsel of Private Respondent Edgardo S. Silverio. In this
Petition, Counsel of Private Respondent Edgardo S. Silverio claims that he is entitled to
Thirty three and one-third (33 1/3%) percent of the fair market value of the properties
he allegedly recovered for the estate of Beatriz S. Silverio as Intervenor in Civil Case
No. 17467 of the Regional Trial Court, Makati, Branch 143 as his attorney's fees as
counsel of the "Administrator" Edgardo S. Silverio. Atty. Uy estimated that the said
properties have a total value of P450,000,000.00, more or less. Not only did Atty. Uy
claim that Edgardo S. Silverio is the "Administrator" but he also peremptorily changed
the caption of the case in Branch 57, RTC, Makati from "Edgardo S. Silverio, Petitioner"
to "Edgardo S. Silverio, Administrator". . .
The court acted favorably on Edgardos petition, which urged Ricardo to file an Urgent
Manifestation and Motion for the Issuance of a Temporary Restraining Order and/or Early
Resolution on the Petition to Allow Claim against the Estate and for the Annotation of Attorney's
Lien filed by counsel for Edgardo.
I: WON it was proper for the court to grant Edgardos petition for authority to sell the properties of
the estate in order to satisfy the litigation expenses incurred.
38

R: NO. Petitioner's Respectful Urgent Manifestation and Motion for the Issuance of a Temporary
Restraining Order and/or Early Resolution on the Petition to Allow Claim against the Estate and for the
Annotation of Attorney's Lien filed by counsel for private respondent, which was favorably acted upon by
the respondent court, is impressed with merit. The respondent court is not vested with the power to order
the special administrator to sell real properties of the estate pending determination of the validity of the
regular administrator's appointment, pursuant to Section 2, Rule 80 of the Revised Rules of Court.
In the case of Testamentary Proceedings, Estate of the Deceased Juan Pimentel. Tecla Arganda v. Velez
et al., Vol. XXXV, No. 134 O. G. 2429, the Court found, that:
"Under the title "Sale of Estate" in Chapter XXXVI of the Code of the Civil Procedure,
and the provisions which it comprises, from Section 714 to 724, the Code treats of and
designates the powers of the Court of First Instance in testamentary and intestate
proceedings, in connection with the sale of property belonging to the Estate. By virtue
of the authority conferred by sections 714 to 724, the court may grant permission or
authority for the sale of said property upon previous petition of the executor or
administrator, provided the legal requirements are complied with, and the grounds
required by the law in each case provided for in the above-mentioned sections are
shown. The executor or administrator must comply with the rules established by section
722 of the Code. Of course in exercising its powers, when the court is convinced that a
sufficient valid reason exists, it may order the executor or administrator to request
permission or authority to sell property; but it cannot directly order its sale, because that
would be neglecting to comply with the rules which must be observed before granting
the said permission or authority. Section 722 requires that satisfactory proof be
adduced and that the rules established in the first paragraphs be complied with, before
granting the permission or authority to the executor or administrator. (Baun v. Heirs of
Baun, 53 Phil., 654)
As a rule and as a matter of courtesy and respect, the respondent court has to wait for the Decision of
this Court before ruling on the matter of the claim for agreed contingent attorney's fees by Atty. Cesar P.
Uy, amounting to thirty three and one third (33 1/3 %) per cent of the fair market value of the recovered
properties. However, the issue has become moot and academic in light of the finding by this Court that
Edgardo Silverio has been duly appointed as regular administrator.
On personal properties, he may also be empowered. It is the court that empowers them. This is
for perishable or personal properties.
----2013
39

