RULE 72
Q: What are
the cases covered by special proceedings?
A:
1)
Settlement of estate of deceased person
2)
Escheat
3)
Guardianship
4)
Change of name
5)
Habeas corpus
6)
Hospitalization of insane persons
7)
Adoption
8)
Rescission and revocation of adoption
9)
Trustees
10)
Voluntary dissolution of corporations
11)
Judicial approval of voluntary recognition of minor natural children
12)
Constitution of family home
13)
Declaration of absence and death
14)
Cancellation or correction of entries in the civil registry
Q: Distinguish
special proceedings from ordinary proceedings.
A:
A special proceeding is an application to establish the status or right of a
party or a particular fact. An ordinary proceeding concerns the prevention or
redress of a wrong or the enforcement or protection of a right.
A
special proceeding is not adversarial while an ordinary proceeding is. Courts
that hear special proceedings are of limited jurisdiction. In ordinary
proceedings courts are of general jurisdiction.
Q: Is the
question of residence determinative of jurisdiction of the court?
A:
No. It is determinative only of the venue. Hence, the institution of the
proceeding in the province wherein the decedent neither had residence nor
estate does not vitiate the action of the probate court. As venue may be
waived, the submission of all affected parties to said proceeding is a waiver
of objection to this error.
However,
if objection to venue is seasonably raised, the petition should be dismissed
and the proceedings should be instituted in the proper court.
Q: What if
the proceedings were instituted in two courts and the question of venue is
seasonably raised?
A:
The court in which the proceeding was first filed has exclusive jurisdiction to
resolve the issue.
Q: Can the
probate court be divested of jurisdiction?
A:
No. The probate court acquires jurisdiction over the proceeding from the moment
the petition for settlement is filed with said courts. It cannot be divested of
such jurisdiction by the subsequent acts of the interested parties such as by
entering into an extrajudicial partition of the estate or by filing another
petition for the settlement in a proper court of concurrent venue.
Q: Will an
action for recovery of a debt of the conjugal partnership prosper against the
surviving spouse?
A:
No. Upon the death of a spouse, no action can be maintained against the
surviving spouse for the recovery of a debt chargeable against the conjugal
partnership, as the claim should be filed in the settlement proceeding of the
estate of the deceased spouse.
Q: As a
general rule, the probate court cannot determine title to property. In what
instances may it pass upon the question of title to property?
A:
a)
Where the interested parties who are all heirs of the deceased consent thereto
and the interests of third parties are not prejudiced;
b)
In a provisional manner, to determine whether said property should be included
in or excluded from the inventory, without prejudice to the final determination
of title in a separate action;
c)
If the question is one of collation or advancement;
Q: What are
the matters that the probate court has the power to determine?
A:
a)
Who are the heirs of the decedent;
b)
The recognition of a natural child;
c)
The validity of disinheritance effected by the testator;
d)
The status of a woman who claims to be the lawful wife of the decedent;
e)
Validity of a waiver of hereditary rights;
f)
Whether the property in the inventory is conjugal or exclusive property of the
deceased spouse.
Q: As a
general rule, the probate courts cannot issue writs of execution. What are the
exceptions?
A: a)
To satisfy the contributive shares of the devisees, legatees, and heirs in
possession of the decedent’s assets;
b)
To enforce payment of the expenses of partition;
c)
To satisfy the costs when a person is cited for examination in probate
proceedings.
These
exceptions are EXCLUSIVE.
RULE 74
Q: What are
the distinctions between extrajudicial settlement and summary settlement?
A:
a. Extrajudicial settlement does not require court intervention while summary settlement involves judicial
adjudication although in a summary proceeding.
b.
In the first, the value of the estate is immaterial, while the second applies
only where the gross estate does not exceed P10,000.
c.
Extrajudicial settlement is allowed only in intestate succession, while summary
settlement is allowed in both testate and intestate estates.
d.
The first is proper only where there are no outstanding debts of the estate at
the time of settlement, while the second is available even if there are debts,
as the court will make provisions for the payment thereof.
e.
Extrajudicial settlement can be resorted to only at the instance and by
agreement of all the heirs, while summary settlement proceedings may be
instituted by any interested party and even by a creditor of the estate,
without the consent of all the heirs.
RULE 75
Q: Does the
doctrine of estoppel apply in probate proceedings?
A:
No. The presentation and probate of a will are required by public policy and
they involve public interest.
