Professional Documents
Culture Documents
SPECIAL PROCEEDINGS
NOTE: Declaration of absence and death: There is no such thing as declaration of deathit should be absence leading
to the declaration of death.
These are the only things, which we will be discussing in Special Proceedings (I will state them in the order of importance,
procedurally speaking):
1.
Settlement of Estates- states the meat of special proceedings
2.
Adoption- although this is already studied in civil law; it is important because of the new rule on adoption, not the
laws on adoption (R.A. 3552, the Domestic Adoption Act of 1998 as well as R.A. 8043, the Inter Country Adoption
Law of 1995)not that because that is substantive. I am talking of the new rule on adoption which took effect
sometime in August 2004. I thats why I think its the second most important thing to discuss here.
3.
Rule 103 in relation to Rule 108, Change of Name and Correction of Entry..again, because of the new law. So the
possibility of being asked in the BAR is great. (Read also R.A. 9048)
4.
Guardianship- practically the same rules of procedure as settlement of estate..only that in settlement of estate, the
subject is dead unlike in guardianship, the subject is still alive. Physically alive, but mentally dead or a minor. That
is the difference between the two.
5.
Habeas Corpus- a peculiar kind of special proceeding
6.
Escheat
7.
Trust (not the trust you buy in Mercury, but relationtrust relation)
All the rest, we will not discuss anymore. Voluntary Dissolution of Corporations; Declaration of Absence & Death;
Hospitalization of Insane Persons(but, I still advise you to read), even the Constitution of the Family Home.
If I were an examiner, I would definitely ask in Special Proceedings, Settlement of Estate and next to Settlement of Estate
would be Adoption and next to that would be Habeas Corpus.
Note that even in last years BAR examination there was no question on special proceedings because utmost you get only
one question for BAR purposes, one question in Special Proceedings. Very seldom if you find two questions in Special
Proceedings. If, perhaps, the examiner is teaching special proceedings, then perhaps he will ask you more questions in
the BAR, but ordinarily nonot that Im demeaning its importance.
My other consolation is that you are well-versed in Special Proceedings, that remains to be seen starting this afternoon.
Remember, Special Proceedings is different from all other actions, including Special Civil Actions. If you are asked to
define what a Special Proceeding is, A Special Proceeding is an action other than an ordinary action, a special civil
action, or a criminal action. That is a correct definition by exclusion. To be more specific, Special Proceedings are
actions geared or directed towards the establishment of a right, status, or a particular fact. The ordinary rules
apply here and more so because there are specific provisions that distinguishes it from special civil actions where it has a
special rule. Here, no. It has its own uniqueness. Every Special Proceeding has its own nuances. For example,
because the objective is the establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed.
In special proceedings, there is no defendant, so there is no need for summons. Summons, as we have studied is the way
by which a court acquires jurisdiction over the person of the defendant (Rule 14). The only exception is, of course,
Habeas Corpus Proceedings wherein you name a respondent but the respondent here is different from a
defendant because summons is not necessary.
Q: So, how does a court acquire jurisdiction over the case?
A: There is no need for the court to acquire jurisdiction over the person of the defendant because there is no defendant.
Therefore, the court should acquire jurisdiction of the case, over the subject matter. How? Because it is an action in rem,
ordinarily publication. So that is the uniqueness of Special Proceedings. Publication is the means by which the court
acquires jurisdiction over the subject matter. It is ordinarily not initiated by Complaint, but by Petition.
NOTE: Again, unlike other actions, as a general rule, Special Proceedings do not prescribe. There might be limitations of
such periods in some instances, but ordinarily, they do not prescribe.
Q: What are the Special Proceedings?
A: Name them according to the Rules starting from Rule 73-90 Settlement of Estate; Rule 91 Escheat; Rules 92-97
General Guardians & Guardianship; Rule 98 Trustees; Rules 99-100 are no longer applied because they are deemed
repealed by the new rules on adoption, including Rescission & Custody of Children, these Rules are no longer applied
because of the adoption of the Child & Youth Welfare Code.
Definition of Special Proceeding
Under Rule 1, Section 3, a special proceeding is a remedy by which a person seeks to establish a status, right or
particular fact. In civpro/crimpro,the right is established. The status or particular fact is the source of such right. In special
proceedings, the right is not yet legally established.
Why Special?
Because primarily, the rules mandating Special Proceedings are governed not by the ordinary civil action rules, but has its
own nuances. For example, because the objective is the establishment of a right, status, or a particular fact, summons,
here, is ordinarily not needed. In special proceedings, there is no defendant, so there is no need for summons.
Publication, is the means through which the court can acquire jurisdiction over the case. Summons, as we have studied is
the way by which a court acquires jurisdiction over the person of the defendant (Rule 14). The only exception is, of
course, Habeas Corpus Proceedings wherein you name a respondent but the respondent here is different from a
defendant because summons is not necessary.
The law on prescription will not apply. In that, the probate of the will can still be done anytime because
what the law only requires for period to apply is on the duty to show/present the will within 10 days
from knowledge of death.