01/09/14
Q: Now on Rule 81 guys, this is on BONDS. Now you know who an EXECUTOR is guys. As a review an
executor is appoint by the testator to administer his estate. As administrator, he is one who is appointed
by the court. One of the qualifications for the administrator to administer the estate of the decedent, is for
the posting of a bond. It is mandatory. Why? What is the reason for this guys.
A: Basically the reason is to safeguard the properties. To answer for any infidelity that may be committed
by the administrator or executor during the administration of the properties of the deceased. To secure a
faithful administration of his estate and a fair distribution of the proceeds among those who are entitled to
it under the law.
So basically this bond is a guarantee that there would be faithful administration of the estate of the
decedent. That he must perform the trust reposed in him by the court.
Q: Specifically, what are the conditions?
A: Sec. 1 Rule 81
1. To make and return to the court, within 3 months, a true and complete inventory of all goods,
chattels, rights, credits, and estate of the deceased which shall come to his possession or
knowledge or to the possession of any other person for him
2. To administer according to these rules, and if an executor, according to the will of the testator, all
goods, chattels, rights, credits, and estate which shall at any time come to his possession or to
the possession of any other person for him, and from the proceeds to pay and discharge all
debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the
court,
3. Render a true and just account of his administration to the court within one year, and at any other
time when required by the court.
4. To perform all orders of the court by him to be performed.
So this bond would guarantee that these functions would be performed by the administrator. Any liability
or damage that may be caused to the estate, or heir the bond will answer for that.
So therefore, it MAY NOT be used to answer for any money borrowed or used by the administrator and
he wasnt able to pay for it. That is not one of those listed here. You cannot run after the bonds if in case
the administrator cannot pay the money of the estate of the deceased which he used to pay.
Q: Another point you should also TAKE NOTE guys, is with respect to the amount it should be put up as
a bond. Of course, it is at the discretion of the court and you always have to considered the total value of
the estate of the deceased. And what would then be the maximum liability of the surety?
A: The maximum guys would be the value stated in the bond. So that it is important to know how exactly
is the bond by the surety to guarantee the performance of the functions enumerated in Section 1.
Also guys, you have to TAKE NOTE the surety is CO-EXTENSIVE with that of the administrator. Now
then if there is a motion to forfeit the bond to answer for any damage, TAKE NOTE, the surety need not
be notified. It is enough that administrator knows, even if it is guaranteed by a surety through the bond.
Should, however, the surety intervenes, it should be WITH LEAVE OF COURT. In other words, with the
permission of the court.
Also guys TAKE NOTE, the sureties of an administration bond are liable only as a rule, for matters
occurring during the term covered by the bond. And the term of a bond does not usually expire until the
administration has been closed and terminated in the manner directed by law. Therefore, it is a continuing
liability notwithstanding the non-renewal of the bond.
40

Usually bonds are renewed every year. But it doesnt mean na exonerated na ang surety of liability. It is
continuing until the termination of the administration which is a revocation of the letters of administration.
Q: Sa ato pa panglitan karon execution of a bond, mu expire na in one year. You are supposed to renew
nd
that, however it was not renewed. And then later during the 2 year, where there was already no renewal
of the however ni expire na. Damage was caused to the heir like loss of a property. Now then, can one
still hold the surety even if the bond already expired?
A: Yes, because liability is continuing until there is an order to terminate the administration of the
administrator.
Q: Another part you should TAKE NOTE, when the bond is insufficient or defective. Say for example
there is a surety and there are some defects because apparently dili diay duly accredited surety
company. Will it nullify the issuance of the order granting the letters of administration simply because the
bond posted is insufficient or defective?
A: The answer is NO. It does not nullify.
Q: What would then be the remedy guys?
A: Put up the proper bond. The party will be given time in order to put up the bond. It will not nullify the
letters of administration.
Q: The court has the duty to make sure that the estate of the decedent is protected. What would then be
the remedy if the administrator does not perform his functions. Or if he becomes unfaithful.
A: He can be ordered by the court and should he persist the court may terminate the powers.
Q: Now regarding the bond of an executor, as I have said earlier a will or the testator may require the
executor to put up a bond.
Regarding on the fact of executor, as I have said earlier, the testator may require the executor to put up a
bond or may not at all require the executor.
So, if the last will and testament does not require the testator to put up a bond, then he may administer
the property of the decedent without a bond. Theres no problem. Of course, ultimately, the court will have
to decide on the requirement of the bond because first and foremost, it is the duty of the probate court to
protect the estate of the decedent so it can properly be administered and distributed among the heirs and
creditors of the estate of the decedent. Theres a guaranty that its now protected.
Q: Now, what would be the circumstances where the court may require nonetheless the executor
notwithstanding the exception of the executor of putting a bond?
A:
1. When the executor is a non-resident of the Philippines
because its easy for them to abscond and be out of reach of the probate court. In which case, to
guaranty that there would be proper administration of the estate of the decedent, the court may
nonetheless require the executor to put up a bond.
2. When the executor is bankrupt or insolvent.
Why? He could easily squander the estate and there is liability and there is no one to answer for any
damage. In which case, even if the executor is exempt from putting up a bond, the court may require to
put up a bond.
3. Another circumstance, when his finances are precarious.
41