Q: As a
general rule, the probate court can only pass upon the extrinsic validity of
the will. The exception is when the defect is apparent on its face. Give
examples of apparent defect of a will.
A:
1) Complete preterition of the heirs
2)
The will stated that the devisee was the paramour of the testator
RULE 76
Q: What are
the jurisdictional facts required to be alleged in the petition for probate:
A:
a) That a person died leaving a will;
b)
In the case of a resident, that he died in his residence within the territorial
jurisdiction of the court, or, in case of a nonresident, that he left an estate
within such territorial jurisdiction.
c)
That the will has been delivered to the court.
Q: Which of
the following statements is false?
a) A creditor
of the decedent may file a petition for the settlement of the latter’s estate.
b) The executor
may file a petition for the settlement of the testator’s estate.
c) An heir who
has assigned or renounced his hereditary rights may file a petition for the
settlement of the estate.
d) A devisee
may file a petition for the settlement of the testator’s estate.
ANSWER:
C
An
heir who has assigned or renounced his hereditary rights has no legal interest
as would authorize him to initiate such proceedings.
Q: Which of
the following statements is true?
a) The probate
of a will is a proceeding in rem and the publication provided for by Rule 76 is
a jurisdictional requirement.
b) The personal
service of notice upon the heirs is a jurisdictional requirement.
c) There should
be a lapse of 21 days between the first publication and date of hearing.
d) If the
testator asks for the allowance of his own will, notice must be sent to his
compulsory heirs, legatees and devisees.
ANSWER:
A
See
In re Estate of Johnson, 39 Phil 156
cited in Regalado, p. 31.
Q: What must
be established to prove a lost or destroyed notarial will?
A:
1. The due execution and formal validity of the will;
2.
The existence of the will at the time of the death of the testator or its
fraudulent or accidental destruction in the lifetime of the testator without
his knowledge;
3.
The provisions of said will, to be testified to by at least two credible
witnesses.
RULE 77
Q: What must
the proponent prove at the proceedings for the re-probate of the will in the
Philippines?
A:
a) That the testator was domiciled in a foreign country;
b)
That the will has been admitted to probate in such country;
c)
That the foreign court was, under the laws of said foreign country, a probate
court with jurisdiction over the proceedings;
d)
The law on probate procedure in said foreign country and proof of compliance
therewith; and
e)
The legal requirements in said foreign country for the valid execution of the
will.
RULE 78
Q: Which of
the following statements is false?
a. A party
indebted to the decedent’s estate cannot compatibly perform the duties of an
administrator and should not be appointed as such.
b. Clerks of
court and other court personnel of probate courts should not be appointed as
administrators or receivers of estates of deceased persons.
c. The order of
preference in the appointment of an administrator cannot be disregarded.
d. Administration
is granted when no executor is named in the will, or the executor or executors
are incompetent, refuse the trust, or fail to give bond or a person dies
intestate.
Answer:
C
It
may be disregarded for valid cause. (See Sec. 6, Rule 79; Capistrano vs. Nadurata, 46 Phil. 726)
RULE 80
Q: Which of
the following statements is false?
a) A special
adminstrator may be appointed when the regular administrator or executor has a
claim against the estate.
b) The order of
preference in the appointment of regular administrators applies to the
appointment of a special administrator.
c) The order
appointing a special administrator is an interlocutory order and is not
appealable.
d) The special
administrator has also the duty to submit an inventory and to render an
accounting of his administration as required by the terms of his bond.
Answer:
B
See
Roxas vs. Pecson, et al., 82 Phil 407
Q: As a
general rule, a special administrator cannot be sued by a creditor for the
payment of a debt of the deceased. What are the instances when the special
administrator can be made a defendant?
A:
1) When the creditor would suffer the adverse effects of the running of the statute
of limitations against them if the appointment is delayed;
2)
A mortgagee may bring an action for the foreclosure of a mortgage of a property
of the estate against a special administrator.
RULE
82
Q: Should
the administrator be removed if it is subsequently discovered that he was
indebted to the estate?
A:
No. It is not a ground for removal absent any other circumstance indicative of
bad faith or lack of integrity on his part.
Q: What if
the administrator is later held to be without right intervene as heir in the
settlement of the estate?
A:
It is still not a ground for removal since even a stranger can be appointed as
an administrator.
RULE 85
Q: Give
examples of items that have been held NOT to be proper expenses of
administration, and therefore, not chargeable against the estate.
