CHAPTER 1

GENERAL PROVISION
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
(BAR QUESTIONS: 1996, 1998, 2008, 2012)

f .01 DEFINE SPECIAL PROCEEDING.

It is an a pplication to establish the status or right of a party or
11particular fact or any remedy other t han an ordinary suit in a court
o('justice.

l.02 ARE THE LIST OF SUBJECT MATTERS UNDER SEC-

TION I OF RULE 72 EXCLUSIVE?
No. Any petition which h as for its main purpose th e establish-
ment of a status, right or a particular fact may be included as special
proceeding. An example of this is a petition for declaration of nullity
of marriage. It seeks to establish a status, a right , or a particular fact .

1.03 BAR Q. [2012]

Which of the following is not a Special Proceeding?
(A) Absentees
(B) Escheat
(C) Change of First Name
(D) Constitution of Family Home

1.04 A. BAR Q. [1996, 1998]

Distinguish civil action from special proceeding.
SUGGESTED ANSWER:
The following are the distinctions:
1. A special proceeding under the sa me rule provides that it
is a remedy by which a party seeks to est ablish a status, a

1
xx xviii
2 SPECIAL PROCEEDINGS
right or a particular fact. Pursuant to Section 3, Rule 1 of
the 1997 Rules of Civil Procedur e, a civil action is one by
which a party sues another for the enforcement or protec-
tion of a right, or the prevention or redress of a wrong.
2. Unlike actions, a special proceeding is generally com-
menced by application, petition or special form of pleading
as may be provided for by the particular rule or law.
3. In special proceedings, it does not pray for affirmative
relief for injury arising from a party's wrongful act or
omission nor state a cause of action that can be enforced
against any person.
B. CASE
MONTANER, et al. v. SHARI'A DISTRICT
COURT, 4TH SHARI'A JUDICIAL
DISTRICT, MARAWI CITY, DISANGCOPAN, et al.
January 20, 2009
DOCTRINE: Unlike a civil action which has definite adverse
parties, a special proceeding has no definite adverse party.
The Supreme Court held:
The prohibition against a decedent or his estate from being a
party defendant in an ordinary civil action does not apply to a special
proceeding such as the settlement of the est ate of the deceased.
The definitions of a civil action and a special proceeding, res-
pectively, in the Rules illustrate this difference. A civil act ion, in
which "a party sues anot her for the enforcement or prot ection of a
right, or the prevention or redress of a wrong'' necessarily has definite
adverse parties, who are eit her the plaintiff or defendant. On the
other hand, a special proceeding, ''by which a party seeks to establish
a status, right, or a particular fact," has one definite party, who
petitions or applies for a declarat ion of a status, right, or particular
fact, but no definite adverse party.
It bears emphasis that the estate of the decedent is not being
sued for any cause of action. As a special proceeding, the purpose of
the settlement of the estate of the decedent is to deter mine all the
assets of the estate, pay its liabilities, and to distribute the residual
to those entitled to the same.
RULE 72 3
Subject Matter and Applicability of General Rules
1.05 SHOULD THE DETERMINATION OF THE LEGAL
HEIRS OF THE DECEASED PERSON BE MADE IN THE
SPECIAL PROCEEDINGS?
Yes, jurisprudence dictates that t he determin a tion of who are
the legal heirs of th e deceased mu st be made in the proper special
proceedings in court, and not in a n ordinary su it for r ecovery of own-
ersh ip and possession of property and this must take pr ecedence over
the action for recovery of possession and ownership.
In this case, the Suprem e Court h ad t he occasion to explain wh y
the trial court cann ot make a declar ation of h eirship in an ordinary
action.
The Court h as consistently ruled th at the t rial court cannot
make a declar ation of heir ship in th e civil action for t he rea son that
such a declaration can on ly be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil a ction is
defined as one by which a party sues another for the enfor cement or
protection of a right, or t h e pr evention or r edress of a wrong while
a special proceeding is a remedy by wh ich a party seeks to establish
a status, right, or a particular fact . It is then decisively clear that
the declaration of heirship can be m ade only in a special proceeding
inasmuch as the petition ers here ar e seeking the est ablishment of a
status or right. (Heirs of Teofilo Gabatan v. CA and Lourdes E vero
Pacana, G.R. No. 150206, March 13, 2009)
J..06 IS THERE AN EXCEPTION TO THE RULE ON THE
NEED TO INSTITUTE A SEPARATE PROCEEDING FOR
THE DETERMINATION OF HEIRSHIP?
Jurisprudence dictates that the det ermination of who are the
legal heirs of the deceased must b e ma de in th e proper special pro-
ceedings on court, and not in an ordinary suit for r ecovery of owner-
Hhip and possession of proper ty. This must take pr ecedence over the
action for recovery of possession a nd own ership.
By way of except ion, the need to instit ute a separa te special
proceeding for the determin ation of heirship ma y b e dispensed with
for the sake of practicality, a s wh en the parties in the civil case had
voluntarily submitted th e issu e to th e trial court and already pre-
Hented their evidence regardin g the issu e of h eirs hip, and the RTC
had consequently rendered judgm en t thereon, or when a special pro-
ceeding had been instituted but h ad been finally closed and termi-
4 SPECIAL PROCEEDINGS
nated, and hence, cannot be re-opened. (Heirs of Ypon v. Ricaforte,
G.R. No. 198680, July 8, 2013)
1.07 IS LIQUIDATION PROCEEDING AN ORDINARY ACTION
OR A SPECIAL PROCEEDING?
A petition for liquidation of an insolvent corporation should be
classified as a special proceeding and not as an ordinary action. Such
petition does not seek the enforcement or protection of a right nor
the prevention or redress of a wrong against a party. It does not pray
for affirmative relief for injury arising from a party's wrongful act or
omission nor state a cause of action t hat can be enforced against any
person. (Pacific Banking Corporation Employees Organization v. CA,
242 SCRA 492 [19951)
1.08 IS A PROCEEDING BEFORE THE SHARI'A DISTRICT
COURT AGAINST A DECEASED PERSON AN ORDI-
NARY CIVIL ACTION OR A SPECIAL PROCEEDING?
A proceeding before the Shari'a District Court for the settlement
of the estate is deemed a special proceeding.
MONTANER v. SHARI'A DISTRICT COURT
G.R. No. 174975, January 20, 2009
DOCTRINE: The Court reiterates that the proceedings before
the court a quo are for the issuance of letters of administration,
settlement, and distribution of the estate of the deceased,
which is a special proceeding. Section 3(c) of the Rules of Court
(Rules) defines a special proceeding as "a remedy by which
a party seeks to establish a status, a right, or a particular
fact." This Court has applied the Rules, particularly the rules
on special proceedings, for the settlement of the estate of a
deceased Muslim.
FACTS: In May 1995, Alejandro Montan.er, Sr. died leaving peti-
tioners Luisa Kho, his wife, and his three children as heirs to his
estate. Five years later, a complaint for judicial partition of properties
of Alejandro, Sr. was filed before the Shari'a District Court by Liling
Disangcopan and Almahleen Liling S. Montafier, who claimed that
Alejandro, Sr. was a Muslim and that they were his first family.
Petitioners filed a Motion to Dismiss the complaint on the
ground of lack of jurisdiction of the Shari'a Court, alleging t hat the
decedent was a Roman Catholic. They also argued t hat the proceed-
RULE 72 5
Subject Matter and Applicability of General Rules
ing before the district court is an ordinary civil action against a
deceased person. Said cou rt dismissed t he complaint, holdin g that
the deceased was not a Muslim and the court's jurisdiction extends
only to settlement of estate of deceased Muslims.
Private respondent Liling filed a Motion for Reconsideration
which was granted by the Shari'a District Court . It reconsidered its
dismissal and allowed the respondents to adduce further evidence.
Later, it ordered the continuation of the trial on merits. This was
questioned by the petitioner s.
ISSUE: Whether or not the complaint filed by the respondents
in the Shari'a District Court for the settlement of the estate is
an ordinary civil action.
RULING: The complaint filed by the respondents before the Shari'a
District Court for the settlement of the estate is a special proceeding.
The underlying assumption in petitioners' argument that the
proceeding before the Shari'a District Cou rt is an ordinary civil action
against a deceased person, rests on an er roneou s understanding of
the proceeding before the court a quo. Part of the confusion may be
attributed to the proceeding before the Shari'a District Court where
the parties were designated either as plaintiffs or defendants and the
case was denominated as a special civil action.
The Court reiterates that the proceedings before the court a quo
are for the issuance of letters of a dministration, settlement, and dis-
tribution of the estate of the deceased, which is a special proceeding.
Section 3(c) of the Rules of Court (Rules) defin es a special proceeding
as "a remedy by which a party seeks to establish a status, a right,
or a particular fact." This Court has applied the Rules, particularly
the rules on special proceedings, for th e settlement of the estate of a
deceased Muslim.
In a petition for the issuance ofletters of administration, settle-
ment, and distribution of estate, the applicants seek to establish
the fact of death of the decedent and later to be duly recognized as
nmong the decedent's heirs, which would allow them t o exercise their
right to participate in the settlement and liquidation of the estate
of the decedent. Here, the respondents seek to establish the fact
of Alejandro Montafier, Sr.'s death and, subsequently, for private
respondent Almahleen Liling S. Montafier to be recognized as among
his heirs, if such is the case in fact.
6 SPECIAL PROCEEDINGS
As a special proceeding, the purpose of the settlement of the
est ate of the decedent is to determine all t he assets of the estate, pay
its liabilities, and distribute the residue to those entitled to the same.
2.01 ARE THE RULES IN CIVIL ACTIONS APPLICABLE IN
SPECIAL PROCEEDINGS?
Yes, in the absence of special provisions, the rules provided
for in ordinary actions shall be, as far as practicable, applicable in
special proceedings. (Sec. 2, Rule 72 of the Rules of Court)
A. BAR Q. (2008)
An heir/oppositor in a probate proceeding filed a motion
to remove the administrator on the grounds of n eglect of
duties as administrator and absence from the country. On
his part, the heir/oppositor served written interrogatories to
the administrator preparatory to presenting the latter as a
witness. The administrator objected, insisting that the modes
of discovery apply only to ordinary civil actions, not special
proceedings. Rule on the matter.
SUGGESTED ANSWER:
I will deny the objection raised by the administrator. Under
Section 2 of Rule 72, in the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as practicable, appli-
cable in special proceedings. Hence, the provisions on modes of dis-
covery under the Rules of Court shall apply to special proceedings.
B. CASE
ALAN JOSEPH A. SHEKER v. ESTATE
OF ALICE 0 . SHEKER, VICTORIA S. MEDINA
G.R. No. 157912, December 13, 2007
DOCTRINE: Provisions of the Rules of Court requiring a certi-
fication of non-forum shopping for complaints and initiatory
pleadings, a written explanation for non-personal service and
filing, and the payment of filing fees for money claims against
an estate would not in any way obstruct probate proceedings,
thus, they are applicable to special proceedings such as the
settlement of the estate of a deceased person as in the present
case.
RULE 72 7
Subject Matter and Applicability of General Rules
FACTS: The RTC admitted to probate the holographic will of Alice
0. Sheker and thereafter issued an order for all the creditors to file
their respective claims against the estate. In compliance therewith,
petitioner filed a contingent claim for agent's commission due him
amounting to approximately P206,250.00 as reimbursement for ex-
penses incurred and/or to be incurred by petitioner in the course of
negotiating the sale of said realties.
The respondent execu trix moved for the dismissal of said
money claim against the estat e on the grounds that (1) the requisite
docket fee, as prescribed in Section 7(a), Rule 141 of the Rules of
Court, had not been paid; (2) petitioner failed to attach a certification
ngainst non-forum shopping; a nd (3) petitioner failed to attach a
written explanation why the money claim was not filed and served
personally.
RTC issued the assailed Order dismissing without prejudice the
money claim based on the grounds advanced by respondent . Petitioner
insists that Section 2, Rule 72 of the Rules of Court provides that
rules in ordinary actions are a pplicable to special proceedings only in
11 suppletory manner.
ISSUE: Whether or not the RTC erred in dismissing petitioner's
<'Ontingent money claim against respondent estate for failure
of the petitioner to attach in his motion a certification against
11,on-forum shopping.
HC RULING: Section 2, Rule 72, Part II of the same Rules of Court
provides that in the absence of special provisions, the rules pro-
vided for in ordinary actions shall be, as far as practicable, applicable
111 special proceedings.
Stated differently, special provisions under Part II of the Rules
ol' Court govern special proceedings; but in the absence of special
pl'Ovisions, the rules provided for in Part I of the Rules governing
111·clinary civil actions shall be applicable to special proceedings, as
1'11 1· ns practicable.
The word "practicable" is defined as: possible to practice or per-
l<ll'm; capable of being put into practice, done or accomplished. This
1111 •11 ns that in the absence of special provisions, rules in ordinary
111•1ions may be applied in special proceedings as much as possible
11 11d where doing so would not pose an obstacle to said proceedings.
Nowhere in the Rules of Court does it categorically say that rules
111 ol'Clinary actions are inapplicable or merely suppletory to special
p1·11c:c'cdings.
8 SPECIAL PROCEEDINGS
Provisions of the Rules of Court requiring a certification of non-
forum shopping for complaints and initiatory pleadings, a written
explanation for non-personal service and filing, and the payment of
filing fees for money claims against an estate would not in any way
obstruct prnbate proceedings, thus, they are applicable to special
proceedings such as the settlement of the estate of a deceased person
as in the present case.
2.02 CASE
ALFREDO HILADO, et al. v. COURT OF APPEALS
G.R. No. 164108, May 8, 2009
DOCTRINE: Notwithstanding Section 2 of Rule 72, Interven-
tion as set forth under Rule 19 does not extend to creditors of
a decedent whose credit is based on contingent claim.
FACTS: The well-known sugar magnate Roberto S. Benedicto died
intestate on May 15, 2000. He was s urvived by his wife, private
respondent Julita Campos Benedicto (administrat rix Benedicto), and
his only daughter, Francisca Benedicto-Paulino. At the time of his
death, there were two pending civil cases against B enedicto involving
the petitioners. The first was then pending with the Regional Trial
Court (RTC) of Bacolod City with pet itioner Alfredo Hilado as one
of the plaintiffs. The second was then pending with the same RTC
of Bacolod City with petitioners Lopez Sugar Corporation and First
Farmers Holding Corporation as among the plaintiffs.
Thereafter, private respondent Julita Campos Benedicto filed
with the RTC of Manila a petit ion for t he issuance of letters of
administration in her favor, pursuant to Section 6, Rule 78 of the
Revised Rules of Court. The Manila RTC issued an order appointing
private respondent as administrator of the estate of her deceased
husband. In January 2001, private respondent submitted an Inven-
tory of the Estate, Lists of Personal and Real Properties, and Liabi-
lities of the Estate which included as among the liabilities, the
above-mentioned two pending claims then being litigated before the
Bacolod City courts.
Subsequently, petitioner s filed with th e Manila RTC a Mani-
festation/Motion Ex Abundanti Cautela, praying that they be
furnished with copies of all processes and or ders pertaining to the
intestate proceedings. They also filed an omnibus motion praying
that the Manila RTC set a deadline for the submission by private
RULE 72 9
Subject Matter and Applicability of General Rules
respondent of t he required inventory of the decedent's estate. In
llddition, the petitioners a lso filed other pleadings or motion s with
th e Manila RTC, alleging lapses on the part of private respondent
in her administration of the estate, and assailing the inventory that
ha d been submitted as unverified, incomplete an d inaccurate.
The Manila RTC denied t he Manifestat ion/Motion, on the ground
that petitioners are not int erested parties within t he contemplation
of the Rules of Court to intervene in th e intesta te proceedings. The
Court of Appeals likewise dismissed the petition.
ISSUE 1: Whether or not creditors whose credit is based on
contingent claim have the right to participate in the settlement
proceedings by way of intervention under Rule 19 of the Rules
of Court.
ISSUE 2: Whether or not petitioners, as persons interested in
the intestate estate of the deceased person, are entitled to cop-
ies of all processes and orders pertaining to the intestate pro-
ceedings.
UULING ON THE 1st ISSUE:
Notwithstanding Section 2 of Rule 72, interven tion as set for th
under Rule 19 does not extend to creditors of a decedent whose credit
iHbased on a contingent claim. The definition of"interven tion" under
ltule 19 simply does not accommodate con tingent claims.
Section 1, Rule 19 of the 1997 Rules of Civil Procedure requires
Lhat an intervenor "has a legal in terest in the matt er in litigation, or
in the success of either of the parties, or an interest against both, or
lHso s ituated as to be a dversely affected by a distribution or other
di Bposition of property in t he custody of th e court xx x" While the
l11nguage of Section 1 of Rule 19 does n ot literally preclude peti-
1ioners from intervening in the intestate proceedings, case law has
1•011sistently held that the lega l interest required of an interven or
"must be actual and material, direct and immediate, and not simply
l'Olltingent and expectant."
Civil actions for tort or quasi-delict where the claims of t he
p11titioners are based do not fall within the class of claims to be filed
1111der th e notice to creditor s required under Rule 86. These actions,
hning as they are civil, survive the death of the deceden t and may
ho commenced against the a dministrator pursuant to Section 1 of
lt ulo 87.
10 SPECIAL PROCEEDINGS
RULING ON THE 2nd ISSUE:
In the same manner that the Rules on Special Proceedings do
not provide a creditor or any person interested in the estate the right
to participate in every aspect of the testate or intestate proceedings,
but instead provides for specific instances when such persons may
accordingly act in those proceedings. The Court deems that while
there is no general right to intervene on the part of the petitioners,
they may be allowed to seek certain prayers or reliefs from the
intestate court not explicitly provided for under the Rules, if the
prayer or relief sought is necessary to protect their interest in the
estate, and there is no other modality under the Rules by which such
interests can be protected.
Allowing creditors, contingent or otherwise, access to the records
of the intestate proceedings is an eminently preferable precedent
than mandating the service of court processes and pleadings upon
them. In either case, the interest of the creditor in seeing to it that
the assets are being preserved and disposed ofin accordance with the
rules will be duly satisfied.
Nonetheless, in the instances that the Rules on Special Pro-
ceedings do require notice to any or all "interested parties," the
petitioners, as "interested parties," will be entitled to such notice.
The instances when notice has to be given to interested parties
are provided in: (1) Section 10 of Rule 85 in reference to the time
and place of examining and allowing the account of the executor or
administrator; (2) Section 7(b) of Rule 89 concerning the petition to
authorize the executor or administrator to sell personal estate, or to
sell, mortgage or otherwise encumber real estates; and (3) Section
1 of Rule 90 regarding the hearing on the application for an order
to distribute the estate residue. After all, even the administratrix
has acknowledged in her submitted inventory, the existence of t he
pending cases filed by the petitioners.
CHAPTER2
RULE 73
SUBJECT OF ESTATE OF DECEASED PERSONS
(BAR QUESTIONS: 2003, 2005, 2009)
1.01 EXPLAIN SPECIAL PROCEEDING RELATIVE TO THE
SETTLEMENT OF ESTATE OF DECEASED PERSON.
Special proceeding relative to the settlement of th e estate of a
deceased person may either be testate or intestate. Where the deceased
person left no will, the proceeding shall be intestate an d where there
is a will, the proceeding is testate. In which case, the probate of a will
i.s mandatory. The same takes precedence over intestate proceedings.
'l'his being so, the institution of intestate proceeding in another place
may not proceed while the probate of a purported will of the deceased
iR pending in another place.
1.02 WHEN MUST THE CLAIMS AGAINST THE DECEASED
PERSONS BE FILED?
Claims against deceased persons should be filed during the
11ottlement proceedings of their estate. Such proceedings are primarily
Koverned by special rules found under Rules 73 to 90 of the Rules,
nlthough rules governing ordinary actions may, as far as practicable,
upply suppletorily. (Heirs of the Late Sps. Flauiano Maglasang and
8cilud Adaza-Maglasang, et al. u. Manila Banking Corporation, G.R.
No. 171206, September 23, 2013)
1.08 WHICH COURT HAS JURISDICTION OVER PROBATE
PROCEEDING?
Pursuant to R.A. No. 7691, the question as to which court shall
11x1 •l'cise jurisdiction over pr obate proceedings depends upon the gross
vn luo of the estate of the decedent. In Metro Manila, the Municipal
'l l'i 11 l Court has jurisdiction on the said proceeding if the value of
1
I lin estate does not exceed P400,000.00, otherwise, the Regional
'l'l'inl Court has jurisdiction over the same. Outside Metro Manila,
11
12 SPECIAL PROCEEDINGS RULE 73 13
Subject of Estate of Deceased Persons