To afford adequate security for his administering of the property, because there is always a danger that
he will be tempted to use the estate of the decedent in order to answer for whatever financial difficulties
he may have. Now, to protect the estate, then he may still be required to put up a bond.
Q: Now, in the putting up of a bond TAKE NOTE if it is forfeited, is the surety entitled to notice?
A: Answer is NO. However he may intervene with leave of court.
4. When there are 2 or more executors or administrators.
Q: What are the forms of bonds, especially when there are 2 more executors?
A: Individual Bond and Single Bond
Now individually, each executor or administrator maybe required to put up their respective bond.
Q: If it is a single bond for 2 executors, how much amount would be the bond to be put up?
A: Equivalent to the totality of the amounts required of both. So, totality of the bond required for each of
the executor or administrator.
Lets go to Rule 82 on Revocation of Administration, Death, Resignation, and R3emoval of Executors and
Administrators
Q: When there is letters of administration already issued, thereafter there is a discovery of a purported
last will and testament. What would be the effect of the discovery? In fact administrator has already
assumed and then theres the discovery of the last will and testament, will it automatically render void the
letters of administration issued?
A: It is not automatic. You have to wait until the last will and testament is probated or annulled.
Q: In the meantime, what will happen?
A: Ma.superseded ang intestate proceedings. It will NOT be in the same court. It is a separate action.
Priority must be given to the probate of the last will and testament. The point there is you must comply
with the last wishes of the deceased.
Q: Now then, what if for example, the will was disapproved, what will happen?
A: Then the resumption of the intestate proceedings.
Q:So, if in the meantime theres a probate of a last will and testament and there are claims against the
estate, when do you submit that?
A: You submit it after the probate or the disapproval of the will.
Q: If the last will and testament is probated, what happens to the letters of administration? A: Then the
letters of administration is revoked.
TAKE NOTE, there must first be a probate of a will before you can terminate the administration by the
administrator or revoke the letters of administration.
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Lets go to Section 2, this is now on the removal of the executor or administrator. The Grounds
enumerated in Section 2.
Q: Grounds for removal of the executor or administrator