SETTLEMENT OF ESTATE OF DECEASED PERSONS
When you speak of Settlement of Estate, immediately what comes to your mind is that someone died (and thats the
beauty in lawmen live forever in lawthey continue in their estateThere are those who want someone dead because
of his estate. there are also those who want somebody alive because he has no estatebut actually, even if you are a
pauper or a millionaire, you always have an estate. So you live forever through your estate. That estate must be settled).
What is an estate?
It is the totality of assets and liabilities of the decedent.
Why is that that the Settlement of Estate is complex?
It is because in this case, the person whose estate is subject to controversy is already NOT around.
2 Modes of Settlement of Estate
1.
Judicial
a.
Summary Settlement of Estate of small value
b.
Judicial partition (Rule 69)
c.
Escheat (Rule 91)
d.
Administrative/Conventional Settlement of Estate (Rule 73-90)
2.
Extrajudicial
a.
Extrajudicial partition
b.
Affidavit of Self-Adjudication
A. Extrajudicial Partition
Situation: When X, the decedent left A, B, C, and D as heirs. The four of them enter into extrajudicial partition of the estate
left by X. They had it published, and proceeded to the Register of Deeds, and finally, the distribution of the estate in
accordance with the partition entered into. This pertains to an estate composing real properties. However, if the estate
composes personal properties, the four of the heirs can right away distribute among themselves the personal properties
left by X.
B. Affidavit of Self-Adjudication
The requirements include the following:
1.
The decedent dies without a will.
2.
There is only one heir left by the decedent.
3.
Whether or not there is a debt left by the decedent so long as if there is debt, the estate can make good of it.
1
This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezon City, parallelled to Espaa or Quezon Blvd.
He was a resident of Cebu but also had a house in Quezon City because he was a member the Senate. When he died in
Quezon City, his residence was in Cebu. When he died, he was already a widower at the time, so he had two families: the
first family with his first wife and the second family with his second wife. His second wife, staying with him in Quezon City,
filed a petition for the settlement of his estate in the RTC (Then CFI) of Q.C. After the 9- day novena for his demise,
the heirs of Senator Cuenco in Cebu City, filed a petition for settlement of his estate in Cebu. This reached the SC. The
issue was in fact wrong: Which court has jurisdiction? It is not a matter of jurisdiction but only of venue. But the
greater error here is not the error of the petitioners but the error of the Court. Why? Because the Q.C. Court on its own
initiative (motu propio) said we are going to give way to the court in Cebu to settle the estate. That cannot be done
because under the Rule, the court which first takes cognizance of a petition for settlement of estate, takes it to
the exclusion of all other courts. (Exclusionary Rule in Special Proceedings) And so, which court has jurisdiction?
Both courts have jurisdiction actually, but because of the Rule, since it was first filed with the Q.C. Court, it was
already taken cognizance of by said court in Q.C. to the exclusion of all other courts, including the Cebu Court .
That is why if ever the court cedes its authority in favor of the Cebu Court, that is wrong. It should have been correct if
anybody interested in the petition files a motion to dismiss on the ground of improper venue but there was none in
Quezon City court NOT in Cebu court.
In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was treated by the examiner saying that a
motion to dismiss was filed with the Cebu Court and the Cebu Court granted it. Wrong. Why? Because the Cebu court
did not acquire jurisdiction because the petition was first filed in Q. C. and there can be no dual jurisdiction here
because the Rule says: the court acquires jurisdiction to the exclusion of all other courts.
1.
2.
3.
If within 2 years after settlement and distribution of an estate, an heir or other person has been
unduly deprived of his lawful participation in the estate- such heir or such other person may compel the
settlement of the estate in the courts for the purpose of satisfying such lawful participation.
If within 2 years, it shall appear that there are debts outstanding against the estate which have not
been paid or that an heir or other person has been unduly deprived of his lawful participation
payable in money- the court may by order for that purpose, after hearing settle the amount of such debts or
lawful participation and order how much and in what manner each distribute shall contribute in the payment
thereof and may issue execution, if circumstances require, against the bond or against the real estate
belonging to the deceased or both.
When can minor or incapacitated person file a claim against estate in this Rule? If on the date of the
expiration of the period of 2 years, the person authorized to file a claim is a minor, mentally incapacitated, or
is in prison or outside of the Philippines, he may present his claim within one (1) year after such disability is
REMOVED.
Judicial Partition
This is provided for under Rule 69 on Partition.
Escheat
This case was followed by the case of Eusebio vs. Eusebio and finally settled in the case of Fule vs. CA, a 1975 case.
Take note of that doctrine because that is very basic in Settlement of Estate under Sec. 1 of the Rule, there does not
speak of jurisdiction but only of venue. In Fule it has been settled that the residence is the actual place of habitation.
So that if a person has two residences, the Fule case settled that residence is the place of actual habitation or it may
not be the place of actual habitation, provided there is animus manendi (intent to remain) and animus revertendi
(intent to return).
1.
In another form of Judicial Settlement, Escheat tells us that if a person dies without a will, without an
heir, and no debts, then the Office of the Solicitor General or his representative (such as the
provincial or city prosecutor) may file a petition, under the directive of the President of the
Philippines, an Escheat Proceeding.
Requirements before filing:
a.
Person dies intestate
for the benefit of public schools, and public charitable institutions and centers in said municipalities or
cities.
What are the orders of the court after a petition is sufficient in form and substance?