Municipal Trial Courts, Metr opolitan 'I'rial Courts and Municipal

2. In case the decedent is a non-
Circuit Trial Courts have jurisdiction over probate proceedings if
resident of the Philippines at the
the gross value of the estate left by the decedent does not exceed time of his death, ven ue lies in an y
P300,000.00 beginning April 16, 2004 (before the said date, it was province in which he had an
P200, 000. 00). estate.

1.04 WHERE IS THE VENUE OF THE SETTLEMENT OF 2. Escheat 1. RTC of province wh ere the
(Rule 91) deceased last resided.
ESTATE PROCEEDING?
2. In case the decedent is a non-
The residence of the decedent at the time of his death is deter- resident of the Philippines at the
minative of the venue of the proceedin g. It is only where the decedent time of his death , ven ue lies in
was a non-resident of the Philippines at the time of his death that any province in which he had an
venue lies in any province in which he had estate. estate.

1.05 WHAT IS THE MEANING OF THE TERM "RESIDES"?

a. Guardianship 1. Family Court of province or city
where the minor actually resides.
a . Rule on Guardianship
"Resides" should be viewed or understood in its popular sense, of Minors 2. If the minor resides in a foreign
meaning, the personal, actual or physical habitation of a person, (A.M. No. 03-02-05-SC) country, in the Family Court of
actual residence of place of abode. It signifies phys ical presence in a the provi nce or city where his
place and actual stay ther eat. In this popular sense, the term means pr operty or any part thereof is
merely residence, that is, personal residence, not legal residence or situated.
domicile. Residence simply requires bodily presence as an inhabitant b. Guardianship over 1. RTC of the pr ovince or city where
in a given place, while domicile requires bodily presence in that incompetent persons incompetent per son last resided.
particular place and also an intention to make one's domicile. No who are not minors 2. If the incompetent person resides
particular length of time of r esidence is required though; however, under the Rules of in a foreign cou ntry, in the Family
Court (Rules 92-97) Court of the province or city where
the residence must be more than temporary. (Garcia Fule v. CA, 74
SCRA 189) his property or any part thereof
is situated.
Venue for ordinary civil actions and that for special pr oceedings
have one and the same meaning. As thus defined, "residence," in the ,1. The Rules of Adoption 1. Family Court of province or
context of venue provisions, means nothing more than a person's (A.M. No. 02-6-02-SC) city where prospective adoptive
par ents reside.
actual residence or place of abode, provided he resides ther ein with u. If filed under the
continuity and consistency. (Quiazon v. Belen, G.R. No. 189121, July Domestic Adoption 2. If the petition is for R escission of
31, 2013) Act (R.A. No. 8552) Adoption of the A doptee-Family
Court of the city or province where
the adoptee resides. (Sec. 19)
1.06 COMPARATIVE TABLE ON JURISDICTION AND VENUE
IN SPECIAL PROCEEDINGS b. If filed under the 1. Family Court having jurisdiction
Inter-Country over the place where the child
Kind of Special Proceedings Jurisdiction and Venue Adoption Act resides or may be found (filed by a
(R.A. No. 8043) foreign national or Filipino citizen
1. Settlement of Estate 1. RTC or MTC (depending on the permanently residing abroad).
(Rule 73) gross value of the estate) of the
2. It may be filed directly with the
province where the deceased last Inter-Country Adoption Board.
resided.
14 SPECIAL PROCEEDINGS
5. Habeas Corpus 1. If filed with RTC, where the
person is detained. SC, CA, and
a. Habeas Corpus for
illegal confinement or RTC have concurrent jurisdiction.
detention (Rule 102) *The writ of habeas corpus issued
by the RTC shall be enforceable
only within its judicial region
(Sec. 21, B.P. Blg. 129).
b. Habeas Corpus for 1. Family courts have exclusive
custody of minors jurisdiction (Family Courts Act
(A.M. No. 03-04-04 SC) of 1997 [R.A. No. 8309]).
2. Under the Rule on Custody
of Minors and Writ of Habeas
Corpus in relation to Custody of
Minors (A.M. No. 03-04-04-SC),
the petition may be filed with
SC, CA or any of its members,
and, if so granted, the writ shall
be enforceable anywhere in the
Philippines.
6. Amparo SC, CA and Sandiganbayan, RTC
(A.M. No. 07-9-12-SC) If with the RTC:
The place where the threat, act or
omission was committed or any of its
elemen ts occurred. (Sec. 3)
7. Habeas Data SC, CA and Sandiganbayan when
(A.M. No. 08-1-16-SC) the action concerns public data or
files of government offices
If with the RTC:
1. where petitioner resides; or
2. where respondent resides; or
3. that which has jurisdiction
over the place where data or
information is gathered, collected
or stored, at the option of
petitioner. (Sec. 3)
8. Change of Name RTC of the province where the
(Rule 103) petitioner resides. (Sec. 1)
9. Absentees RTC of place where absentee resided
(Rule 107) before his disappearance. (Sec. 1)
RULE73 15
Subject of Estate of Deceased Persons
10. Cancellation or RTC of the province whe1·e t he corres-
Conection of Entries ponding Local Civil Registrar of place
is located. (Sec. 1)
(Rule 108)
11. The Clerical Error Act 1. Local civil registry office of the city
(R.A. No. 9048) or municipality where the record
being sought to be corrected or
changed is kept;
2. Local civil registrar of the place
where the interested party is
presently residing or domiciled;
3. Philippine Consulates
L.07 WHAT ARE THE POSSIBLE CONSEQUENCES IF, I N
THE COURSE OF INTESTATE PROCEEDING, A WILL
IS LATER DISCOVERED?
Whether the intestate proceeding already commenced should
ho discontinued and a new proceeding under a separate number and
Litle sh ould be constituted is entirely a matt er of for m and lies within
Lhe sound discretion of the court. In no matter does it prejudice
the substantial rights of any of the heirs or creditors. (Reynoso v.
Santiago, 85 Phil. 268, 270)
It has been h eld that the probate of the will is mandatory. It
IH anomalous that the estate of a person who died testate should
1,o settled in an intestat e proceeding. Therefore, th e intestate case
11hould be consolidated with the testate proceeding and t he judge
11 Hsigned to the testate proceeding should continu e hearing the two
1•11 ses. (Roberts v. Leonidas, 129 SCRA 33)
If in the course of the intestate proceedings, it is found that the
d11cedent had left a last will, proceedings for the probate of the latter
tl hould replace the intestate proceedings even if at th at stage, an
Hdministrator had already been appointed, the latter being required
In l'Onder a final account and turn over the est ate in his possession to
1110 executor subsequently appointed. This, however, is understood
lo be without prejudice that the proceeding shall continue as an
111Lestacy. (Uriate v. CFI of Negros, 33 SCRA 252, 259)
However, the mere discovery of a document purporting to be
I ho last will and testament of the decedent after appoint ment of an
11 dministrator and assumption that th e decedent died intestate does
1101,, however, ipso facto nullify the letters of administration already
 16 SPECIAL PROCEEDINGS
issued or even authorize their revocation until the will has been
proved and allowed. (Advincula v. Teodoro, 99 Phil. 413)
1.08 WHAT IS THE NATURE OF THE SETTLEMENT OF
ESTATE PROCEEDINGS?
The settlement of a decedent's estate is a proceeding in rem
which is binding against the whole world. All persons having interest
in the subject matter involved, whether they were notified or not, are
equally bound. (Philippine Savings Bank v. Lantin, 124 SCRA 483)
1.09 WHAT MUST BE DONE IF THE NOTARIAL WILL IS
CONTESTED?
For notarial wills, Section 11 of Rule 76 provides that if the will
is contested, all the subscribing witnesses, and the notary in the case
of wills executed under the Civil Code of the Philippines, if present in
the Philippines and not insane, must be produced and examined, and
the death, absence, or insanity of any of them must be satisfactorily
shown to the court.
If all or some of such witnesses are present in the Philippines
but outside the province where the will has been filed, their deposition
must be taken.
If any or all of them testify against the due execution of will, or
do not remember having attested to it, or are otherwise of doubtful
credibility, the will may nevertheless, be allowed if the court is satis-
fied from the testimony of other witnesses and from all t he evidence
presented that the will was executed and attested in the manner
required by law.
It is an established rule that "[a] testament may not be
disallowed just because the attesting witnesses declare against its
due execution; neither does it have to be necessarily allowed just
because all attesting witnesses declare in favor of its legalization;
what is decisive is that the court is convinced by evidence before it,
not necessarily from the attesting witnesses, although they must
testify, that the will was or was not duly executed in the manner
required by law." (Baltazar v. Laxa, G.R. No. 174489, April 11, 2012)
1.10 WHAT IF A HOLOGRAPHIC WILL IS CONTESTED?
The possibility of false document being adjudged as the will of
the testator cannot be eliminated, which is why if the holographic
RULE 73 17
Subject of Est ate of Deceased Per sons
will iHcontested, the law r equires thr ee witn esses t o declare that the
wtl l wus in the handwriting of t he deceased. (Cadoy v. Calugay, G.R.
Nu. I23486, August 12, 1999)
It should be noted that 2nd paragraph of Section 11, Rule 76
p1•nvides that, "If a holographic will is contested, the sam e shall be
11 llnwcd if at least three witnesses who know the handwriting of th e
1,,111,ntor explicitly decla1·e that t he will and the signature ar e in th e
lrn 11dwriting of the testator; in th e absence of any competent witness,
11 11d if the court deem it n ecessary, expert testimony may be resorted
I 11,"
1, 11 CAN THE PROBATE COURT ISSUE WRITS OF EXECU-
TION?
No. As a rule, the probate court cannot is sue writs of execution
l11w11use its orders usually refer to th e adjudicat ion of claims a gainst
111<, estate which the executor or administ rator may s atisfy without
I hu need of executor processes.
I , l2 ARE THERE EXCEPTIONS?
The court may issue writs of execution on the following:
1. To satisfy the contributive shar es of the devisees, legatees
and heirs on possession of the decedent's assets a s laid
down in Rule 88, S ection 6;
2. To enforce payment of the expen ses of partition under
Rule 90, Section 3;
3. To satisfy the cost when a person is cited for examina tion
in probate proceedings under R u le 142, S ection 13.
I , 13 BAR Q. [2005)
x x x (3) State the rule on venue in judicial settlement of
11Htute of deceased person.
SUGGESTED ANSWER:
Rule 73 of the Rules of Court expressly declares that if the
d1 ·<·cdent is an inhabitant of the Philippines at the t ime of his deat h ,
whether a citizen or an alien, his will shall be proved, or let ter s of
11dministration granted, and h is estate settled, in th e Regional Trial
c:ourt in the province in which h e resides at t he time of his dea th ,
11 1ul if he is an inhabitant of a foreign country, the Regional Trial
18 SPECIAL PROCEEDINGS
Court of any province in which he had estate. The court first taking
cognizance of the settlement of t he estate of the decedent, shall
exercise jurisdiction to the exclusion of all other courts.
In case the marriage is dissolved by the death of t he husband or
wife, Section 2 of the said rule provides that the community property
shall be inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the deceased
spouse. If both spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of either.
Note the changes made by R.A. No. 7691 on jurisdiction.
1.14 BAR Q. [2003]
A, a resident of Malolos, Bulacan, died leaving an estate
located in Manila, worth P200,000.00. In what court, taking into
consideration the nature of jurisdiction and venue, should
probate proceeding on the estate of A be instituted?
SUGGESTED ANSWER:
The Municipal Trial Court of Malolos, Bulacan has jurisdiction
of the probate proceeding on t h e estate of A taking into account the
amount of the estate involved valued at ?200,000.00, (Sec. 33, B.P.
Blg. 129 as amended, Sec. 1, Rules of Court and R.A. No. 7691).
Venue is in Bulacan as A is a resident of Malolos, Bulacan at the
time of his death.
Note: The determination of which court exercises jurisdiction over
matters of probate depends upon the gross value of t he estate of the
decedent. R.A. No. 7691 provides that a municipal court has exclu-
sive original jurisdiction over probate proceedings, where the value
of the estate does not exceed P200,000.00 in places other than Metro
Manila (Beginning April 16, 2004 however, the jurisdictional amount
other than in Metro Manila is adjusted to P300,000.00).
2.01 SECTION 4, RULE 73 OF THE RULES OF COURT PRO-
VIDES FOR PRESUMPTION OF DEATH FOR PUR-
POSES OF SETTLEMENT OF ESTATE. CITE RELATED
PROVISIONS OF THE CIVIL CODE.
Some of the related Civil Code provisions are the following:
ARTICLE 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for
all purposes, except for succession.
RULE 73 19
Subject of Estate of Deceased Persons
The absentee shall not be presumed dead fo r the purpose of
opening his succession till a fter an absence of ten years. If he disap-
pears after the age of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be opened.
ARTICLE 391. The following shall be presumed dead for all
purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four years
since the lost of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;
(3) A person who has been in danger of death under other cir-
cumstances and his existence has not been known for four years.
ARTICLE 392. If the absentee appears, or without appearing
his existence is proved, he shall recover his property in the condition
in which it may be fou nd, and the price of any property that may
haue been alienated or the property acquired therewith; but he cannot
claim either fruits or rent.
2.02 BAR Q. [2009]
Frank and Gina were married on June 12, 1987 in Manila.
Barely a year after the wedding, Frank exhibited a violent
temperament, forcing Gina, for reasons of personal safety, to
llve with her parents. A year thereafter, Gina found employ-
ment as a domestic helper in Singapore, where she worked
l'or ten consecutive years. All the time she was abroad, Gina
hud absolutely no communications with Frank, nor did she
lwur any news about him. While in Singapore, Gina met and
l'oll in love with Willie.
On July 4, 2007, Gina filed a petition with the RTC of
Manila to declare Frank presumptively dead, so that she could
marry Willie. The RTC granted Gina's petition. The Office of
I.ho Solicitor General (OSG) filed a Notice of Appeal with the
lt'l'C, stating that it was appealing the decis ion to the Court of
Appeals on questions of fact and law.
Is a petition for Declaration of Presumptive Death a
Hpoc ial proceeding? Why or why not?
20 SPECIAL PROCEEDINGS
SUGGESTED ANSWER:
A petition for declaration of presumptive death is not included
in the enumerations falling as a subject matter of a special proceed-
ing under Section 1 of Rule 72 . Such petition under Article 41 of the
Family Code is a summary proceeding for the purpose of remarriage
of the pres ent spouse. However, it is in a nature of a special proceed-
ing because it is an application that seeks t o establish a status or a
particular fact.
2.03 IS PARTITION PROPER WHEN THERE REMAINS AN
ISSUE AS TO THE EXPENSES CHARGEABLE TO TJIE
ESTATE?
No, in a situation where there remains an issue a s t o the
expenses chargeable to the estate, partition is inappropriate. In
the case of Gerilla v. Carolina vda. de Figuracion, et al., G.R. No.
154322, August 22, 2006, while petitioner points out that the estate
is allegedly without an y debt and she and respondents are the only
legal h eirs, she does not dispute the finding of the CA that "certain
expenses" including those r elated to her father's final illness and
burial h ave not been properly settled.
The h eirs, petitioner and respondents in this case, have to s ub-
mit their father's estate to settlem ent because the determination of
these exp enses cannot be done in an action for partition.
In estate settlement proceedings, there is a proper procedure
for th e accounting of all expenses for which the estate must answer.
If there is any consolation at all to petitioner, t h e h eirs or distributees
of the properties may ta ke possession thereof even before the settle-
ment of accounts, as long as th ey first file a bond conditioned on the
payment of the estate's obligation s.
2.04 CASES
1.
QUIAZON v. BELEN
G.R. No. 189121, July 31, 2013
DOCTRINES:
1. Under Section 1, Rule 73 of the Rules of Court, the petition
for letters of administration of the estate of a decedent
should be filed in the RTC of the province where the
decedent resides at the time of his death.
RULE73 21
Subject of Estate of Deceased Persons
2. As thus defined, "residence," in the context of venue
provisions, means nothing more than a p erson's actual
residence or place of abode, provided he resides therein
with continuity and consistency.
FACTS: Eliseo Quiazon died intestate. A petition for Letters of
Administration of his estate was filed by h is common-law wife
Lourdes and his dau ghter Elise. This was opposed by the decedent's
wife Amelia and children Jenneth and Jennifer on the ground of
improper venue. The latter claimed that it should h ave been filed
in Capas, Ta rlac where Eliseo is a resident of and not in Las Pin.as
where he lived at t he t ime of his death.
ISSUE: Whether or not the proper venue for the filing of the
Letters of Administration is in Las Pifias City or in Capas,
Tarlac.
SUPREME COURT'S RULING: The case was properly filed in Las
Piiias City, the place where the decedent resides at the time of his
death.
Under Section 1, Rule 73 of the Rules of Cou rt, the petition for
letters of administration of the estate of a decedent should be filed
in the RTC of the province where the decedent resides at the time of
his death:
"Sec. 1. Where estate of deceased persons settled. - If the
decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the
Court of First I nstance now R egional Trial Court in the province
in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First I nstance now
R egional Trial Court of any province in which he had estate. The
court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other
courts. 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."
The term "r esides" connotes ex vi termini "actual residence" as
distinguished from ''legal r esidence or domicile." The term "resides,"
like the terms "r esiding" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or
22 SPECIAL PROCEEDINGS RULE 73 23
Subject of Estate of Deceased Persons

rule in which it is employed. In the application of venue statutes SUPREME COURT'S RULING: The Court lays down the doctrina l
and rules - Section 1, Rule 73 of the Revised Rules of Court is of rnle that the term 'resides' con notes ex vi termini 'actual residence'
such nature - r esidence rather than domicile is the significant factor. ns distinguished from 'legal residence or domicile.' This t erm
Even when the statute uses the word "domicile" still it is construed 'resides,' like the terms 'residing' an d 'residence' is elastic and should
to mean residence and not domicile in the technical sense. In other be int erpreted in the light of th e object or purposes of the statute or
words, "resides" should be viewed or understood in its popular sense, rule in which it is employed.
meaning, the personal, actual or physical habitation of a person,
actual residence or place of abode. It signifies physical presence in Sect ion 1, Rule 73 of the Revised Rules of Court states that
a place and actual stay thereat. Venue for ordinary civil actions and residence rather than domicile is th e significant factor in determinin g
that for special proceedings have one and the same meaning. As thus venue. Even where the statute uses the word 'domicile' still, it is
defined, "residence" in the context of venue provisions, means nothing construed as residence and not domicile in the t echnical sense. Some
more than a person's actual r esidence or place of abode, provided he cases mak e a distinction between the terms 'residen ce' a nd 'domicile'
resides therein with continuity and consistency. but as generally used in statutes fixing venue, the terms ar e syno-
nymous, and convey the same meaning as th e term 'inhabitant.' In
2. other words, 'resides' should be viewed or understood in its popular
SALUDO, JR. v. AMERICAN EXPRESS Hense, meaning, the persona l, actual or physical h abitation of a
INTERNATIONAL, INC. person, actual residence or place of abode. Residen ce simply r equires
G.R. No. 159507, April 19, 2006 bodily presence as an inh abitant in a given place, while domicile
1·cquires bodily presence in th at place and also an intention to mak e
DOCTRINE: Section 1, Rule 73 of the Revised Rules of Court
it one's domicile. No particular length of time ofresidence is requir ed
states that residence rather than domicile is the significant
!,hough; however, the residence must be more tha n "temporary."
factor in determining venue.
FACTS: Aniceto G. Saludo, Jr. filed a complaint for damages against
AMEX and/or its officers with the RTC ofMaasin City, Southern Leyte.
The complaint alleged, inter alia, that plaintiff (herein petitioner
Saludo) "is a Filipino citizen, oflegal age, and a member of the House
of Representatives and a resident of Ichon, Macrohon, Southern
Leyte, Philippines." The complaint's cause of action stemmed from
the alleged wrongful dishonor of petitioner Saludo's AMEX credit
card and the supplementar y card issued to his daughter.
Respondents averred that the complaint should be dismissed
on the ground that venue was improperly laid because none of the
parties was a resident of Leyte. They alleged that respondent s were
not residents of Souther n Leyte. Moreover, notwithstanding the
claim in his complaint, petitioner Saludo was not allegedly a resident
thereof as evidenced by the fact that his community tax certificate,
which was presented when he executed the complaint's verificat ion
and certification of non-forum shopping, was issued in Pasay City.
ISSUE: Whether or not the appellate court committed rever-
sible error in holding that venue was improperly laid because
not one of the parties, including petitioner Saludo was a
resident of Southern Leyte at the time of filing of the complaint.