A:
a) The services rendered by an administrator in favor of an heir which services
were not beneficial to the estate;
b)
Premiums for his bond;
c)
Expenses for the repair of property of the estate being occupied and used by
him;
d)
Expenses for the keeping of ordinary records and receipts involved in his
administration work;
e)
Losses incurred in the conduct of business with the use of the funds of the
estate.
Q: Is the
administrator or executor liable for the services rendered by an attorney to
the administrator or executor personally to aid in the execution of the trust?
A:
Yes. However, the administrator or executor can move for reimbursement and
charge such fees as expenses of administration where the same is reasonable and
proved beneficial to the estate.
Where,
however, the attorney’s services were rendered in a litigation involving such
administrator or executor in his capacity as trustee of the estate and for the
protection of the interests of such estate, the attorney’s fee is directly
chargeable to the estate.
Q: How
should the attorney recover his fees?
A:
He may either bring an independent action personally against the executor or
administrator, or file a petition in the administration proceedings for the probate
court to allow the same and to direct the payment of his fees as an expense of
administration.
RULE 86
Q: Are
claims by the government for unpaid taxes covered by the statute of non-claims?
A:
No. They are monetary obligations created by law. Claims for taxes due and
assessed after the death of the decedent need not even be presented in the form
of a claim; the probate court may just direct the executor or administrator to
pay the same. In fact, even after the distribution of the estate, claims for
taxes may be enforced against the distributes in proportion to their shares in
the inheritance.
Q: How about
claims based on quasi-contract?
A:
Yes. It should be deemed included in the concept of claims under sec. 5 which
speaks of “implied” contracts. (Regalado, p. 75)
Rule 87
Q: Can a
legatee bring an action against the executor to compel the payment of the
legacy?
A:
Yes. According to Regalado, the Del
Rosario ruling still appears to be valid up to the present since Sec. 3 of
Rule 87 only prohibits an action against the executor or administrator by an
heir or devisee with respect to lands.
Rule 89
Q: The sale
of real property may be allowed by the court if the petition avers: a) that the
personal estate is not sufficient to pay the debts, expenses of administration
and legacies, or that the sale of such personally may injure the business or
interests of the persons interested in the estate; b) That the testator has not
otherwise made sufficient provisions for the payment of such debts, expenses of
administration and legacies; and c) That such sale or encumbrance would be
beneficial to the parties interested in the state. Name another requisite in
the petition.
A:
There must be averment as to the value of the personal estate. Without such
averment, the court has no jurisdiction to authorize the sale of realty. If the
court should authorize the sale of real property despite such defect in the
petition, the sale of such real property is null and void.
Q: Can the
probate court validly order the sale of a mortgaged property?
A:
No. It has no authority to do so as that would be equivalent to a foreclosure
action being adjudicated in the settlement proceeding.
Rule 90
Q: What must
be paid first before distribution is ordered?
A:
Debts, funeral charges, expenses of administration, allowance to the widow and
estate tax. Regalado believes that
Sec. 1 also include the allowances to the children of the deceased as payment
of such allowances during the pendency of the administration proceedings is
specifically authorized by Sec. 3, Rule 83. Also, the legacies must have been
paid as this is directed by Sec. 15, Rule 88.
He
also notes that an advance or partial distribution may be allowed provided the
foregoing obligations are secured by a bond.
Rule 92
Q: What is
the rule when there is an issue as to who has a better right or title to
properties conveyed in the course of the guardianship proceedings?
A:
The controversy should be threshed out in a separate ordinary action as the
dispute is beyond the jurisdiction of the guardianship court. However, where
the right or title of the ward to the property is clear and indisputable, the
guardianship court may issue an order directing its delivery or return.
Rule 97
Q: Which
court should decide the petition for restoration to capacity?
A:
The court which appointed the guardian is also the court competent to decide
the petition for restoration capacity which is merely a continuation of the
original guardianship proceeding. Also, the petition for the removal of the
guardian must be filed in the same guardianship proceeding. It must be based
only on the grounds in Sec. 2 of this rule which must be satisfactorily proved.
Rule 98
Q: Does this
rule apply to all types of trusts?
A:
No. This rule applies only to express trusts as these are understood in Arts.
1443 to 1446 of the Civil Code, and does not apply to implied trusts which
arise by operation of law.
Q: Distinguish
executors and trustees regarding bond.