1.
Make an order of hearing and such shall NOT be more than 6 months after entry of order.
2.
Direct the publication of a copy of the order at least once a week for 6 consecutive weeks.
What will be the remedy of the Respondent?
When the petition does not state facts which entitle the petitioner to the remedy prayed for, the respondent may file a
MOTION TO DISMISS the petition.
To whom will the property escheated be assigned?
Under Rule 91, Sec.5 is another form of escheat because that was given in the BAR 5 years ago. This
speaks of REVERSION. In other words, the property was acquired by an individual in violation of the
Constitution. Under the Constitution, any person, even foreigners who were former Filipinos, can now
acquire property in the Philippines and that was given more strength because of the Dual Citizenship
Law. Actions for REVERSION are proper in illegal sales of land to disqualified aliens. This will in no
way apply to properties taken from enemy nationals after WORLD WAR II and which were reacquired
by the Republic because such reacquisition was in pursuant to the Philippine Property Act of 1946 and
not by virtue of an ESCHEAT PROCEEDING. The action must be instituted in the province where the
land lies in whole or in part.
Even if title thereto was not transferred to the Government, can it be escheated to local
government? No.
The thirds instance of escheat is that of unclaimed dormant accounts for 10 years under the
Unclaimed Balance Act which shall be filed at the RTC of the place where the dormant deposits are
found.
The right to escheat may be waived expressly or impliedly.
The proceedings in Escheat CANNOT BE CONVERTED INTO SETTLEMENT OF ESTATE. For the
distribution of the estate of the decedent to be instituted, the proper petitions must be presented and
the proceedings should comply with the requirements of the Rule. This is so because, an escheat
proceeding does not have the power to order or proceed with the distribution of the estate of a
decedent in escheat proceedings and adjudicate the properties to the oppositor. (Municipality of
Magalloon, Negros Occidental vs. Ignatius Henry, Oct. 26, 1960)
petition for settlement of estate, you have to attach the will in your petition. But if you are not in custody of the will and
you are interested in the settlement of the estate, you simply file a petition without the will annexed.
This can also be evidenced by the provision under Rule 76 Section 3 that, upon presentation of the will to the court having
jurisdiction, the court will now set the date for hearing thereof with the exception when the testator on its own initiative
probated his will during his lifetime, in which case, no publication is required and notice will only be required to be
made to compulsory heirs. Hence, SURRENDER here is tantamount to a petition.
Situation: H is a resident of Caloocan and he executed a will. He gave it to his kumpadre as a custodian who lived in
Baguio. H died in Caloocan. The kumpadre surrendered to RTC of Baguio City which is the court of proper jurisdiction, the
will executed by H.
May the heir still file a petition? No, because of the EXCLUSIONARY RULE under Rule 73 in that mere surrender of the
will commences the settlement of the estate.
What court has jurisdiction? Again, it depends on the gross value of the estate involved.
What if all the heirs resided in Caloocan City, and they filed petition for probate in RTC of Caloocan, given that the
surrender of the will was done in RTC of Baguio where the custodian resided, can the heir move to dismiss the
case in Baguio? Yes, because RTC of Caloocan has no jurisdiction since the commencement of the settlement was
already done in RTC of Baguio which is understood to be to the exclusion of other courts.
What if the petition now was filed in RTC Baguio City, and you move for its dismissal in yet another RTC branch,
how will you rule on the same? The same thing, you cannot do so because once a branch of RTC takes cognizance of
the case, it is still understood that it is to the exclusion of the other branches of such RTC, if any.
If you are a custodian of a will of the decedent, what is your obligation?
To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)
Rules under this Rule:
1.
There is a corresponding sanctions to custodian and executor and also to persons retaining the will when not
heeding to the mandate/order of the court, which are:
a.
A person who neglects any of the duties of a custodian without excuse satisfactory - fined not
exceeding 2,000.
b.
A person having custody of a will who neglects without reasonable cause to deliver the same
when ordered to do so- committed to prison and there kept until delivery.
1.
2.
3.
4.
5.
*No defect in the petition shall render VOID the allowance of the will or the issuance of letters testamentary
or of administration with the will annexed.
Under this lesson on a probate of a will, there is this general proposition that the probate court (the court probating a will)
either the MTC or the RTC, is a court of limited jurisdiction.
Q: What does it mean when the Rule says that a probate court is a court of limited jurisdiction?
A: A probate court can only rule on the due execution of the will and not as to its intrinsic validity.
This is what you have to understand. Even lawyers do not realize this. Sabi nila probate court yan so you cannot
question, you cannot raise the issue of ownership. The probate court ceases to be a probate court upon allowance or
disallowance of a will but it remains to be a court no longer of limited jurisdiction. That is why I was emphasizing on the
petition as settlement of estate and not as a petition for the probate of a will. Why? Once a will has been probated, thats
the end of it? No. It is only the first stage in the testate proceedings. So when the Rule says that the probate court is a
court of limited jurisdiction, only as far as the probate of a will is concerned. Pagkatapos nun, the court is no longer of
limited jurisdiction because it has to goappointment of the administrator or executor, approval of the accounting,
approval of the inventory, then payment of debts..papaano limited pa yun? No longer.