24 SPECIAL PROCEEDINGS
FORM: PETITION FOR THE SETTLEMENT
OF THE INTESTATE ESTATE
Republic of the Philippines
National Capital Judicial Region
Regional Trial Court, Branch 224
Quezon City
In the Matter of the Settlement
of the Intestate Estate ofX and the Issuance
of Letters of Administration
Juan Dela Cruz,
Petitioner,
x----------------------------------x
PETITION
COMES NOW, the Petitioner, by counsel and to this to this Honorable
Comt, most respectfully alleges:
1. Petitioner is of legal age, Filipino, married and with residence
address at . He is one of the principal cr editors of
the deceased.
2. On November 10, 2009, X died without leaving any will. At the
time of his death, he was a resident of No. _ _ _ _ _ __
3. The deceased was survived by the following compulsory heirs,
namely: G, surviving spouse and legitimate children R, Wand B, all of legal
age and r esidents of No. xx x Tandang Sora Ave., Quezon City.
4. The deceased left several properties at the time of his death,
consisting primarily of real estate properties in Quezon City with a total
market value of six million (P6,000,000.00) pesos and assessed value of four
million (P4,000,000.00) pesos.
5. The deceased also left several obligations and personal debts at
the time of his death, which needed to be settled before the estate is finally
distributed to the heirs. Part of this debt include various mortgage loans
annotated in the titles and the sum of two million four pesos (P2,000,004.00),
which the deceased owed the petitioner as of 5 October 2009, as evidenced
by the statement of account prepared by the accountant of the deceased
hereto attached as Annex ''A" and forms an integral part of this petition.
6. To finally settle the estate of the deceased, petitioner, being one
of the principal creditors of the deceased, would like to seek for the issuance
by this Honorable Court of Letters of Administration in order to make a
full inventory and accounting of his estate, administer such estate, and
RULE 73 25
Subject of Estate of Deceased Persons
Bettle any or all claims for and against such estate dming the pendency
of the estate proceedings pr ior to the distribution of the net estate to the
compulsory heirs in view of the apparent neglect and/or continuing refusal of
the compulsory heirs to settle such estate to the great damage and prejudice
of the creditors like herein petitioner. A copy of the demand letter sent by
petitioner, through counsel, to the heirs of the deceased is hereto attached as
Annex ''B" and forms an integral part of this petition.
7. Petitioner is not per sonally aware of any judicial proceeding
commenced by the heirs or by the other interested par ties t o settle the estate
of the deceased since th e death of X on November 10, 2009. Petitioner, as
t·t·editor, may ther efore, be appointed as an administrator of the estate. Sec.
G, Rule 78 of the Rules of Court provides: "If no executor is named in the
will, or the executor or executors are incompetent, refuse the trust or fail to
l,(ive bond, or a person dies intestate, administration shall be granted:
(a) To the sur viving husband or wife, as the case may be, or
next of kin, or both, i n the discretion of the court, or to such person
as such surviving h usband or wife, or next of kin, request s to have
appointed, if competent and willing to serve,
(b) Ifsuch surviving husband or wife, as the case may be or next
of kin, or the person selected by them, be incompetent or unwillinir,
or if the husband or widow, or next of kin, neglects for thirty (30)
days after death of the person to apply for administration or to
r equest that administration be granted to some other person, it may
be granted to one or more of the principal creditors, if competent and
willing to serve, xx x" (emphasis ours)
8. Petitioner has none of the disqualifications under Section 1, Rule
'/H of the Rules of Comt, as amended.
9. Petitioner is th us qualified under the law, and is competent and
willing to assume such solemn duty of administering the estate of the
ilncoased, whom he considers as his best friend and brother anyway during
lih1 lifetime . And for this purpose, petitioner is willing to post a bond that
11111y be fixed by this Honorable Court conditioned upon the circumstances
1111umerated under Section 1, Rule 81 of the Rules of Court, as amended.
WHEREFORE, premises considered, it is most respectfully prayed of
1liiH Honorable Court, that after due notice, settlement and partition of the
l11it·Htate estate of X for the benefit of all the compulsory heirs be rendered
liy Lhis Court in accordance with law.
Petitioner prays for such other reliefs just and equitable in the
JH'n Ill ises
10 J anuary 2011, Quezon City.
26 SPECIAL PROCEEDINGS
JUAN DELA CRUZ
Roll No. 40123
PTR No. 8332143 1/14/2015
IBP No. 690130 1/8/2015
MCLE Compliance IV-0008269-02/28/10
Tel. No. (02) 416-3900
Cell Phone No. 0920 1234567
E-Mail Address: ihimfes2@yahoo.com
No. 222 Wheels Executive Suites
Wheels Bldg. , E. Rodriguez Sr. Avenue, Quezon City, 1102
VERIFICATION AND CERTIFICATE OF NON-FORUM SHOPPING
RULE 74
SUMMARY SETTLEMENT OF ESTATES
(BAR QUESTIONS: 1994 [Sections 1 and 2],
1998,2001,2005,2009)
1.01 WHAT IS THE RULE WITH RESPECT TO THE ESTATE
LEFT BY THE DECEDENT?
The general rule is that when a person dies leaving property, the
,mme should be judicially administered and the competent court
tthould a ppoint a qualified administrator, in the order established in
Hcction 6 of Rule 78, in case the deceased left no will, or in case he
hnd left one, should he fail to name an executor therein. (Utulo u.
l'nsion Vda. de Garcia, 66 Phil. 303)
1.02 ARE THERE EXCEPTIONS TO THE RULE THAT THE
ESTATE SHOULD BE JUDICIALLY ADMINISTERED?
Yes. This Rule provides two exceptions, namely:
(1) Extrajudicial settlement (Sec. 1); and
(2) Summary settlement of estates of small value (Sec. 2).
I .OH BAR Q. [2001]
The rules on special proceedings ordinarily require that
I ho estate of the deceased should be judicially administered
IIt rough an administrator or executor. What are the two ex-
111,ptions to the said requirement?
SUGGESTED ANSWER:
The two exceptions to the rule that t he estate of the deceased
• lwuld be judicially administered through an administrator or exe-
111101" are the following:
1) If the decedent left no will and no debts and the heirs are
11 11 of' legal age, the parties may, without securing letters of admin-
l11l 1·11 Lion, divide t he estate among themselves by means of public ins-
I1111nont or by stipulation in a pending action for partition and shall
27
28 SPECIAL PROCEEDINGS RULE 74 29
Summary Settlement of Estates