A:
1. If an executor or administrator neglects to render his account and settle the estate according to
law, or to perform an order or judgment of the court, or a duty expressly provided by these rules,
or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust.
(Sec.2 Rule 82)
2. The heir would complain (that would be a valid ground for the revocation)
3. When there is active hostility to a creditor. The administrator cant see eye to eye to the creditor.
The creditor can complain and ask that he be removed
4. There is false representation to obtain the administrations appointment. So if there is
misrepresentation in the first place when he applied for administration
5. Physical incapability. Not just mental but as well as physical.
6. Executor or administrator has adverse interest in the estate against the heirs. Like utangan siya.
He is also a debtor to the estate.
7. When there is delay in the settlement of the estate under his administration
He causes the delay. When he resorted to actions found unnecessary
Q:How about temporary absence of the administrator or executor. Could that be ground for his removal?
Like he is abroad?
A: No. So the mere temporary absence is not a ground for his removal
Q: What would then be the effect of the revocation of the letters of administration or letters testamentary?
A: Lawful acts before revocation shall be valid and binding. After that they will not bind anymore the
estate
Q: if the last will and testament is probated. In the will and testament there is an executor. What will
happen? Ang last administrator or the letters administration has already been issued, so what would be
his duty? Now that the will is probated and there is an executor named to administer the property of the
decedent, you have the functions here enumerated in section 4 rule 82.
A:
1. Have the same power as that of his predecessor (Accounting, appraisal, making the inventory,
paying of the debts of the estate)
2. To defend or prosecute actions that has been commenced or started by his predecessor
a. Example. The predecessor has also started recovering the properties owned by the
deceased, then he has to continue the prosecution or the defense of these properties
3. Have the judgments executed
0/10/14
INVENTORY AND APPRAISAL
TAKE NOTE: Part of the functions of the administrator is to administer the property of course, manage
the property and for you to manage the property, you should know what are the properties of the
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deceased and how much the value of each property may have so that you will be able to properly
manage it.
Q: WHAT IS THE PURPOSE OF AN INVENTORY OF THE DECEASEDS PROPERTY AND
APPRAISAL OF THE THING?
A:
Basically the purpose of an inventory is to assist the court in devising the accounts of the
deceased and determine the liabilities of the executor and administrator for purposes of making
them accountable under the bond. Because in the first place the court could not know about
exactly what are the properties and how much the properties already are valued at, then it would
be difficult then for the court to determine the extent of their liability as executors, also of the
administrator should there be a non-faithful delivery on his part regarding on the administration of
the estate.
Secondly, it could also help the court in making a final and equitable distribution of the estate.
Finally, it could also aid a court in facilitating the distribution of the estate.
-Thats the importance of an inventory to be conducted. In fact the requirement here is that upon
approval of the letters of administration or there is a grant of the testamentary letters to the
executor, if the administrator or executor is obliged to make an inventory making a period of 3
MONTHS from the approval of the appointment.
Q: If he submits his inventory after the 3 MONTH period, is it a valid inventory?
A: Yes.
Q: Do you the difference between inventory and accounting? What is being asked here of the
administration is inventory and not accounting yet?
A: Inventory - is just simply the listing of assets, credits, goods, chattels and all the properties of the
deceased that may come in his possession or within his knowledge.
Accounting what may be accounted for by the administrator are those properties that are in his
possession or that come into his possession.
Q: For purposes of inventory, what would the administrator or executor do?
A: He will take a listing of all the properties belonging to the deceased in so far as they are in his
possession and those that comes into his knowledge that they belong to the estate of the deceased.
If there is no opposition to the inclusion of a property in the inventory then theres no problem at all, the
problem would arise if a third person would complain why are you including this property when it does
not belong to the deceased.
Q: Who then will determine whether or not it should be included in the inventory list?
A: it will be for the court to determine that. Only for purposes of whether or not is should be included. And
should it be contested, it has to be done in a separate action because after all the probate court has no
power or authority to determine ownership over the property being contested. Its jurisdiction is very
limited. It refers only to the settlement of the estate. Should there be any question as to the ownership of
the property, it should be based on the proper forum; it should be in a court of general jurisdiction. So
either it will be administrated and commence an action for the probate in order to make it as part of the
estate or the person claiming over it filing a case against the estate in order to recover the property
should it be taken into possession by the administrator.
TAKE NOTE: The probate court can make a provisional determination of ownership over the property
being contested. Provisional therefore res judicata does not apply. Therefore, you cannot ask for a writ of
execution to enforce the order where the court made a determination as regards to the ownership of the
property because it is only provisional. It is not conclusive, it is only prima facie evidence as to who owns
the property subject to the final determination of the title or ownership over the property by the proper
forum.
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The only exception to this is when the parties themselves, such as the creditor or the heirs, would submit
it to the probate court to have the issue resolved and determined. Now, definitely, in sofar as the probate
court with respect to the parties concerned then has upon the title or ownership over the property with
definiteness. In other words, it is binding insofar as they are concerned. By principle of estoppel they
cannot question the jurisdiction of the probate court. This judgment however does not bind a third person
who was never a party in that case where there is determination of ownership.
Q: (student) What about the successors of the heir?
A: It will also bind the successors of the heir. Who is excluded is an heir who may not have been a party
to the case maybe because he was not known or it is only later that it is discovered that there is a wife or
a child of the deceased.
Q: (student) Is it procedurally allowed to question the title in the probate proceedings?
A: He can go to another court, summary action on general jurisdiction. No longer the probate court. So in
this case if the judgment is rendered, this is without prejudice to a third person. So he should file a
separate action for recovery of the property or reconveyance of the property.
So, insofar as the probate court binds only those who submitted the issue to the probate court, otherwise,
should there be any judgment of the court relating to ownership, that is only for the purpose of having the
property included in the inventory.
With respect to the appraisal, the purpose is to settle the obligations of the estate, especially on the
inheritance tax. So that they would know how much obligation should be paid by these properties and
how will the properties be disposed to pay off the obligations. That is why in the appraisal, you may ask
the court to issue an order directing the BIR tax appraiser to assist the administrator in appraising the
value of the properties.
Q: Now lets go to Section 2. On section 2 guys, these are the things that cannot be included in the
inventory.
A:
1. You have the apparels of the spouses, excluded even when more expensive than any parcel of land.
That should not be included in the inventory. You have also that of the children, not included.
2. As well as those that are used for the subsistence of the widow.
3. Marital Bed and Beddings
They are not considered as assets or to be administered by the administrator.
4. Mourning Apparel. You make reference to Sec. 2, Rule 83 to Article 180 and 186 of the civil code,
wherein the apparel should not be part of the inventory and the mourning apparel should be charged to
the estate of the deceased husband, but TAKE NOTE, not the widower.
5. Sec. 3 Rule 83- Allowance of the widow charged against the estate of the deceased husbandallowance to be given while there is a settlement of the estate. TAKE NOTE it does not apply to a
widower.
It also includes minor children and incapacitated children, however it does not include grandchildren
Also it includes children who are already of age but are still studying, they are entitled to an allowance
pursuant to art 188 of the civil code and art 183 and 194 of the family code- Education of the persons
entitled to support includes schooling, training or some profession trade or vocation even beyond the age
of majority.
TAKE NOTE with allowance, it is ultimately left to the court to determine how much allowance should be
given.
Q: Rule 84- General Powers and Duties of Executors and Administrators
45