So as a probate court, the court is limited to the issue of authenticity and due execution, but you do not transfer courts
after the will has been probated, after the will has been allowed or disallowed which is a final resolution which is a final
order or resolution of the court which is appealable. But the appeal here is by record on appeal because it is multiple
appeal. The court now is no longer of limited jurisdiction because it is no longer a probate court.
Q: Ano ba ang end of settlement of estate?
A: Distribution under Rule 90. The first stage of settlement of estate, if it is a testate proceeding is the probate of the will.
That is where the court has limited jurisdiction.
Q: Why is this so? Why does this issue pop up here?
A: This is because during probate of the will, in the very petition, the jurisdictional requirement is that you have to state
what constitutes the estate and the value of the estate. Jurisdictional facts.
Q: If an oppositor enters the picture, the oppositor says mali yan because what constitutes the estate are these properties,
but what is stated in the petition do not belong to the estate, now, can the court decide the ownership of those properties?
A: No. That is where the limited jurisdiction comes into the picture. It cannot because the court has only the duty of
discussing whether the will has been duly executed so this is only as to the extrinsic validity of a will. The intrinsic will
come much, much later, the disposition of the will.
The issue of ownership is outside the jurisdiction of the probate court. But if the probate court cannot continue without
deciding the issue of ownership, the issue of ownership being incidental (intimately related to the issue of probate) to the
probate of the will, must be decided, but the decision here is not final. It is only provisional and it can be contested in
other proceedings and the rule on res judicata will not apply.
In the case of Balaraw which was assigned to you, that was also the issue involved.
In the beginning, there is no defendant. The equivalent of a defendant in a probate proceeding is the oppositor. The
oppositor is not only opposing the probate of the will, but also settlement of the estate, for one reason or another.
The objective of the settlement of the estate is the distribution of the estate among the heirs or those entitled thereto,
although not heirs (those persons named in the will).
Once the court allows or disallows a will, as the case may be, the nature of the court as a probate court ceases.
Therefore, the issue of limited jurisdiction no longer applies. Limited jurisdiction applies only to the authenticity and due
execution of the will.
Q: Once the will is allowed, What does it mean?
A: Rule 76: Allowance of the Will
If Mr. A is accused of a crime of falsification of documents by forging the signature allegedly of a testator and during the
pendency of the criminal action, the will allegedly forged by Mr. A was probated and allowed, the criminal case should be
dismissed because the probate of the court is final and if not appealed becomes conclusive. Wala na yung forgery
because the probate of a will only avows the fact that the signature there is authentic; that there was due execution of the
will. The case against A for falsification should be dismissed. Suppose he has been convicted, he shall be released.
Supposing he is not released, your remedy is to file a petition for habeas corpus because the basis .for restraining his
liberty no longer exists. (So kita nyo ang correlations.)
We are talking here of allowance of the will within the Philippines.
Q: Suppose a will was executed and allowed (probated) outside the Philippines, what happens?
A: Go to the next Rule, Rule 77: Allowance of Will proved Outside of the Philippines and Administration of Estate
thereunder.
Q: An American citizen residing in California died in California, his will was probated in the county state of San Bernardino.
That will has been allowed in the U.S. Should that will be also allowed in the Philippines?
A: No.
Q: What should anyone interested in the allowance of the will in the Philippines do because the deceased had property in
the Philippines?
A: It should be re-probated here and the venue is in the proper court of any province where the decedent had property.
This rule shall be read in conjunction with Sec. 48, Rule 39: Foreign Judgment.
Q: What are you supposed to establish or prove in the re-probate of a will?
A:
The due execution of the will in accordance with the foreign law;
That the testator had his domicile in the foreign country and not in the Philippines;
The fact of death (jurisdictional fact) of the testator in a place within the territorial jurisdiction of the court.
These are mandatory requirements. These must all be established in the Philippine courts. That is how to re-probate a
will which has already been allowed. Thereafter, the court should appoint an administrator. The foreign allowance of a will
leads to the appointment of a domiciliary administrator. Once it is probated in the Philippines, the court appoints an
ancillary administrator.
Q: Who may petition for the allowance of the will or who may oppose thereto?
A: Anybody who has an interest in the estate or in the disposition of the estate of the decedent
Q: What are the qualifications for one to be appointed as administrator of the estate?
A: Any competent person may serve as executor or administrator. He is incompetent if:
1.
a minor
2.
a non-resident
3.
one who in the opinion of the court is unfit to exercise the duties of the trust by reason of :
a.
drunkenness
b.
improvidence
c.
want of understanding and integrity
d.
conviction for an offense involving moral turpitude.
Q: If a man cannot sleep without drinking at least 3 beers before he goes to sleep, can he be appointed as administrator?
A: Yes. He is not a drunkard.
Q: Suppose in the very will, the testator named an executor of his estate, may the court appoint another one other than
the one named in the will?
A: Yes, when such person:
1.
refuses to accept the trust ( ang gusto nya kasi is he would accept the trust if it is candy flavored);
2.
fails to give a bond; and
6
3.
is incompetent.
Q: In the course of the administratorship, when one has already be appointed, can he be removed? On what grounds?
A: Yes. Rule 82: Revocation of Administration, Death, Resignation and Removal of Executor or Administrator.