file a bond with the register of deeds in an amount equivalent to the 1.05 WHAT ARE THE REQUISITES OF A VALID EXTRA-
value of the personal property involved as certified to under oath by JUDICIAL SETTLEMENT?
the parties concerned. The fact of extrajudicial s ettlement sh all be
The following are the r equisites of a valid extr ajudicial settle -
published in a newspaper of general circulation once a week for three ment:
consecutive w eeks in the province.
(1) The decedent died in testate;
2) Whenever the gross value of the estate of a deceased
person, whether he died testate or intestate, does not exceed ten (2) The estate has no ou tstanding debts at th e time of t he
thousand pesos, and that fact is made to appear to the Regional Trial settlement;
Court having jurisdiction of the estate by the petition of an interested (3) The heirs are all of age, or the minors are represented by
person and upon hearing, which shall be held not less than (1) month their judicial guardian s or legal r epresentatives;
nor more than three (3) months from the date of the last publication
of a notice which shall be published once a week for three consecutive (4) The settlement is made in a public instrument , stipulation
weeks in a newspaper of general circulation in the province, and or affidavit duly filed with the r egister of deed; and
after such other notice to inter ested persons a s t he court may direct, (5) The fact of such judicial settlement mu st be publish ed in
the court may proceed summarily, without the appointment of an a newspaper of gen er al cir culation in the province once a
executor or administrator, to settle the estate. week for three con secu tive weeks.
(6) In case of personal property, a bond equivalent to th e value
1.04 DISTINGUISH EXTRAJUDICIAL SETTLEMENT UN-
of personal property p osted with the Register of Deeds is
DER SECTION 1 FROM SUMMARY SETTLEMENT OF required.
ESTATES OF SMALL VALUE UNDER SECTION 2 OF
RULE 74.
1.06 WHAT IS SUMMARY SETTLEMENT OF ESTATE OF
The distinctions are as follows: SMALL VALUE?
It is a summary proceeding for the s ettlement of t he estate of
EXTRAJUDICIAL SUMMARY 11 rloceased person whether he died testate or intestate if the gross
SETTLEMENT SETTLEMENT vn lue of the estate is Pl0,000.00 without need of an a ppointment of
1. Does not require court 11 11 ndministr ator or executor.
Requires summary court
intervention. adjudication.
1.07 BAR Q. {2005]
2. The value of the estate is Applicable where the gross
immaterial. value of the estate is Pl0,000.00. x x x 2. Nestor died intestate in 2003, leaving no debt s.
The amount is jurisdictional. llow may his estate be settled by his heirs who are oflegal age
3. 1wd have legal capacity? Explain.
Allowed only in intestate Allowed in both testate and
succession. intestate estates. I SUGGESTED ANSWER:
I
4. Proper when there are no Available even if there are I
outstanding debts of the estate debts. 'l'he Rules of Court particularly Section 1 of Rule 74 is applicable
at the time of the settlement. 1111 I It o matter. If the decedent left n o will and no debts, a s in th e
1,11111 of Nestor, and the heirs are all of legal age, his h eirs may,
5. Instituted by agreement of all Instituted by any in terested
ff ll ltout securing letters of administration, divide the estate amon g
heirs. party a nd even by a creditor of
1ilu1111Holves by means of public instrument or by stipulation in a
the estate, without t he consent
of all the heirs. J11•111li11g a ction for partition and shall file a bond with th e r egister of
1h ,rnlt1 in a n amount equivalent to t he value of the personal property
30 SPECIAL PROCEEDINGS
involved as certified to under oath by the p arties concerned. The
fact of extrajudicial settlement shall be published in a newspaper of
general circulation once a week for three consecutive weeks in the
province.
1.08 WHAT IS AN AFFIDAVIT OF SELF-ADJUDICATION?
It is an affidavit required by Section 1 of Rule 74 t hat is to
be executed by the sole heir of a deceased person in adjudicating
to himself the entire estate left by the decedent . It is filed with the
Registry of Deeds.
The Rule provides t hat t he sole heir who adjudicates the entire
estate to himself by means of an affidavit shall file, simultaneously
with and as a condition precedent to the filing ofthe public instrument,
or stipulation in the action for partition, or of the affidavit in the office
of the register of deeds, a bond with the said r egister of deeds, in an
amount equivalent to the value of the personal property involved as
certified to under oath by the par ties concerned and conditioned upon
the payment of any just claim that may be filed under Section 4 of
this rule
Adjudication by an heir of the decedent's entire estate to him-
self by means of an affidavit is allowed only if he is t h e sole heir to
the estate. (Delgado Vda. de De la Rosa v. Heirs of Marciana Vda. de
Damian, 480 SCRA 334)
1.09 RECENT CASE
REBUSQUILLO and OROSCO v. SPS. GUALVEZ
G.R. No. 204029, June 4, 2014
SUPREME COURT'S RULING:
The Court cited the case of Portugal v. Portugal-Beltran where
it held that the respondent, believing rightly or wrongly that she
was the sole heir to Portugal's estate, executed on February 15, 1988
the questioned Affidavit of Adjudication under the second sentence
of Section 1, Rule 74 of the Revised Rules of Court. Said rule is an
exception to the general r ule that when a person dies leaving a
property, it should be judicially administered and the competent court
should appoint a qualified administrator, in the order established in
Section 6 of Rule 78 in case the deceased left no will, or in case he did,
he failed to name an executor t her ein.
RULE74 31
Summary Set tlement of Estates
In light of the admission of respondent-spouses Gualvez, the
court a quo had properly r en dered judgment on the validity of the
Affidavit of Self-Adjudication executed by Avelina. As pointed out by
Lhe trial court, an Affidavit of Self-Adjudication is only proper when
the affiant is the sole heir of the decedent. The second sentence of
Section 1, Rule 74 of the Rules of Court is patently clear that self-
ndjudication is only warranted when there is only one heir:
Section 1. Extrajudicial settlement by agreement between heirs.
- x x x If there is only one heir, h e may adjudicate to himself
the entire estate by mean s of an affidavit filed in the office of the
register of deeds. xx x (emphasis supplied)
As admitted by respondents, Avelina was not the sole heir of
1•:ulalio. In fact, petitioner Salvador is one of the co-heirs by right
nf representation of his mother. Without a doubt, Avelina had per-
jured herself when she declared in the affidavit that she is "the only
cluughter and sole heir of spouses EULALIO ABARIENTOS AND
VICTORIA VILLAREAL." The falsity of this claim renders her act of
ndjudicating to h erself the inheritance left by her father invalid.
1..10 WHEN DOES THE PRESUMPTION THAT THE DECE-
DENT LEFT NO DEBTS ARISE?
It shall be presumed t hat t he decedent left no debts if no credi-
t or files a petition for letters of administration within two years after
t lte death of the decedent .
1.11 BAR Q. [1994)
Rene died intestate, leaving several heirs and substan-
t,lul property here in the Philippines.
1) Assuming Rene left no debts, as counsel for Rene's
heirs, what steps would you suggest to settle Rene's
estate in the least expensive manner?
2) Assuming Rene left only one heir and no d ebt, a s
counsel for Rene's lone heir, what steps would you
suggest?
SUGGESTED ANSWER:
1)It is humbly submitted that to settle Rene's estate in the
l1111 Htexpensive manner, an extrajudicial settlement of estate by
11wocmen t of the parties should be made t hrough a public instrum ent
111 l,o filed with the register of deeds together with a bon d in an
32 SPECIAL PROCEEDINGS
amount equivalent to the value of the personal property involved as
certified under oath by the parties concerned and condit ioned upon
payment of any just claim that may be filed within two years by an
heir or other person unduly deprived of participation in the stat e.
2) Rene's lone h eir may adjudicate to h imself the entire
estate by executing an affidavit of self-adjudication to be filed with
the Register of Deeds and upon submission of other requirements.
1.12 BAR Q. [1998]
A, claiming to be an illegitimate child of the deceased
D, instituted an intestate proceeding to settle the estate of
the latter. He also prayed that he be appointed administrator
of said estate. S, the surviving spouse, opposed the petition
and A's application to be appointed the administrator on the
ground that he was not the child of her deceased husband
D. The court, however, appointed A as the administrator of
said estate. Subsequently, S, claiming to be the sole heir of D,
executed an affidavit of self-adjudication, adjudicating unto
herself the entire estate of her deceased husband D. S sold the
entire estate to X.
1. XXX
2. Was the action of Sin adjudicating the entire estate
of her late husband to herself legal?
SUGGESTED ANSWER:
The action of S in adjudicating the entire estate of her late
husband to herself is not legal because under the Rules of Court, an
affidavit of self-adjudication is allowed only if t he affiant is the sole
heir of the deceased. In this case, it appears that there is someone
who also claims to be an heir. The fact that there is a pending judicial
proceeding for the settlement of the estate would suggest t hat t here
is doubt as to whether she is in deed the sole heir to the estate.
S action therefore, is not proper.
1.13 BAR Q. [1994)
Rene died intestate, leaving several heirs and substantial
property here in the Philippines.
1) XXX
2) XX X
RULE 74 33
Summary Settlement of Estates
3) Assuming that t he value of Rene's estate does not
oxceed Pl0,000.00, what remedy is a vailable to obtain a speedy
Aettlement of his estate?
SUGGESTED ANSWER:
1) XXX
2) XXX
3) To obtain a speedy settlement of his estate, the remedy
11vailable is to proceed to undertake a summary settlement of estate
of small value under Section 2, Rule 74 of th e Rules of Court since
Ilene's estate does not exceed Pl0,000.00. The hearing shall be h eld
not less than one month nor more than three months from t he date of
l,he last publication of a n otice which shall be publish ed once a week
l'ol' three consecutive weeks in a newspaper of gen eral circulation
in the province, and after such other notice to interested persons as
Ihe court may direct, the court may proceed summarily, withou t the
nppointment of an executor or administrator, to settle the estate.
~.01 THE RULE BARS DISTRIBUTEES OR HEIRS FROM
OBJECTINGTOANEXTRAJUDICIALPARTITIONAFTER
TWO YEARS FROM SUCH PARTITION. IS THE RULE
APPLICABLE TO PERSONS WHO HAD NO KNOWLEDGE
OFIT?
No, th e limitations are not applicable. The provisions of See-
l ion 4 of Rule 7 4 barring distributee or heirs from objecting to an
c•x Lraj udicial partition after t he expiration of two years from such
11,cl,rajudicial partition, is applicable only to:
(1) persons who have participated or taken part or had notice
of the extrajudicial partition; and, in addition,
(2) when the provisions of Section 1 of Rule 74, have been
strict ly complied with. (Sampio v. CA, 103 Phil. 71)
~. 02 IF A PERSON HAD NO KNOWLEDGE OR HAD NOT
PARTICIPATED IN THE EXTRAJUDICIAL SETTLE-
MENT, IS HE BOUND THEREBY BY REASON OF CON-
STRUCTIVE NOTICE OF PUBLICATION?
No. Publication in this case does not constitute constructive
1101ic·u. Extrajudicial
Settlement of Estates under Section 1 of Rule 74
34
SPECIAL PROCEEDINGS
is an ex parte proceeding, and the rule plainly st ates th at person s
who do not participate or h ad no notice of an extrajudicial settlement
will n ot be b ound thereby, and contemplates a n otice that ha s been
sent out or issued before an y deed of settlement or partition is agreed
upon, and not after such an agreement has already been executed.
The p ublication of the settlement does not constitute constructive notice
to the heirs who had no knowledge or did not take part in it because
th e same was notice after the fact of execution. The requirement of
publication is geared for the protection of creditors and was never
intended to d ep rive heirs of their lawful participation in the d ecedent's
estate. (Benatiro v. Heirs of Cuyos, 560 SCRA 478)
2.03 BAR Q. [2009]
Pinoy die d without a will. His wife, Rosie, and three child-
r e n executed a deed of extrajudicial settlement of his estate.
The deed was properly published and registered with the
Office of the Register of Deeds. Three years thereaft er, Suzy
appeared, claiming to be the illegitimate child of Pinoy. She
sought to annul the se ttleme nt alleging that sh e was deprived
of her rightful share in the estate. Ros ie and the three children
contended that (1) the publication of the deed cons tituted
constructive notice t o the whole world, and s hould therefore
bind Suzy; and (2) Suzy's action had alre ady prescribed. Are
Rosie and the three children correct? Explain.
SUGGESTED ANSWER:
No, the publication of the deed of extrajudicial partition does
not constitute const ructive notice to the whole world since Rule 74,
Section 1 provides that "no extrajudicial settlement sh all be binding
upon a ny person wh o h as not participated therein or h ad no notice
ther eof." Suzy's action h as not prescribed. Sh e can file the action
ther efore within four year s after the settlement was registered.
2.04 IF THE CLAIMANTIS AMINORORANINCAPACITATED
PERSON, WHAT IS THE PERIOD TO FILE THE CLAIM?
Section 5 provides th at if on the date of th e expiration of t he
period of two years prescribed in Section 4 the person authorized to
file a claim is a minor or mentally incapacitated, or is in prison or out -
side the Philippines, h e may present his claim within one year after
such disability is r emoved.
RULE 74 35
Summary Settlement of Estates
:t.05 MAY A PETITION FOR I SSUANCE OF LETTE RS OF