A:
An executor will not be exempted from posting a bond even if such exemption is
provided in the will, but a trustee appointed in the will may be exempted from
such bond when so directed in the will.
Q: Distinguish
executors, trustees, and guardians regarding accounts.
A:
Accounts of trustees must be under oath and shall be filed annually. The latter
is also true for guardians, except that they need not be under oath.
Administrators or executors are not required to be under oath, and except for
the initial and final submission of their accounts, they shall be filed only as
such times as may be required by the court.
Rule 101
Q: When
should the Secretary of Health petition for the hospitalization of insane
persons?
A:
It should be filed by the Secretary of Health if the person in custody or
having charge of said insane person refuses to do so and where it is required
for the welfare of the insane person or the public.
Q: What is
the rule on the discharge of the insane?
A:
Where the insane person was judicially committed to the hospital or asylum, the
SOH cannot order his release without the approval of the RTC which ordered the
commitment. Also, the said court cannot order his release without the
recommendation of the SOH.
Rule 102
Q: Habeas
corpus is the remedy in all cases of illegal confinement or detention or where
the rightful custody of a person is withheld from one entitled to such custody.
Give other instances when the writ is available.
A:
It may be availed of where, as a consequence of a judicial proceeding, a) there
has been a deprivation of a constitutional right resulting in the restraint of
a person, b) the court had no jurisdiction to impose the sentence, or c) an
excessive penalty has been imposed, such sentence being void as to such excess.
It
is also available to give retroactive effect to a penal provision favorable to
the accused pursuant to Art. 22 of the RPC.
Q: Does the
writ lie against the order of the Deportation Board?
A:
No. While section 4 refers to restraint of a person under process of a court of
record, such process may also be issued by a governmental agency authorized to
order his confinement, as in the case of the Deportation Board, and the courts
have no authority to release the party thus committed even in habeas corpus
proceedings.
Q: What is a
preliminary citation?
A:
Where the person is detained under governmental authority and the illegality of
his detention is not patent from the petition for the writ, the court may issue
a citation to the government officer having the person in his custody to show
cause why the writ of habeas corpus should not issue.
Q: What is a
peremptory writ?
A:
It is issued when the cause of the detention appears to be patently illegal and
the non-compliance therewith is punishable.
Q: Discuss
the burden of proof after the writ has been returned.
A:
If the detention is by reason of public authority, the return is considered
prima facie evidence of the validity of the restraint and the petitioner has
the burden of proof to show that the restraint is illegal. On the other hand,
if the detention is by reason of private authority, the return is considered
only a plea of facts asserted therein and the person responsible for the
detention has the burden of proof to establish that the detention is legal and
justified.
Q: Can the
person released by virtue of the writ avail of the privilege again?
A:
Yes. When the person so released continues to be denied one or more of his
constitutional freedoms, where there is present a denial of due process, or
where the restraints are not merely involuntary but appear to be unnecessary,
the person
Rule 103
Q: What have
been held to be valid grounds for a change of name?
A:
1. The name is ridiculous, dishonorable or extremely difficult to write or
pronounce;
2.
When the change results as a legal consequence, as in legitimation;
3.
It will avoid confusion;
4.
Having continuously used and been known since childhood by a Filipino name,
unaware of her alien parentage;
5.
A sincere desire to adopt a Filipino name to erase signs of former alienage,
all in good faith and without prejudicing anybody.
Q: Can legal
separation be a ground for change of name?
A:
No. A married woman’s status is not affected by a decree of legal separation as
the vinculum is not severed, hence she must continue to use her married name.
Q: What is
the requirement as to aliases in the title of the petition?
A:
It must be set forth in the title of the petition otherwise, although the
petition has been duly published, such defect would be fatal even if said other
aliases are contained in the body of the petition.
Q: Who is
affected by the grant of the change of name?
A:
A change of name granted by the court affects only the petitioner. A separate
petition for change of name must be filed for his wife and children.
RULE 108
Q: Can
substantial errors in the registry be corrected under this rule?
A:
Yes, provided the parties avail themselves of the appropriate adversary
proceeding; and that the proceeding under Rule 108 ceases to be summary in
nature and takes on the character of an appropriate adversary proceeding when
all the procedural requirements therein are complied with.
*** I made this reviewer for our Spec Pro class under Atty. Chua in Ateneo Law. Please share and spread the word about this blog. Thanks! And good luck!