Sec. 2. Grounds:
1.
neglect to render accounts within 1 year or when the court directs;
2.
neglect to settle the estate according to the Rules;
3.
neglect to perform an order or judgment of the court or a duty expressly provided by these rule;
4.
absconding; or
5.
insanity or incapability or unsuitability to discharge the trust.
Q: If a special administrator is appointed because the regular administrator has a claim against the estate, what happens
to the regular administrator?
A: The regular administrator is not removed by the appointment of the special administrator because the regular
administrator has a claim under Sec. 8 of Rule 86. The special administrator only has a specific function which is only to
work on the claim of the regular administrator.
The executor of an executor cannot be appointed as executor of the principal testator.
Example: Richard is the testator. He appointed Piolo as his executor. Later on Piolo died. In the will of Piolo, he
appointed Sam as his executor. Sam cannot be the executor of the estate of Richard.
Reason: An executor takes charge of the estate. If you are an executor and you died and you have an own estate and
the executor of your own estate will now execute the estate of your testator that appointed you, there will be conflict of
interest (Magkakaroon ng sama sama yung estate. Magkaka halo halo). To avoid possible corruption in the
administration of ones estate.
Q: What are the duties of a special administrator?
A: Sec. 2, Rule 80:
1.
possession and charge of the properties;
2.
preserve the properties;
3.
commence and maintain a suit for the estate;
4.
sell only:
a.
perishable property; and
b.
those ordered by the court
5.
pay debts only as may be ordered by the court.
Q: Can he encumber the property of the estate through lease?
A: It depends. If the lease is not for more than one (1) year, he can because it would fall under acts of administration.
Beyond that, it is already an act of disposition
Q: If the court appoints Mr. X as special administrator, is the order final and appealable?
A: No. It is only interlocutory and unappealable because if you appeal the appointment of a special administrator, there
will be no end to the settlement of the estate.
The special administrator is likewise required to put up a bond.
Q: Suppose the testator in naming an executor of his estate specifically states there that he should serve as administrator
without a bond. Can the court nonetheless require a bond?
A: Yes. The court has a very wide discretion.
Once a regular administrator is appointed, the continuation of the duties and functions of a special administrator will now
reside in the special administrator. But always remember that if it is an act of disposition or conveyance, which cannot be
done by an appointed executor or administrator without permission of the court. You always file a motion for leave of court
to sell a specific property and this is part of your accounting one year after.
Accounting is one of the principal duties of an administrator. His first duty is to prepare an inventory within three (3)
months from appointment and within one (1) year, prepare an accounting of his administratorship and the bond that he put
up is precisely to answer for the misadministration.
RULE 78- LETTERS TESTAMENTARY AND LETTERS OF ADMINISTRATION, WHEN AND TO WHOM ISSUED
RULE 77- ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE
THEREUNDER
What is the rationale for the re-probate?
This is because the Philippine courts do not recognize foreign judgment, and such that probate of the will abroad is one
kind of a foreign judgment.
How will this be enforced in our jurisdiction?
In relation to Rule 39, Section 48, the effect of a judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order will be;
1.
2.
Conclusive upon the title to the thing- in case of a judgment or final order upon specific thing;
Presumptive evidence of a right as between the parties and their successors in interest by subsequent titlein case of judgment against a person.
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact.
What if the probated will abroad is not established as a fact of such probate, what laws will apply?
The doctrine on processual presumption will be applicable, in a sense that foreign law is considered as the same as that
of the domestic law
Which court has jurisdiction for re-probate of will?
It is in the RTC because the subject matter, that is, probate of will (considered as foreign judgment), is incapable of
pecuniary estimation.
Where is the venue?
It is in the place of final, and actual abode of the decedent. In the absence of residence, the place where any of the
property is located to the exclusion of other venues. EXCLUSIONARY RULE STILL APPLIES HERE.
Who may file?
Any person interested in the estate.
In the petition for re-probate, what should be alleged?
1.
That the testator was domiciled in a foreign country.
2.
That the will has been admitted to probate in such country.
3.
That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over
the proceedings.
4.
The law on probate procedure in said foreign country proof of compliance therewith.
5.
The legal requirements in said foreign country for the valid execution of the will.
There should be appointment of ancillary administrator (The administrator appointed to take charge of the properties
in the Philippines, domestic) and domiciliary administrator (The administrator domiciled in foreign country)
Effects of the allowance of a will under this Rule:
1.
The will shall be treated as if originally proved and allowed in Philippine courts.
2.
Letters testamentary or administration with a will annexed shall extend to all estates in the Philippines.
3.
After payment of just debts and expenses of administration, the residue of the 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.
1.
2.
3.
d.
By reason of conviction of an offense involving moral turpitude (Remember that this ground
pertains only to an OFFENSE, not a CRIME unlike in Adoption, in this case, it will pertain to
some offenses relating to immorality, say, urinating in public)
The executor of an executor shall not administer the estate of the first testator (This disqualification is in order to prevent
possible conflict of interest or commingling of estates of the two testators. An illustration will be in that, if A is the first
testator, who appointed B as his executor in the formers will, B died with an estate appointing C as his executor. In this
case, C cannot be allowed to administer the estate of A because he is now managing the estate of B as the testator)
Upon, issuance of those letters (Letters testamentary and Letters of administration), what will courts do?