ADMINISTRATION BE CONVERTED I NTO AN ACTI ON
FOR JUDICIAL PARTITION?
Yes, when t he more expeditious remedy of partition is available
Io the heirs, t hen the h eirs or the majority of them may not be
r•ompelled to submit to a dministration proceedin gs. In t his case, all
I.he heirs, with the exception of one, agreed to ju dicial partition as
Lhey see it to be th e more convenient method. There is no merit to
1li.e contention th at a partition cannot be h a d becau se the extent of
Lile estate is not yet determined. (Maria Socorro v. Court of Appeals,
O.R. No. 115181, M arch 31, 2000)
It must be noted that the basis for converting the a ction is See-
l.ion 1, Ru le 7 4 of the Rules of Cou rt. It provides that in cases where
l,he heirs disagree as to the partition of the estate and no extraju di-
r•ial settlement is possible, t hen an ordinary action for partition ma y
ho resorted to. This is exemplified in t he case of -
MARIA SOCORRO AVELINO v. COURT OF A PPEALS
G.R. No. 115 18 1, Ma rch 31, 2000
l•'ACTS: Petitioner Maria Socorro Avelino is a dau ghter and com-
pulsory h eir of t he late Antonio Avelino, Sr., and the private respon -
dont is his wife, Angelina Avelino. Petitioner filed before the RTC a
petition for the issuance of let ters of a dminist ra tion of the estate of
Antonio Avelino, Sr., who died intestate on April 10, 1989. She asked
that she b e appointed t h e administrator of the est ate.
Respondents Angelin a and the siblings filed their opposition by
llling a mot ion to convert the said ju dicial proceedings to an action
1hr judicia l partition which p et itioner duly opposed.
Public respondent judge granted the part ition. Thus, petitioner
II led a motion for reconsidera tion which was den ied. P et itioner went to
i,lw Court of Appeals a n d quest ioned the grant of priva te respondents'
111otion to convert t h e judicial proceeding for the issuance ofletters of
11clministration t o a n action for judicial partition.
IHSUE: Whether or not respondent appellate court committed
1m error of law and gravely abused its discretion in upholding
/,he trial court's finding that a judicial partition is prop er.
HUPREME COURT'S RULING: The heirs succeed immediately to
11 ll
the rights and proper ties of the deceased at the moment of the
36 SPECIAL PROCEEDINGS
latter's death. Section 1, Rule 74 of the Rules of Court, allows heirs
to divide the estate among themselves without need of delay and
risks of being dissipated. When a person dies without leaving pend-
ing obligations, his heirs, are not required to submit the property for
judicial administration, nor apply for the appointment of an admin-
istrator by the court.
The Court of Appeals committed no reversible error when it
ruled that the lower court did not err in converting petitioner's action
for letters of administration into an action for judicial partition.
Nor can the Court sustain petitioner's argument that the Order
of the trial court converting an action for letters of administration
to one for judicial partition has no basis in the Rules of Court, hence
procedurally infirm. The basis for the trial court's Order is Section
1, Rule 74 of the Rules of Court. It provides that in cases where the
heirs disagree as to the partition of the estate and no extrajudicial
settlement is possible, then an ordinary action for partition may be
resorted to, as in this case.
3.01 CASE
SPS. BENATIRO v. HEIRS OF EVARISTO CUYOS
G.R. No. 161220, July 30, 2008
DOCTRINE: The publication of the settlement does not consti-
tute constructive notice to the heirs who had no knowledge or
did not take part in it because the same was notice after the
fact of execution.
FACTS: When Evaristo Cuyos died in 1966, he left six parcels of
land in Daanbantayan, Cebu. Gloria, one of Evaristo's nine children,
was appointed as administrator of his estate. Subsequently, Atty.
Taneo, the Clerk of Court of the CFI which granted the letters of
administration to Gloria, was appointed to act as Commissioner in
charge to effect the agreement of the heirs and to prepare the project
of partition of the estate.
In his report, Atty. Taneo stated that in a conference to arrive
at an agreement for partition attended by six out of nine heirs, it was
agreed that the properties of the estate would be sold to one of the
Columba Cuyos Benatiro, one of the heirs of the decedent. Finding
the terms of the agreement in order, the CFI approved the compro-
mise agreement embodied in the Commissioner's Report. Thus, to
implement the agreement, Lope, the new administrator, executed a
RULE 74 37
Summary Settlement of Estates
Deed of Absolute Sale in favor of Colu mba. Lat er, the titles to the
parcels of land acquired by Columba were subsequently tra nsferred
to Sps. Renato and Rosie Benatiro, also h erein petitioners.
In February 1998, or nearly 20 years later, fou r of the heirs,
Gloria, Patrocenia, Numeriano and Enrique, filed with th e CA a peti-
tion for the annulment of th e CFI order which approved the compro-
mise agreement, claiming that th e Commisioner 's Report practically
deprived them of due process, in th at no meeting between th e heirs
over took place and that they never received any payment from the
Hale of their share in the inherit ance. CA granted the petition and
nnnulled the CFI order, concluding th at the conference was not held
nccordingly. It rationalized that the Report never mentioned any of
Lhe names of those present , but only mention ed the names of th ose
who were absent; that the r eport did not contain the sign atures of
those present; and that no evidence of notice of the conference to the
l'espondents was presented. CA held that since the order stem med
l't·om a void compromise agreement, the annulled order had no legal
offect.
[SSUE: Whether or not the order of the trial court approving
the Commissioner's Report (on compromise agreement without
notice) is valid.
SUPREME COURT'S RULING: No. The assailed order, which
11pproved a void Commissioner's Report, is void for lack of due process.
In Cua v. Vargas, in which the issue was wh ether heirs wer e
deemed constructively notified of and bound by an extrajudicial
HCttlement and partition of the estate, regardless of their failure to
participate therein, when the extrajudicial settlement and partition
has been duly published, th e Court h eld:
The procedure outlined in S ection 1 of R ule 74 is an ex parte
11roceeding. The rule plainly states, however, that p ersons who do not
11articipate or had no notice of an extrajudicial settlement will not
he bound thereby. It contemplates a notice that has been sent out or
li1sued before any deed of settlement and / or p artition is agreed upon
(i.e., a notice calling all interested parties to pa rticipate in the said
tleed of extrajudicial settlement and partition), and not after such an
111{/'eement has already been executed as what happ ened in the instant
l'llse with the publication of the first deed of extrajudicial settlement
11mong heirs.
38 SPECIAL PROCEEDINGS
The publication of the settlement does n ot constitute construc-
tive notice to the heirs who had no knowledge or did not take part
in it because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of cr editors
and was never intended to deprive heirs of their lawful participation
in the decedent's estate. In this connection, t he records of the present
case confirm that respondents never signed either of t h e settlement
documents, having discovered their existence only shortly before the
filing of the present complaint. Following Ru le 74, these extrajudicial
settlements do not bind respondents, and the partition made without
their knowledge and consent is invalid insofar as they are concerned.
Applying the above-m entioned case by analogy, what mat t ers is
whether the heirs were indeed notified before the compromise agree-
ment was arrived at, which was not established, and not whet h er
they were notified of the Commissioner's Report embodying the
alleged agreement afterwards.
The Court also finds nothing in the records that would show
that the heirs were called to a hearing to validate the Report. The
CFI adopted and approved the Report despite the absence of the
signatures of all the heirs showing conformity thereto. The CFI
adopted the Report despite the statement therein that only six out
of the nine h eirs attended th e conference, thus, effectively depriving
the other heirs of their ch ance to be heard. The CFI's action was
tantamount to a violation of th e constitutional guarantee that n o
person shall be deprived of property without due process oflaw. The
Court finds that the assailed Order dated December 16, 1976, which
approved a void Commissioner's Report, is a void judgment for lack
of due process.
RULE 75
PRODUCTION OF WILL
ALLOWANCE OF WILL NECESSARY
(BAR QUESTIONS: 1990, 1992, 1999, 2005, 2006,
2007, 2010,2011)
1.01 EXPLAIN PROBATE OR ALLOWANCE OF WILLS.
It is the act of proving in cou rt a document purporting to be the
Inst will and testament of a certain deceased person for the purpose
of its official recognition, regist ration a nd car rying out its provision
in so far a s t hey are in accordance with law. (B lack's Law Dictionary)
1.02 IS ALLOWANCE OF A WILL NECESSARY?
Yes, the allowance of a will is necessary. Section 1 of Rule 75 is
11xplicit, "No will shall pass either real or personal estate unless it is
p1·oved a nd a llowed in the proper court."
1.03 IS THE PROBATE OF A WILL MANDATORY?
Yes. The probate of a will is mandatory. (Baluyot u. Panio, G.R.
No. L-42088, 71 SCRA 86)
1.04 DOES A WILL HAVE FORCE AND EFFECT EVEN IF
NOT PROBATED?
No. Until admitted to probate, a will h as no effect and n o right
be claimed thereunder. (Pascual u. Court of Appeals, 409 SCRA
1•1111
105)
1.06 BAR Q. [2007]
a. XXX
b. The heirs of H agree among themselves that t hey
will honor the division of H's e state a s indicated in her Last
Will and Testament. To avoid t he expense of g oing to c ourt
111 n Petition for Probate of the Will, can t hey instead execute
11 11 oxtrajudicial settlement agreement among t hemselves?
fllxplain briefly.
39
40 SPECIAL PROCEEDINGS
SUGGESTED ANSWER:
It is submitted that the heirs cannot extrajudicially enter into
any settlement without the will being probated. The law expressly
provides that no will shall pass either real or personal property unless
it is proved and allowed in court. The will must first be probated
before parties may enter into any extrajudicial agreement.
1.06 BAR Q. [2006]
Sergio Punzalan, Filipino, 50 years old, married, and
residing at Ayala Alabang Village, Muntinlupa City, of sound
and disposing mind, executed a last will and testament in
English, a language spoken and written by him proficiently.
He disposed of his estate consisting of a parcel of land in
Makati City and cash deposit at the City Bank in the sum of
P300 million. He bequeathed P50 million each to his 3 sons
and P150 million to Susan, his favorite daughter-in-law. He
named his best friend, Cancio Vidal, as executor of the will
without bond.
1. XX X
2. XXX
3, XXX
4. Can the widow and her children settle extrajudicially
among themselves the estate of the deceased?
SUGGESTED ANSWER:
No. The widow and her children cannot settle extrajudicially
among themselves the est ate of the deceased wit hout t h e will being
probated. Section 1 of Rule 75 of the Rules of Court expressly provides
that, "No will shall pass either real or pers onal estat e unless it is
proved and allowed in the proper court."
5. Can the widow and her children initiate a separate
petition for partition of the estate pending the probate of the
last will and testament by the court?
SUGGESTED ANSWER:
Pending the probate of the last will, the widow and h er children
cannot initiate a separate petition for partition of t h e estate. The
Rule provides that the will must first be probated before t h e property
may be settled or partitioned.
/'-...
RULE 75 41
P roduction of Will
Allowance of Will Necessary
1.07 BAR Q. [2005]
After Lulu's death, her h eirs brought her last will to a
lawyer to obtain their respective shares in the estate. The law-
yer prepared a deed of partit ion distribut ing Lulu's estate in
accordance with the terms of her will. Is t h e act of the lawyer
correct? Why?
SUGGESTED ANSWER:
It is submitted that the act of the lawyer is not correct. The
Rules of Court is clea r on the matter. No will sha ll pass either real or
personal estate unless it is proved and allowed in the proper court.
1.08 BAR Q. [1992]
The last will and testament of the deceased was presen ted
in the proceeding to settle h is estate and in due course hearing
was set for the probate of the will. Befor e evidence t hereon
could be presented, the legal h eirs of the deceased, his widow
and his two surviving daughters, filed a manifesta t ion that
the probate of the will would no longer be necessary since
they had already agreed to divide the net estate differently
in accordance with a p r oject of part ition attached to their
manifestation. Consequently, t hey moved that the project of
partition b e approved and forthwith impleme n ted without
probate of the decedent's will.
Should the court grant the heirs' mot ion and accordingly
npprove their project of partition without probate of the will?
l~xplain.
SUGGESTED ANSWER:
No, the court cannot approve a project of partition with out the
J)L'O bat e of the will because under the Rules of Court, "No will shall
pass either real or personal property unless it is proved and allowed
in the proper cour t."
1.09 IS A DECREE OF PROBATE CONCLUSIVE AS TO ITS
DUE EXECUTION?
Yes, such allowance of the will shall be conclusive a s to its due
i'XOcution as stated in Section l of Rule 75.
42 SPECIAL PRO CEEDINGS
A decree of probate is conclusive with respect to the due execu-
tion of the will and it cannot be impugned on any grounds except
that of fraud, in any separate or independent action or proceeding.