A: An administrator has 3 general powers;
1.Administration;
2.Liquidation;
3. Distribution of the remaining properties.
Administration includes managing, marshalling all the assets and properties of the deceased and if the
properties are not in possession of the administrator, he can always commence an action of recovery of
these properties.
Liquidation- Determine what are the properties of the deceased for purposes of inventory.
Distribution of the net estate of the deceased to persons who are entitled.
In administration, it includes assets of the deceased partner of the partnership. A death of a partner
naturally would lead to dissolution of the partnership and as a result, assets will be distributed.
TAKE NOTE, An administrator does not have a right to administer the assets of the partnership itself, he
cannot intervene until the partnership is dissolved. This right is provided by Sec.1 and this is based on
article 1835 and 1842 of the new civil code. The individual property of a deceased partner shall be liable
for all obligations of the partnership incurred while he was a partner, but subject to the prior payment of
his separate debts.
The right to account of his interest shall accrue to any partner, his legal representative as against the
winding up partners or the surviving partners or the persons or partnership continuing the business. After
the winding up of the partnership, the administrator is vested with access to the books of accounts.
Repair of buildings
The duty is with the administrator to repair the building in the estate, and it is only limited to the repair
necessary to keep the properties in good condition.
It cannot make any improvement to the estate like building a house in the land or in the property. Only
making repairs in order to keep the property in good condition.
Except when before the death of the deceased a building has already been constructed however was not
completed before he died and in order to preserve the property then the administrator may be allowed to
complete it. So, except to complete a building began by the decedent when it is necessary to preserve
the estate of the deceased.
What is only vested to the administrator are only acts of administration. In such case, there is no need of
court approval in order to do these acts. However, if it is an act of ownership/ dominion such as act of
disposition of the property, then it needs a court approval.
Leasing does not need court approval. Unless the lease is more than 6 years, and registered and
annotated in the title, it can be considered as an act of ownership/dominion in which case you need court
approval.
Q: What are Acts of dominion/ownership?
A:
1. payment of debts
2. the right to possess and manage the property if the purpose is for the payment of debts and expenses
of the administration
Heirs cannot interfere in any of the acts of administration. They do not have any right to possess
the property. It would stay under the custody of the court until they are adjudicated and liquidated.
3. borrowing money
46