Under Rule 86 (Claims Against Estate), immediately after granting letters, the court shall issue a notice requiring all
persons having money claims against the decedent to file them in the office of the clerk of court of said court. And it will
now be the duty of every executor or administrator, after the notice to creditors is issued, to cause the same to be
published in 3 WEEKS SUCCESSIVELY in a newspaper of general circulation in the province and to be posted for the
same period in 4 public places in the province and 2 public places in the municipality where the decedent last resided.
Can Letters testamentary be objected to?
Yes, it may be objected and whatever resolution or resolution with that respect is FINAL AND APPEALABLE. Hence, this
made true the existence of MULTIPLE APPEALS in Special Proceedings. In that case, a RECORD ON APPEAL is
required to be filed since each part is complete in itself, say the Settlement, Probate or Appointment of Administrator. But
with respect to SPECIAL ADMINISTRATOR, it would be a different remedy, because the appointment of the same is held
8
INTERLOCUTORY, hence, UNAPPEALABLE and the remedy therefrom is PETITION FOR CERTIORARI alleging grave
abuse of discretion.
RULE 79- OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF
ADMINISTRATION.
What is a Petition for Probate with a Will Annexed?
In this situation, there are two (2) petitions involved:
1.
2.
Petition filed by any interested person in a will stating the grounds why letters testamentary should not issue
to the persons named therein executors, or any of them, and at the same time,
Filing of Petition for Letters of Administration with the will annexed.
RULE 82- REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND
ADMINISTRATORS
When will administration be revoked?
Administration is revoked if a will is discovered.
When may a court remove an executor or administrator or accepts his resignation?
1.
If an executor or administrator neglects to render his account within 1 year and when required by court,
2.
If he neglects to settle estate according to the Rules,
3.
If he neglects to perform an order or judgment of the court or a duty expressly provided by Rules,
4.
When he absconds, or
5.
When becomes insane, or otherwise incapable or unsuitable to discharge the trust.
*When an executor or administrator dies, resigns or is removed, the remaining executor or administrator may
administer the trust alone UNLESS the court grants letters to someone to act with him. If there is no remaining
executor or administrator, administration may be granted to any suitable person.
The acts before revocation, resignation or removal are considered valid.
3.
What will be done if such allowance has to be given but there isnt enough cash by the estate?
This time, a sale can be done, say to pay taxes.
Q: Who are entitled to allowance during proceedings?
1.
legitimate surviving spouse; and
2.
children of the decedent (legitimate & illegitimate children)
Relate to Art. 194, Family Code: Children, even if 18 years of age are still entitled to support from the estate. Read Ruiz
Case
RULE 84- GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS
What are the powers of executors or administrators of the estate?
1.
2.
3.
To have access to and examine and take copies of books and papers relating to partnership in case of a
deceased partner.
To examine and make invoices of the property belonging to partnership in case of deceased partner.
To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in such
repair to the heirs or devisees when directed so to do by the court.
4.
To make improvements on the properties under administration with necessary court approval except for
necessary repairs.
5.
To possess and manage the estate when necessary for:
a.
Payment of debts
b.
Payment of expenses of administration.
What are the restrictions on the Power of an Administrator or Executor?
1.
Cannot acquire by purchase the property under administration.
2.
Cannot borrow money without authority of the court.
3.
Cannot speculate with fund under administration.
4.
Cannot lease the property for more than 1 year.
5.
Cannot continue the business of the deceased unless authorized by court.
6.
Cannot profit by the increase or decrease in the value of the property under administration. (Rule 85, Section
2)
RULE 85- ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS
Case: Lacson vs. Hon. Reyes (RTC of Cavite), and Atty. Ephraim Serquina, February 26, 1990, J. Sarmiento.
Facts: Atty. Ephraim Serquina petitioned the respondent court for the probate of the last will and testament of Carmelita
Farlin, the same having been allowed without opposition. Serquina filed a motion for attorneys fees against petitioners,
herein heirs of Farlin alleging that the heirs agreed to pay for his legal services rendered the sum worth 68,000. It was
granted; hence, Serquina moved for its execution. Petitioners filed a notice of appeal in appealing to such decision. But
trial court dismissed the same arguing that a record on appeal is required and not a notice of appeal. Petitioner, on the
other hand that it should be admitted as an appeal although it falls short of the requirements by the Rules and that the trial
court gravely abused discretion in granting such motion for attorneys fees being contrary to Rule 85, Section 7 of the
Rules of Court. However, Atty Serquina opposed such allegation and opined that in collecting attorneys fees, he was
not acting as executor of Farlins will because there was no letters testamentary that has been issued.
Issues:
(1) Whether a notice of appeal will do in this case.
(2) Whether Atty. Serquina can be granted his motion for attorneys fees.