(Manahan v. Manahan, 58 Phil. 448, 45)
1.10 DUE EXECUTION CONNOTES THAT THE WILL WAS
EXECUTED IN ACCORDANCE WITH THE FORMALI-
TIES PRESCRIBED BY LAW. CITE THESE LAWS.
Due execution of the will or its extrinsic validity pertains to
whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. These formalities
are enshrined in Articles 805 and 806 of the New Civil Code, to wit:
Article 805. Every will, other than a h olographic will,
must be subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in his pres-
ence, and by his express direction, and attested and subscr ibed
by three or more credible witnesses in the presence of the testa-
tor and of one another.
The testator or the person requested by him to wr ite his
name and the instrumental witnesses of the will, shall also sign,
as aforesaid, each and every page thereof, except the last , on the
left margin, and all the pages s hall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state th e number of pages used upon
which the will is written, and the fact that the t estator signed
the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of
the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to t h em.
Article 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or file
another with the Office of the Clerk of Court. (M. Mateo, Nenita
A. Pacheco, Virgilio R egala, Jr., and Rafael Titco v. Lorenzo
Laxa, G.R. No. 174489, April 11, 2012)
RULE 75 43
Production of Will
Allowance of Will Necessary
1.11 GIVE THE CONCEPT AND EXTENT OF "DUE EXECU-
TION."
Due execution covers the following:
1. The will was executed in accor dance with the strict forma-
lities of the law;
2. The testator was of sound and disposing mind a t the time
of the execution of th e will;
3. Consent is not vitiated by any duress, fear or threats;
4. The will was not procured by any undue influence from the
beneficiary or by some other person for h is benefit; and
5. The signature of the testator is genuine.
t.12 MAYA PROBATE COURT PASS UPON THE INTRINSIC
VALIDITY OF A WILL?
No, in a special proceeding for the probate of a will, the issue by
1111d large is restricted to the extrinsic validity of the will, i.e. whether
Lhe testator, being of sound mind, freely executed the will in accor-
clunce with the formalities prescribed by law. As a rule, the question
of ownership is an extraneous matter which t he probate court cannot
1·csolve with finality. (Pastor, J r. v. CA, 122 SCRA 185)
l .13 THE RULE PROVIDES THAT "SUCH ALLOWANCE OF
THE WILL SHALL BE CONCLUSIVE AS TO ITS DUE
EXECUTION."EXPLAIN ITS MEANING.
The allowance of the will precludes any interested person from
questioning the due execution of the will but not the intrinsic validity
111' its testamentary provisions. Matters r elating to intrinsic validity of
11 will are governed by substantive law on inheritance and partition.
( /:state of Johnson, 39 Phil. 156)
1
1.l4 BAR Q. [2010]
Czarina died single. She left all her properties by will to
hor friend Duqueza. In the will, Czarina stated that she did
not recognize Marco as an adopted son because of his disres-
puctful conduct towards her.
Duqueza soon instituted an action for probate of Czari-
nn's will. Marco, on the other hand, instituted intestat e pro-
c•oedings. Both actions were consolidated before the RTC of
44 SPECIAL PROCEEDINGS
Pasig. On motion of Marco, Duqueza's petition was ordered
dismissed on the ground that the will is void for depriving
him of his legitime. Argue for Duqueza.
SUGGESTED ANSWER:
The dismissal of Duqueza's action for probate is not valid. The
probate court may only pass upon the ext rinsic validity of the will,
i.e., whether the testator, being of sound mind, freely executed the will
in accordance with the formalities prescribed by law. The issue as to
whether the will is void because an adopted child cannot be deprived
of his legitime involves intrinsic validity of the will. It is a settled r ule
that probate court is a court of limited jurisdiction. As such, it may
only determine and rule upon issues that relate to settlement of the
estate of deceased person such as the administration, liquidation and
distribution of the estate. Mat t ers relating to intrinsic validity of a
will are governed by substantive law on inheritance and partition.
( nppear that they sold the land to her when they did not, thus
1.15 BAR Q. [1999]
a) XXX
b) A's will was allowed by the Court. No appeal was
taken from its allowance. Thereafter, Y, who was interested
in the estate of A, discovered that the will was not genuine
because A's signature was forged by X. A criminal action for
forgery was instituted againstX. May the due execution of the
Will be validly questioned in such criminal action?
SUGGESTED ANSWER:
It is submitted that the due execution of the will cannot be
validly questioned in such criminal action since allowance of the
will from which no appeal was taken is conclusive as to its due
execution. Due execution includes a finding that the will is genuine
and not a forgery. Thus, the due execution of the will cannot again be
questioned in subsequent proceeding, not even in a criminal action
for forgery of the will.
1.16 IS THE DOCTRINE OF ESTOPPEL APPLICABLE IN
PROBATE PROCEEDINGS?
No, the doctrine of estoppel is not applicable in probate pro-
ceedings since the presentation and the probate of a will are required
by public policy. (Fernandez, et al. v. Dimagiba, L-23638, October 12,
1967)
RULE 75 45
Production of Will
Allowance of Will Necessary
1.17 WHAT ARE THE ISSUES THAT MAY BE BROUGHT
BEFORE THE PROBATE COURT?
The determination of whether a property should be included in
the inventory is within the jurisdiction of a probate court. (Munsayac-
De Villa v. Court of Appeals, 414 SCRA 436)
It may also include t h e determination of who are the heirs of
Lhe decedent; the validity of a waiver of hereditary rights; the status
of each h eir and all other matters incidental to the administration,
Hettlem ent and distribution of the estate.
1.18 BAR Q. [2011]
Apart from the case for the s ettlement of her parents'
estate, Betty filed an action against her sister, Sigma, for
reconveyance of title to a piece of land. Betty claimed that
Sigma forged the signatures of their late parents to make it
prejudicing Betty's legitime. Sigma moved to dismiss the
nction on the ground that the dispute should be resolved in
U1e estate proceedings. Is Sigma correct?
(A) Yes. question s of collation sh ould be resolved in the estate
proceedings. n ot in a separ ate civil case.
(B) No, since questions of ownership of property cannot be
resolved in the estate proceedings.
(C) Yes, in the sense t hat Bett y needs to wait until the estate
case has been terminated.
(D) No, t he filing of the separate action is proper; but the
estate proceeding must be su sp ended meantime.
1.19 IS A PROBATE COURT A COURT OF LIMITED JURIS-
DICTION?
Yes. A probate court is a court of limited jurisdiction. As such, it
n111y only determine and rule upon issues that r elate to settlement of
I Ito estate of deceased person su ch as the administrat ion, liquidation
11 11d distribution of the estate.
A probate court is a tribunal of limited jurisdiction. It acts on
11111tters pertaining to the estate but never on t h e rights to property
lll'iHin g from contract. (Pio B arreto Realty Dev., Inc. v. CA, L-62431,
I ,'I I S CRA 606)
 46 SPE CIAL PROCEEDINGS
When questions arise as to owners hip of property alleged to be
part of the estate of a deceased person, but claimed by some other
person to be his property, not by virtue of any right of inheritance from
the deceased and his estate, su ch questions ca nnot be determined
in the courts of a dministr ation proceedings. The t ria l cou rt, acting
as probate court, has no jurisdiction to adjudicate such contentions,
which mus t be submitted t o the trial court in t he exercise of its
general jurisdiction. (Ongsingco v. Tan, 97 Phil. 330, 334-335)
2.01 THE GENERAL RULE PROVIDES THAT A PROBATE
COURT CANNOT DECIDE A QUESTION OF TITLE
OF OWNERSHIP. ARE THERE EXC1tPTIONS TO THE
RULE? "
The probate court may pass upon the quest ion of t itle to property
on the following cases:
(a) The interested parties wh o are all h eirs of t h e deceased
consent thereto and the interests of t hird parties are not prejudiced;
(b) In a provisional manner , t o determine whether said pro-
perty should be included in or excluded from t h e inventory, with out
prejudice to the final determina tion of title in a separate action.
In Valera v. Inserto, 149 SCRA 533 (1987), th e Supreme Cour t
declared that where the det ermination by the proba te court wa s
merely provisional, it can not be th e subject of execution , especially
so, where the Torrens Title to the property is not in the decedent's
name but in others.
Likewise in Coca, et al. v. Pangilinan, et al. , L-27082, J a nuary
31, 1978 and in Mu nsayac-De Villa v. Court of Appeals, 414 SCRA
436, the Supreme Court r uled tha t a lthough , generally, a probate
court may not decide a question of title or ownership, yet if the
interest ed parties are all h eirs, or the question is one of colla tion or
advancement, or the parties consent to the assumption of jurisdiction
by the probate court and th e rights of thir d persons are not impair ed,
the probate court is compet ent t o decide the question of owner ship.
2.02 BAR Q. [2011]
In proceedings for the settlement of the estate of deceased
persons, the court in which the action is pending may properly
(A) pass upon question of ownership of a real property in the
na me of the deceased claimed by a stran ger .
RULE 75 47
Production of Will
Allowance of Will Necessary
(B) pass upon with the consent of all th e heirs the iss ue of
ownership of estate asset, con test ed by a n h eir if n o third
person is affected.
(C) rule on a claim by one of the h eirs that a n estate a sset was
held in trust for him by the decea sed.
(D) r escind a cont ract of lease entered into by the deceased 11
before deat h on the ground of contractual breach by the
lessee.
2.03 DISCUSS THE PRINCIPLE OF EXCLUSIONARY RULE
IN PROBATE PROCEEDINGS.
The rule provides t h at when a probate court first t akes cogni-
;,.ance and ju risdiction over the settlement of the estate of a deceased
person , it sh all continue to exercise jurisdiction over th e same to the
oxclu sion of other court s. Hence, upon assu mption, it cann ot th ere-
11fter be divest ed of such jurisdiction by the subsequ ent act s of the
parties as when they en ter into extraju dicial partition or by filing
1111other petition for settlement in a proper court of concurrent juris-
diction.
2.04 BAR Q. [1990]
Sammy Magdalo, executor of the estate of the deceased
Rolando Aceron, submitted an invent ory which includes a ten-
hectare lot occupied by Carlos Domingo. Domingo opposed
inclusion in the inventory of the proper ty claiming ownership
thereof. The probate cour t dir ect ed the executor and Domingo
to present evidence of own ership. Domingo refused to par-
Licipate in the proceedings, a sserting lack of jurisdiction on
the part of the probate court. The probate court nonetheless
proceeded with the hearing and render ed judgment declaring
the deceased to be the owner of the questioned property. The
1,r obate court directed Domingo to va cat e t h e premises.
I s the judgment cor rect ? Ex plain your answer.
SUGGESTED ANSWER:
The judgment is incorr ect since the court has n o jurisdiction to
n<ljudicat e title to the pr operties cla imed to be part of the est ate of the
deceased and by th ir d parties. However, it may make a provisional
determina tion for the pu rpose of including t he sa me in the invent or y
of th e esta te.
48 SPECIAL PROCEEDINGS RULE 75 49
P roduction of Will
Allowance of Will Necessary
2.05 IF A NOTARIAL WILL IS FOUND TO BE DEFECTIVE, 3. XXX
WILL ITS PROBATE BE DENIED?
4. XXX
Yes, a will whose attestation clause does not con tain the number
5. XXX
of pages on which the will is written is fatally defective. A will whose
attestation clause is not signed by the instrumental witnesses is SUGGESTED ANSWER:
fatally defective. And perhaps most importantly, a will which does
not contain an acknowledgment, but a mere jurat, is fatally defective. Yes. Section 2, Rule 75 of the Rules of Court expressly provides
Any one of these defects is sufficient to deny prob ate. A notarial will Lhnt the per son who h as custody of the will shall deliver th e same to
with all three defects is just aching for judicial rejection. Iho court having jurisdiction. Con sidering the fact t hat Susan h as a
There is a distinct and con sequential reason the Civil Code pro- t•opy of the will in h er possession, she, therefore, can be compelled t o
vides a comprehensive catalog of imperatives for they roper execution 1111bmit the same to the court.
of a notarial will. Full and faithful compliance wit:ft- all the detailed
requisites under Article 805 of the Code leave little room for doubt 11.01 WHAT IS THE DUTY OF AN EXECUTOR UPON KNOW-
as to the validity in the due execution of the notaria l will. Article 806 LEDGE OF THE DEATH OF THE TESTATOR?
likewise imposes another safeguard to t h e validity of notarial wills - The executor must present the will to the court and must accept
that they be acknowledged before a notary public by the testator and 111· refu se the trust.
the witnesses. A notarial will executed with indifference to t hese two
codal provisions opens itself to nagging questions as to its legitimacy. Section 3 of Rule 75 expressly states that a person named as
(Felix Azuela v. CA, G.R. No. 122880, April 12, 2006) 111wcutor in a will shall, within 20 days after he knows of the death
111' the testator, or within 20 days after h e knows t hat he is named
3.01 WHATISTHEDUTYOFACUSTODIANOF A WILL UPON 11xocutor if h e obtained such knowledge after the death of the testa-
KNOWLEDGE OF THE DEATH OF THE TESTATOR? lll t', present su ch will to the court h aving jurisdiction , unless the will