4. buying properties
5. investment of the property
6. lease is more than 6 years which is registered (even if more that 6 years but not registered, it is an act
of administration)
7. sale of the property
8. would continue the business that was established by the deceased
The rights of the heirs are just inchoate subject to the rights of the creditors. First, you have to settle the
obligations of the estate to the creditors. Whatever is left, that is the only portion of the estate that will be
distributed to the heirs.
Example.
Q: There is a son who got a share of the estate of his deceased father and he had that share sold after
the death of the deceased. Can that be taken possession by the administrator for the purpose of paying
obligations to the creditors?
A: No. It is no longer in custodia legis. The court can no longer order the return. It is not subject to the
administration of the administrator because it is no longer in the custody of the court.
Saturnino vs Paulino
F: Land subject of the dispute is part of the estate of the late Jaime Luz Paulino. When the latter
died, one of his 5 children, Feliza executed a deed of absolute sale over the whole land in favor of
Maximo Daleja. The grandson Quirico Saturnino who was the son of the deceased daughter of
Jaime Luz Paulino filed an action for declaration of nullity of the sale with respect to 1/5 of the
property being injurious to his right of representation as co-heir on October 30, 1945. Meanwhile
Saturnino filed a special proceeding for the probate of the will and testament of Jaime Luz
Paulino which provided the property in dispute be distributed, share and share alike among the
heirs of the testator. RTC declared the sale void. CA reversed saying that the properties left by
the late Jaime Luz Paulino are in custodia legis, for they are subject to testate proceedings in said
Civil Case No. 37 which is still pending in the Court of First Instance of Ilocos Norte. Although the
will of the testator has been allowed, no settlement of accounts has been effected, no partition of
the properties left by the decedent has been made, and the heirs have not legally received or
been adjudicated or assigned any particular piece of the mass of their inheritance.
I: Whether or not probate court can order the return of the property of the deceased sold by a coheir to third parties without knowledge and consent of co-heirs
R: No because house and lot involved in the case at bar are not in custodia legis. Said property
was sold by Feliza Luz Paulino to Maximo Daleja, Juana Lucas, Nemesio Lucas and Donata
Guillermo on October 22, 1945, or almost a month before Special Proceeding Case No. 37 was
instituted (November 19, 1945). At that time, the buyers of said property were in possession
thereof. They still held it when the judicial administrator was appointed in Case No. 37, and this
must have taken place after the probate of the will on July 6, 1949 (Rule 78, section 4, Rule 79,
sections 4 and 6, and Rule 80, section 5, Rules of Court). Up to the present, said buyers remain
in possession of the property in litigation. Neither the court, taking cognizance of Case No. 37,
nor the judicial administrator therein appointed, has even tried to divest them of said possession.
In fact, if they were as they are unwilling to yield it and the administrator wished to take the
property under his custody, it would be necessary for him to institute a separate civil action
therefor.
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Luj. Arl. Aika. Anacelle. Emily. Anj. Daphne.

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to protect or enforce a right or prevent or redress a

may involve only one party

-the respondent is usually a nominal party such as

governed by special rules supplemented

- summons will be issued by the court to require the

- no more summons, TAKE NOTE, the court may

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-example when special rules are supplemented by

Initiated by means of a petition and parties respond

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Q: Other questions which the probate court can determine:

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Who are the heirs of the decedent?

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Q: Can the Probate Court issue a writ of execution?

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Appointment of Administrators or Executors

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Q: What do you do with the public instrument?

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Q: What if there are minors?

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(3 remedy) Another remedy, Re-opening by intervention, within the reglementary period.

(4 remedy) New action to annul settlement

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Prove due execution

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Was he forced to sign the last will and testament?

Q: Difference of pretirition and disinheritance

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For holographic will

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Q: in so far as creditors are concerned?

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Q: What is the difference between letters testamentary and letters of administration?

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-could be regular or special

-if you are the executor, especially when you knew

Usually the appointment of a special administrator,

Q: Is that duty given to an administrator? (to

-if in the last will and testament, the testator does

-there is always a bond required by the court

-if the executors compensation is stated in the last