Held:
(1) Yes. It has been held that in appeals arising from an incident in a special proceeding, a record on appeal is necessary,
otherwise, the appeal faces a dismissal. It has likewise been held, however, that in the interest of justice, an appeal,
brought without a record on appeal, may be reinstated under exceptional circumstances. Thus:
xxx xxx xxx
It is noted, however, that the question presented in this case is one of first impression; that the petitioner
acted in honest, if mistaken, interpretation of the applicable law; that the probate court itself believed that the
record on appeal was unnecessary; and that the private respondent herself apparently thought so, too, for
she did not move to dismiss the appeal and instead impliedly recognized its validity by filing the appellee's
brief.
In view of these circumstances, and in the interest of justice, the Court feels that the petitioner should be
given an opportunity to comply with the above-discussed rules by submitting the required record on appeal
as a condition for the revival of the appeal. The issue raised in his appeal may then be fully discussed and, in
the light of the briefs already filed by the parties, resolved on the merits by the respondent court.
In the instant case, the Court notes the apparent impression by the parties at the outset, that a record on appeal was
unnecessary, as evidenced by: (1) the very holding of the respondent court that "[i]t is now easy to appeal as there is no
more need for a record on appeal . . . [b]y merely filing a notice of appeal, the appellant can already institute his
appeal . . . ;" (2) in its order to amend notice of appeal, it did not require the appellants to submit a record on appeal; and
(3) Atty. Serquina interposed no objection to the appeal on that ground.
(2) No. It is pointed out that an attorney who is concurrently an executor of a will is barred from recovering attorney's fees
from the estate. The rule is therefore clear that an administrator or executor may be allowed fees for the necessary
expenses he has incurred as such, but he may not recover attorney's fees from the estate. His compensation is fixed by
the rule but such a compensation is in the nature of executor's or administrator's commissions, and never as attorney's
fees. In one case, 18 we held that "a greater sum [other than that established by the rule] may be allowed 'in any special
case, where the estate is large, and the settlement has been attended with great difficulty, and has required a high degree
of capacity on the part of the executor or administrator.'" It is also left to the sound discretion of the court. With respect to
attorney's fees, the rule, as we have seen, disallows them. Accordingly, to the extent that the trial court set aside the sum
of P65,000.00 as and for Mr. Serquina's attorney's fees, to operate as a "lien on the subject properties," the trial judge
must be said to have gravely abused its discretion (apart from the fact that it never acquired jurisdiction, in the first place,
to act on said Mr. Serquina's "motion for attorney's fees").
The next question is quite obvious: Who shoulders attorney's fees? We have held that a lawyer of an administrator or
executor may not charge the estate for his fees, but rather, his client. Mutatis mutandis, where the administrator is himself
the counsel for the heirs, it is the latter who must pay therefor.
The records also reveal that Atty. Serquina has already been paid the sum of P6,000.00. It is our considered opinion that
he should be entitled to P15,000.00 for his efforts on a quantum meruit basis. Hence, we hold the heirs liable for
P9,000.00 more.
General rule: The executor or administrator is accountable for the whole estate of the deceased.
Exception: He is not accountable for properties which never came to his possession.
Exception to the exception: When through untruthfulness to the trust or his own fault or for lack of necessary action, the
executor or administrator failed to recover part of the estate which came to his possession.
What will be the compensation for executor or administrator if there is no provision in the Will?
1.
2.
3.
11
On the other hand, if B died in 1999 of December, you have only have up to January of 2000 because the action has
already prescribed, the ordinary action. The statute of non-claims prevails over the statute of limitations. However, the
statute of non- claims will not apply if there is no settlement proceeding.
Can prospective heirs whether under the testate or intestate enter into a partition over the properties belonging to
the estate?
There can be no partition until and unless the will is allowed or probated.
3.
-
Extrajudicial foreclosure
you solely rely on his mortgage, you dont get any deficiency judgement
12
1.
When there is a deficiency of assets in the hands of an executor or administrator for the payment of debts
and expenses of administration, and
2.
The deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or an debt
or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or
3.
Had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as
against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of
them in his lifetime,
The executor or administrator may commence and prosecute to final judgment an action for the recovery of such property,
right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless on
application of the creditors of the deceased, not unless the creditors making the application pay such part of the costs and
expenses, or give security therefor to the executor or administrator, as the court deems equitable.
With respect to the above scenario, when may creditor bring an action?
It is when there is such a deficiency of assets, and the deceased in his lifetime had made or attempted such a
conveyance, as is stated in the last preceding section, and the executor or administrator has not commenced the action
therein provided for, any creditor of the estate may, with the permission of the court, commence and prosecute to final
judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or
attempted conveyance for the benefit of the creditors.
In relation to the above prosecution by creditor, are there any requirements with that respect?
Yes. The following must be complied with by the creditor:
1.
The creditor must file in a court a bond executed to the executor or administrator, in an amount approved by
the judge,
2.
This bond must be conditioned to indemnify the executor or administrator against the costs and expenses
incurred by reason of such action.
3.
Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other
expenses incurred therein as the court deems equitable.
4.
Where the conveyance or attempted conveyance had been made by the deceased in his lifetime in favor of
the executor or administrator, the action which a creditor may bring shall be in the name of all the creditors,
and permission of the court and filing of bond as above prescribed, are not necessary.
What about if there is complaint by the executor or administrator against person entrusted with the estate to be
compelled in rendering account for the estate, what will the action of the court with that respect?