Section 2 of Rule 75 provides that the person who has custody lt11 H reached the court in an y oth er manner , and sh all, within such
of a will shall, within twenty (20) days after he knows of t he death of pnri od, signify to the cou rt in writing his acceptance of the trust or
the testator, deliver the will to th e court having jurisdiction , or to the ltl11refusal to accept it.
executor named in the will.
•L02 BAR Q. [2006]
3.02 BAR Q. [2006]
Same facts as that of 2.02
Sergio Punzalan, Filipino, 50 years old, married, and resi-
1. XXX
ding at Ayala Alabang Village, Muntinlupa City, of sound and
disposing mind, executed a last will and testament in English, a 2. XXX
language spoken and written by him proficiently. He disposed 3. XXX
of his estate consisting of a parcel of land in Makati City and
cash deposit at the City Bank in the sum of P300 million. He 4. XXX

bequeathed P50 million each to his three sons and P150 million
to Susan, his favorite daughter-in-law. He named his best friend,
Cancio Vidal, as executor of the will without bond.
1. X XX
2. Supposing the original copy of the last will and tes-
tament was lost, can Cancio compel Susan to produce a copy
in her possession to be submitted to the probate court?
o. Is Cancio Vidal, after learnin g of Ser gio's death,
111,11,.,;cd to file with the proper court a petition for p r obate of
I h,1lutter's will and testament?
SUGGESTED ANSWER:
Yes. Section 3, Rule 75 of t he Rules of Court is explicit. A person
11111 1111das executor in a will sh all, within 20 days after he knows of
 50 SPECIAL PROCEEDINGS
the death of the testator, or within 20 days after he knows that he is
named executor if he obtained such knowledge after t he death of the
testator, present such will to the court having jurisdiction. Consider-
ing the fact that Cancio Vidal is named as executor in the will, he is,
therefore, obliged to file a petition for probate of the will.
5.01 MAY MANDAMUS LIE TO COMPEL THE PRODUCTION
OF THE ORIGINAL WILL?
No, as held in the case of Uy Kiao Eng v. Nixon Lee, Q-.R. No.
176831, January 5, 2010, t he Supreme Court, without unnec(ssarily
ascertaining whether the obligation involved here - the production of
the original holographic will - is in the nature of a public or a private
duty, rules that the remedy of mandamus cannot be availed ofby the
respondent because there lies another plain, speedy and adequate
remedy in the ordinary course of law. It should be noted in this case
that the respondent has a photocopy of the will and that h e seeks the
production of the original for purposes of probate.
The Rules of Court, however, does not prevent him from ins-
tituting probate proceedings for t he allowance of the will whether
the same is in his possession or not. Section 1 of Rule 76 relevantly
provides:
Sec. 1. Who may petition for the allowance of will. - Any
executor, devisee, or legatee named in a will, or any other person
interested in the estate, may, at any time after the death of the
testator, petition the court having jurisdiction to have t he will
allowed, whether the same be in his possession or not, or is lost
or destroyed.
An adequate remedy is further provided in Sections 2 to 5 of
Rule 75 for the product ion of the original holographic will. Thus -
Sec. 2. Custodian of will to deliver. - The person who has
custody of a will shall, within twenty (20) days after he knows
of the death of the testator, deliver the will to the court having
jurisdiction, or to the executor named in the will.
Sec. 3. Executor to present will and accept or refuse trust.
- A person named as executor in a will shall, within twenty
(20) days after he knows of the death of the testator, or within
twenty (20) days after h e knows that he is named executor if he
obtained such knowledge after the death of the testator, present
RULE 75 51
Production of Will
Allowance of Will Necessary
such will to the court having jurisdiction, unless the will has
reached the court in any other manner, and shall, within such
period, signify to the court in writing his a cceptance of the trust
or his refusal to accept it.
Sec. 4. Custodian and executor subject to fine for neglect.
- A person who neglects any of the duties required in the two
last preceding sections without excuse satisfactory t o the court
shall be fined not exceeding two thousand pesos.
Sec. 5. Person retaining will may be committed. - A per-
son having custody of a will after the death of the testator who
neglects without r easonable cau se to deliver t he same, when
ordered so to do, to the court having jurisdiction, may be com-
mitted to prison and there kept until he delivers the will.
There being a plain, sp eedy and adequate remedy in the ordi-
11111·y course of law for the production of the subject will, the r em edy
111' mandamus cannot be availed of.
11.01 CASE
PACIOLES, JR. v. CHUATOCO-CHING
G.R. No. 127920, August 9, 2005
IHSUE: May a trial court, acting as an intestate court, hear
tutd pass upon questions of ownership involving properties
l'laimed to be part of the decedent's estate?
HUPREME COURT'S RULING: The general rule is that the juris-
diction of the trial court either as an intestate or a probate court
1•1ilates only to matters having to do with the settlement of the
11Htnte and probate of will of deceased persons but does not extend
l o the determination of questions of ownership that arise during
Iho proceedings. (Sanchez v. Court of Appeals, G.R. No. 108947,
8,•ptember 29, 1997) The patent rationa le for th is rule is that such
,•mn-t exercises special and limited jurisdiction. (Heirs of Oscar R .
N,•yes v. Reyes, G.R. No. 139587, November 22, 2000)
A well-recognized deviation to the rule is th e principle that an
l11Lostate or a probate court may hear and pass upon questions of
11wnership when its purpose is to determine wh ether or not a pro-
pnl'ty should be included in the inventory. In such a situation, the
11djudication is merely incidental and provisional.
52 SPECIAL PRO CEEDINGS RULE 75 53
Production of Will
Allowance of Will Necessary

FORM: PETITION FOR THE PROBATE OF A WILL /\s soon as practicable and when necessary, the executor will cause the
pt·oduction of original of the will before the Honorable Court.
Republic of the Philippines
National Capital Judicial Region Attached herewith and made an integral part of this pleading is a
Regional Trial Court of Manila (aithful copy of the last will and testament of Has Annex ''B."
Branch 5. That the petitioner, as executor named in said will, consents to
net as such.
Petition for the Probate
of the last will and testament 6. The testator left a real property in Manila and the following
oxpenses :
and settlement of the estate
of the late H. Assets
J.O. in his capacity as the named r House and Lot in Manila P2,500,000.00
Executor in the last will and Less:
testament of the late H.
Bad debts 500,000.00 (500,000.00)
Petitioner, H ospital Expense P150,000.00 (150,000.00)
Spec. Pro. Case No. _ _ _ __ Net Estate Pl,850.00
X··································X
1ST CAUSE OF ACTION: PROBATE OF THE WILL
PETITION
7. Petitioner respectfully seeks the probate of the aforesaid will in
COMES NOW, the P etitioner in his capacity as the named executor 11ccordance with the requisites of the laws of the Philippines.
in the last will and testament of the deceased H before this Honorable
Court, most resp ectfully avers the following: 2ND CAUSE OF ACTION: PARTITION OF THE ESTATE IN ACCOR-
DANCE WITH THE INSTRUCTIONS OF THE WILL
1. The testator H (hereinafter referred to as the "Testator"), a
Filipino, of legal age, passed away last June 10, 2009 at the Medical City 8. If the Will is allowed in this probate, the properties of the late H
Hospital, in Pasig City, Philippines. Attached herewith and made an inte- ho distributed in accordance with the provisions and instructions in the Will.
gral part of this pleading is a copy of the testator's Certificate of Death as
Annex "A." PRAYER

2. The testator, at the time of her death, was a r esident of
3. When Ms. H passed away, she was unmarried and had no children
of her own. Both her parents had long passed away prior to her death. She is
survived by the following persons as her next of kin and heirs. Her siblings:
a. R married to L, parents of Jos, and M with postal address at
b. Dr. married to Dra., parents of Mi, Er, Vi, and Be with postal
address at _ _ _ _ _ _ _ __
c. E married to C. However soon after the demise of the testator
E also passed away. H e left his children namely: R, S and T with postal
address at _ _ _ _ __ _ __
4. The testator left a last will and testament executed on February
14, 2008. It is under the care and custody of Attorney V for safekeeping.
WHEREFORE, pr emises considered, it is most resp.ectfully prayed that:
a. A place and time be set for proving t he last will and testa-
ment of the late H.
b. That due notice be provided in accordance with the Rules of
Court.
c. That after proper hearing, said will and testament be
admitted to probate and letters testamentary be issued to herein
petitioner.
d. In the event that the will is allowed, th e estate be distributed
in accordance with the said Will.
Other remedies just and equitable and necessar y in order to achieve
I ho ends of justice under the premises are likewise prayed for.
Respectfully su bmitted.
Quezon City for City of Manila, December 10, 2010.
54 SPECIAL PROCEEDINGS

JUAN DELA CRUZ

Roll No. 40123
PTR No. 8332143 1/14/2015 RULE 76
IBP No. 690130 1/8/2015
MCLE Compliance IV-0008269-02/28/10 ALLOWANCE OR DISALLOWANCE OF WILL
Tel. No. (02) 416-3900 (BAR QUESTIONS: 1999, 2002, 2011, 2012)
Cell Phone No. 0920 1234567
E-Mail Address: jhimfes2@yahoo.com 1.01 WHO MAY PETITION FOR THE ALLOWANCE OF WILL?
No. 222 Wheels Executive Suite
Wheels Bldg., E. Rodriguez Sr. Avenue, Quezon City, 1102/·- Any execu tor, devisee, or legatee named in a will, or any other
pnt·son interested in the estate, may, at any time after the death of
VERIFICATION AND CERTIFICATE OF NON-FORUM SHOPPING Iho testator, petition the court h aving jurisdiction to have the will
11 llowed, whether the same be in his possession or not, or is lost or
I, J.0., Filipino, oflegal age, with residence address at _ _ _ __ dPHtroyed.
after having been sworn to in accordance with law hereby states:
The testator himself may, during his lifetime, petition the court
1. I am the petitioner in the above-entitled case. lit I' the allowance of his will.
2. I caused the preparation of the aforementioned petition.
1.02 WHO IS A "PERSON INTERESTED IN THE ESTATE''?
3. I hereby certify that I have not commenced any other, action
or proceeding involving the same issues as are now raised in the petition, As a rule, in order that a person may be allowed to intervene
before the Supreme Court, Court of Appeals or any other court, tribunal 111 n probate proceeding h e must have an interest in the estate, or in
or agency. To the best of my knowledge, no such action or proceeding is Iho will, or in the property to be affected by it either as executor or
pending before the Supreme Court, Court of Appeals, or any other court, "" n claimant of the estate. An interested party is one who would be
tribunal or agency. Should I learn that a similar action or proceeding has
lt1111ofited by the estate such as an heir or one who has a claim against
been filed or is pending before the Supreme Court, Court of Appeals, or
1llll estate like a creditor. (Sumilang v. Ramagosa, 21 SCRA 1369
any other court, tribunal or agency, I shall personally notify this Honorable
Court of such fact within five (5) days from said notice. / I .'167))
Affiant
1.oa DEFINE PROBATE OF A WILL.
SUBSCRIBED AND SWORN to before me, this __ day of _ _ _, It is an act of proving in court a document purporting to be the
affiant exhibiting to me his LTO Driver's License Identification Card with h111 I, will and testament of a deceased person in order that it may be
no. issued at on _ _ _ _ __
111 ll<'ially recognized, registered and its provisions carried insofar as
NOTARY PUBLIC
Ili1 1y are in accordance with law.
DOC. NO. I ,Oil IS PROBATE OF A WILL SUBJECT TO PRESCRIPTION?
PAGE NO.
BOOK NO. No. The petition for probate of the will is not subject to the
SERIES OF _ __ 11l11l11 te of limitations and does not prescribe, as such petition may
1111 ll lcd "at any time" and is required by public policy. (Guevara v.
t l111•uara, et al., 98 Phil. 249)

55
56 SPECIAL PROCEEDINGS
1.05 WHAT MUST THE PETITION FOR THE ALLOWANCE
OF A WILL SHOW?
Our rule requires merely that the petition for the allowance of
a will must show, so far as known to t he petitioner :
a) the jurisdictional facts;
b) the names, ages and residences of the h eirs, legatees and
devisees of the testator or decedent;
c) the probable value and character of the prgp~rty of the
estate;
d) the name of the person for whom letter s are prayed; and
e) if the will has not been delivered to the court, the name
of the person having custody of it. (In the Matter of the Petition to
Approve the Will of Ruperta Palaganas, G.R. No. 169144, January
26, 2011)
1.06 DO THE RULES REQUIRE PROOF THAT THE FOR-
EIGN WILL HAS BEEN PROBATED IN THE FOREIGN
COUNTRY?
No, the rules do not require proof that the foreign will has
already been allowed and probated in t he country of its execut ion. (In
the matter of the petition to approve the will of Ruperta Palaganas,
G.R. No. 169144, January 26, 2011)
1.07 BAR Q . [2012]
What are the jurisdictional facts that must be alleged in
a petition for probate of a will?
SUGGESTED ANSWER:
The jurisdictional facts in probate proceedings are the death of
the decedent, his residence at the time of his death in the province
of where the probate court is sitting, or if he is an inhabitant of a
foreign country, his leaving his estate in such province. (Cuenca v.
CA, 53 SCRA 360)
1.08 WHAT IS THE NATURE OF PROBATE PROCEEDINGS?
Probate proceedings is in rem. The notice by publication as a
prerequisite to the allowance of a will, is a constructive notice to the
whole world, and when probate is granted the judgmen t is binding
RULE 76 57
Allowance or Disallowance of Will
11pon everybody, even against the State. The prob ate of a will of the
1•oul't h aving jurisdiction thereof is conclusive as to its du e execution
1111d validity. (Cuenca u. CA, 53 SCRA 360)
1.09 HOW MAY A LOST WILL BE PROVED?
The Rule declares that no will shall be proved a s a lost or
drnitroyed will unless the execution and validity of the same be
t1Htublished, and the will is proved to have been in existence at the
Ume of death of the testator, or is shown to have been fraudulently
or accidentally destroyed in the lifetime of the testator withou t his
knowledge, nor unless its provisions are clearly and distinctly proved
hy at least two credible witnesses. When a lost will is proved, the
p1·ovisions thereof must be distinctly stated and certified by the
juclge, under t he seal of the court, and th e certificat e must be filed
11 nd recorded as other wills are filed and recorded.
I .lO WHAT KIND OF PROOF DOES THE EXISTENCE OF
THE WILL ESTABLISH?
The very existence of [the Will] is in itself prima facie proof t hat
l,ho supposed [testatrix] has willed that [her] estate be distributed
111 the ma nner therein provided, and it is incumbent u pon the State
l,hnt, if legally tenable, such desire be given full effect independent
of' the attitude of the parties affected th ereby. (In the matter of the
/ll'lition to approve the will of R uperta Palaganas, G.R. No. 169144,
,lwiuary 26, 2011)
~.01 BAR Q. [1999]
a) What are the requisites in order that a lost or des-
1,l'oyed will may be allowed?
SUGGESTED ANSWER:
In order that a lost or destroyed will may be allowed, the follow-
1111{ must be, in a subsequent proceeding, complied with:
1. Execution and validity of the will must be established;
2. The will must have been in existence at the time of th e
dt •nth of th e testator, or shown to have been frau dulently or acciden-
1,u lly destroyed in the lifetime of the testator without his knowledge;
3. The provisions are clearly and distinctly proved by at least
l,wo credible witnesses.
58
SPECIAL PROCEEDINGS
2.02 BAR Q. [2011]
Which of the following is sufficient to disallow a will on
the ground of mistake?
(A) An error in the description of the land devised in the will.
(B) The inclusion for distribution among the heirs of properties
not belonging to the testator.
(C) The testator intended a donation inter vivas but7""'
unwittingly
executed a will.
(D) An error in the name of the person nominated as executor.
2.03 BAR Q. [2002]
May an order denying the probate of a will still be over-
turned after the period to appeal therefrom has lapsed? Why?
SUGGESTED ANSWER:
Yes, an order denying the probate of a will may be overturned
after the period to appeal therefrom has lapsed. A petition for relief
may be filed on the grounds of fraud, accident, mistake or excusable
negligence within a period of 60 days after the petitioner learns of
the judgment or final order and not more than six months after such
judgment or final order was entered (Rule 38, Secs. 1 and 3; Soriano
v. Asi, 100 Phil. 785 [1957]). An action for annulment may also
be filed on the ground of extrinsic fraud within four years from its
discovery, and if based on lack of jurisdiction, before it is barred by
laches or estoppel. (Rule 47, Secs. 2 and 3)
2.04 WHO ARE ENTITLED TO NOTICE OF TIME AND PLACE
OF PROBATE PROCEEDINGS?
Section 4 of Rule 76 provides that known heirs, legatees, and
devisees of the testator are entitled to notices. It provides:
"Sec. 4. Heirs, devisees, legatees, and executors to be notified
by mail or personally. - The court shall also cause copies of
the notice of the time and place fixed for proving the will to be
addressed to the designated or other known heirs, legatees, and
devisees of the testator resident in the Philippines at their places
of residence, and deposited in the post office with the postage
thereon prepaid at least twenty (20) days before the hearing, if
such places of residence be known. A copy of the notice must irv
like manner be mailed to the person named as executor, if he
RULE76 59
Allowance or Disallowance of Will
be not be petitioner; also, to a ny person named as co-executor
not petitioning, if their p laces of residence be known . Personal
service of copies of the notice at least ten (1 0) days before the day
of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs."
In the case of Alaban v. CA, G.R. No. 156021, September 23,
~005, a perusal of the will institu ted by the t estator shows that res-
pondent was instituted as the sole heir of the decedent . Pet itioners,
HR nephews and nieces of the decedent, are neither compulsory nor
l,ostate heirs who are entitled to be notified of the probate proceed-
ings under the Rules. Respondent h ad no legal obligation to mention
potitioners in the petition for probate, or to personally notify them of
1,he same.
H.01 CASE
ALABAN, et al. v. COURT OF APPEALS
G.R. No. 156021, September 23, 2005
l•'ACTS: Respondent Francisco Provido filed a petition for the probate
111' the Last Will and Testament of the late Soledad Provido Eleven-
11lonado. Respondent alleged that he was the heir of the decedent and
lho executor of her will. The RTC in P.D. Monfort North, Dumangas,
1loilo allowed the probate of the will of th e decedent and directed the
l,omance of letters testamentary to respondent.
Petitioners filed a motion for the reopening of the probate
p1·oceedings. Likewise, they filed an opposition to the allowance of the
w111 of the decedent, as well as th e issuance ofletters testamen tary to
111Hpondent, claiming that they are the intestate heirs of the decedent.
I'nLitioners claimed that the RTC did not acquire jurisdiction over
I ho petition due to non-payment of t he correct docket fee~, defective
p11blication, and lack of notice to the other heirs.
RTC issued an Order denying petitioners' motion for being
1111moritorious holding that petitioners were deemed notified of the
h1111l'ing by publication and that the deficiency in the payment of
iltll'lcot fees is not a ground for the outright dismissal of the petition.
II 111orely required respondent to pay the deficiency.
IHH UE: Whether or not petitioners have become parties to the
111•01,ate proceedings by virtue of a notice by publication.
60 SPECll\L PROCEEDINGS
SUPREME COURT'S RULING: It has been held that a proceeding
for the probate of a will is one in rem, such that with the corresponding
publication of the petition the court's jurisdiction extends to all
persons interested in said will or in the settle ment of the estate of
the decedent.
Publication is notice to the whole world that the proceeding has
for its object to bar indefinitely all who might be mind'ecl to make an
objection of any sort against the right sought to be established. It is the
publication of such notice that brings in the whole world as a party
in the case and vests the court with jurisdiction to hear and decide it.
Thus, even though petitioners were not mentioned in the petition for
probate, they eventually became parties thereto as a consequence of
the publication of the notice of hearing.
Assuming arguendo that petitioners are entitled to be so noti-
fied, the purpor ted infirmity is cured by the publication of the notice.
After all, personal notice upon the heirs is a matter of procedural
convenience and not a jurisdictional requisite.
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE
OF THE PHILIPPINES AND ADMINISTRATION
OF ESTATE THEREUNDER
(BAR QUESTIONS: 2011, 2014)
1.01 A WILL WAS PROBATED I N A FOREIGN COUNTRY.
MUST IT BE RE-PROBATED IN THE PHILI PPINES?
Yes. Section 1 of Rule 77 provides that a will proved and allowed
111 11 foreign country must be re-probated in the Philippines. If the
,lnccclent owns properties in different cou ntries, separate proceedings
11111Ht be had to cover the same.
1.02 WHAT MUST THE PROPONENT PROVE DURING A
REPROBATE PROCEEDING?
At the re-probate proceedings in the Philippines, the proponent
IIIIIHt prove (a) that the testator was domiciled in the foreign country,
Ch) that the will has been admitted to probate in such country, (c)
lh111, the foreign court was, under the laws of said foreign country, a
111 olinte court with jurisdiction over t he proceedings, (d) the law on
prnhnte procedure in said foreign country and proof of compliance
I hnl'owith, and (e) the legal requirements in said foreign country for
11111 vnlid execution of the will. (Fluemer v. Hix, 54 Phil. 610)
111 WHAT ARE THE EFFECTS OF ALLOWANCE OF A WILL
UNDER THIS RULE?
The effects are as follows:
I. The will shall be treated as if originally proved and allowed
in Philippine courts;
~t Letters testamentary or administration with a will annexed
shall extend to all estates of the Philippines;
:1. After payment of just debts and expenses of administration,
the residue of t he estate shall be disposed of as provided
by law in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country.
61
62 SPECIAL PROCEEDINGS
2.02 MAY A WILL EXECUTED BY FOREIGNERS ABROAD
BE PROBATED IN THE PHILIPPINES EVEN IF NOT
YET PROVED AND ALLOWED IN THE COUNTRY OF
EXECUTION?
Yes, our laws do not prohibit the probate of wills executed by
foreigners abroad although the same have not as yet been probated
and allowed in the countries of their execution. A foreign will can be
given legal effects in our jurisdiction. Article 816 of the Civil Code
states that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities prescribed by
the law of the place wher e he resides, or according to the formalities
observed in his country.
Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides
that if the decedent is an inhabitant of a foreign country, the RTC
of the province where he has an estate may take cognizance of the
settlement of such estate. Sections 1 and 2 of Rule 76 further state
that the executor, devisee, or legatee named in the will, or any other
person interested in the estate, may, at any time after the death of
the testator, petition the court having jurisdiction t o have the will
allowed, whether the same be in his possession or not, or is lost or
destroyed.
The rules require merely that the petition for the allowance of a
will must show, so far as known to the petitioner: (a) the jurisdictional
facts; (b) the names, ages, and residences of t he heirs, legatees,
and devises of the testator or decedent; (c) the probable value and
character of the property of the estate; (d) the name of the person for
whom letters are prayed; and (e) if the will has not been delivered to
the court, the name of the person having cust ody to it. Jurisdictional
facts refer to the fact of death of the decedent , his residence at the
time of his death in the province where the probate court is sitting,
or if he is an inhabitant of a foreign country, the estate he left in
such province. The rules do not require proof that t he foreign will has
already been allowed and probated in t he country of its execution.
(In Re: In the Matter of the Petition to Approve the Will of Ruperta
Palaganas v. Palaganas, G.R. No. 169144, January 26, 2011)
2.03 BAR Q. [2014]
Johnny, a naturalized citizen of the United States 0£
America (USA) but formerly a Filipino citizen, executed a
notarial will in accordance with the laws of the State of Cali-
fornia, USA. Johnny, at the time of his death, was survived!
RULE 77 63
Allowance of Will Proved Outside of the Philippines
and Administration of Estate Thereunder
hy his niece Anastacia, an American citizen residing at the
,•ondominium unit of Johnny located at Fort Bonifacio, Taguig
City; a younger brother, Bartolome, who manages Johnny's
IIHh pond in Lingayen, Pangasinan; and a younger sister,
Gh1'istina, who manages Johnny's rental condominium units
In Makati City. Johnny's entire estate which he inherited
l~·om his parents is valued at P200 million. Johnny appointed
Anastacia as executrix of his will.
(A) Can Johnny's notarial will be probated before the
111·oper court in the Philippines?
(B) XX X
SUGGESTED ANSWER:
Yes, Johnny's not arial will can be probated before t he proper
t'llllrt in the Philippines.
It is a settled jurisprudential doctrine that our laws do not
w ohibit the probate of wills executed by foreigners abroad although
1lio same have not yet been probated and allowed in th e countries of
I hoir execution. Article 816 of the Civil Code expressly provides that
I ho will of an alien who is abroad produces effect in the Philippines if
111nde in accordance wit h the formalities prescribed by the law of the
pince where he resides or according to the formalities observed in h is
ttmmtry.
In the case at bar, Johnny's notarial will wa s executed in
1t1·cordance with the laws of California, U.S.A. Hence, his will may be
p1·obated in the Philippines.
~.04 BAR Q. [2011]
Pedrillo, a Fil-Am permanent resident of Los Angeles,
<:ulifornia at the time of his death, bequeathed to Winston a
~um of money to purchase an annuity. Upon Pedrillo's demise,
hIHwill was duly probated in Los Angeles and the specified sum
111 t;he will was in fact used to purchase an annuity with XYZ
111' Hong Kong so that Winston would receive the equivalent of
I JH$1,000 per month for the next 15 years.
Wanting to receive the principal amount of the annuity,
Winston files for the probate of Pedrillo's will in Makati RTC.
AH prayed for, the court names Winston as administrator of
I ho estate.
64 SPECIAL PROCEEDINGS

Winston now files in the Makati RTC a motion to compel

XYZ to account for all sums in its possession forming part of
Pedrillo's estate. Rule on the motion. '-...
\ RULE 78
SUGGESTED ANSWER: LETTERS TESTAMENTARY AND OF ADMINISTRATION,
The motion must be denied. When a will is allowed, the letters WHEN AND TO WHOM ISSUED
of administration granted by the court shall extend to all the estate (BAR QUESTIONS: 1998, 2006, 2011, 2014)
of the testator in the Philippines. (Rule 77, Sec. 4) Hence, RTC of
Makati has no jurisdiction over XYZ of Hongkong. 1.01 WHO MAY ADMINISTER THE ESTATE OF A DECEASED
PERSON?
2.05 CAN OUR COURTS TAKE JUDICIAL NOTICE OF FOREIGN
LAWS? The following may administer the estate: 1) executor; 2) admin -
lHl,i-ator.
No, foreign laws do not prove t hemselves in our jurisdiction and
our courts are not authorized to take judicial notice of t h em. Hence, 1.02 WHO ARE INCOMPETENT TO SERVE AS EXECUTORS
executors or administrators of the decedent's estate are duty-bound OR ADMINISTRATORS?
to introduce in evidence the pertinent law of t he foreign court which
admitted to probate the will of the decedent. (Ancheta v. Dalaygon, Under the Rule, no person is competent to serve as executor or
G.R. No. 139868, June 8, 2006) 11,lministrator who:
(a) Is a minor;
2.06 WHAT IS THE DUTY OF THE PETITIONER IN A REPRO-
BATE PROCEEDINGS? (b) Is not a resident of the Philippines; and

While foreign laws do not prove themselves in our jurisdiction (c) Is in the opinion of th e court unfit to execute the duties of
and our courts are not authorized to take judicial notie of t hem; how- the trust by reason of drunkenness, improvidence, or want
ever , petitioner, as ancillary administrator of Audrey's estate, was of under standing or integrity, or by reason of conviction of
duty-bound to introduce the pertinent law of the State of Maryland. an offense involving moral turpitude.
(Ancheta v. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006)
1.0:J BAR Q. [2014]
Johnny, a naturalized citizen of t h e United States of
America (USA) but formerly a Filipino citizen, executed a
11otnrial will in a ccordance with the laws of the State of Cali-
l'o,·nia, USA. Johnny, at t he time of his death, was survived by
hl,i niece Anastacia, an American citizen residing at t he con-
1l11111inium unit of Johnny located at Fort Bonifacio, Taguig
f '11,y; a younger brother, Bartolome, who manages Johnny's
lh1h pond in Lingayen, Pangasinan; and a younger sister,
f 'lll'iHtina, who manages Johnny 's rental condominium units
111 Makati City. Johnny's entire estate which he inherited
I', um his parents is valued at P200 million. Johnny appointed
l11r, Htac ia as executrix of his will.

65