The court may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to
appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds,
account, or other papers belonging to such estate as came to his possession in trust for such executor or administrator,
and of his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may
punish him for contempt as having disobeyed a lawful order of the court.
In actions by and against executors and administrators, where will the executor or administrator get his money to
satisfy your prayer in your action? Is it not from the estate also? Hence, why not make it filed BY THE ESTATE
and not BY THE EXECUTOR OR ADMINISTRATOR?
The reason is this, since Rule 86 is not an action, it presupposes that the action was already done in this Rule. However,
in Rule 87, it is a separate and distinct action, so that if it is a complaint, you always file it against the executor or
administrator. Rule 87 is but an independent action. It is not even necessary here if there is testate or intestate
proceeding. Hence, why by executor OR administrator?
You mean to say that there can be no administrator without an estate proceeding?
No. There can be an administrator even if there is no estate proceeding because you can even undertake extrajudicial
settlement of the estate. In extrajudicial settlement, there can be an agreement by and between the parties as to the
administrator of the estate. The estate does not have a separate and distinct personality. It is only an entity authorized by
law in special cases.
SUE AND BE SUED
13
As a general rule, the estate cannot sue and be sued. It can only be sued in certain instances. It cannot be sued because
under Sec.1, Rule 3 (Who may be parties), it is only an entity authorized by law. That is why you file against the executor
or administrator. Remember that an executor or administrator is a natural person. Iba yun sa Guardian ha? A guardian
can be a juridical person.. only guardianship over the property of the ward. In guardianship over the ward, the guardian
cannot be an artificial being or corporation.
The remedy is to give a bond. If the asset to be distributed is quite important, such as real property, then you give the
asset.
Q: Compare Sec. 7, Rule 86 ( Mortgage debt due from estate) with Sec. 5, Rule 87 (Mortgage due estate may be
foreclosed).
A: The parties under Sec. 7, Rule 86 are the estate of the decedent and the creditor. The creditors may have affirmative
remedies as to their claims against the decedent such as going after his estate. The estate is the debtor, the mortgagor
(mortgage due from the estate). As compared to Sec. 5, Rule 87, the estate is the mortgagee.
Q: Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec 7, Rule 86?
A: NO. He is only allowed one remedy which is foreclosure.
After all these claims have been settled, all debts have been paid, you go now to distribution. This is the last stage. But in
the distribution of the estate, what Rule should be followed? First, before distribution, there shall be payment of debts.
Q: What are these debts? There are only 5 specific kinds of debts.
A:
1.
Debts of the decedent;
2.
Funeral expenses;
3.
Expenses for administration;
4.
Allowance for the widow; and
5.
Taxes.
Q: Under the rules on preference of credit, taxes are given priority. Is there an
exception? What did you Labor Law teacher teach you about that?
A: PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the corporation, even taxes give way to
unpaid salaries and wages. But in all other instances, palaging ang gobyerno ang uunahin. Sabi nga sa mga Reviewers,
pag wala ka na daw maisasagot sa question sa taxation, taxation is the lifeblood of the government.
Pag hindi mo mabayaran avail of Rule 89: Sales, Mortgages, and other Encumbrances of the Property of the Deceased.
The fundamental reason for sales, mortgages, and other encumbrances is to pay off debts.
Q: The estate is worth one million (P1M). After payment of debts, all that had been paid amounted to P500T. How much
is left for distribution?
A: Only P500T.
Q: If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and under the will, A should receive P500T; BP100T; C- P100T; D and E- P50T each and what remains is only P500T, how will you distribute the estate?
A: Distribute the estate by ratio and proportion.
Q: Suppose the asset was P10M gross value and the obligation was only P1M. You have P900T left but the will says to
distribute only P500T; P100T; P100T and P50T to the last two, may sobra ka, (that goes to the pocket of the lawyer?) it
should be distributed in accordance with intestate succession but also pro rata. A: Remember we are talking here of the
remainder, wala nang babayaran. We have also studied the Rules on contingent claims, under Sec. 4, Rule 74 ( Liability
of Distributees and Etate), the two-year lien.
Q: Can the estate be distributed even before payment of debts?
A: General Rule: No.
Exception: Assets may be distributed even prior to payment of debts provided the distributee first gives a bond.
14
3.
4.
If the insolvency pertains to a nonresident who has properties in the Philippines, the same shall be so
disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their
respective credits. (PRO-RATA)
If the insolvency pertains to a resident person in the Philippines but the claims has duly proved outside, the
court shall receive a certified list of such claims, when perfected in such country, and add the same to the list
of claims proved against the deceased person in the Philippines so that a just distribution of the whole estate
may be made equally among all its creditors according to their respective claims.
a.
* But the benefit of this and the preceding sections shall not be extended to the creditors in
another country if the property of such deceased person there found is not equally
apportioned to the creditors residing in the Philippines and the other creditor, according to their
respective claims.
What is the rule with respect to contingent claim becoming ABSOLUTE in 2 years allowed and paid?
1.
If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator,
within two (2) years from the time limited for other creditors to present their claims:
a.
It may be allowed by the court if not disputed by the executor or administrator and,
b.
If disputed, it may be proved and allowed or disallowed by the court as the facts may warrant.
c.
If the contingent claim is allowed, the creditor shall receive payment to the same extent as the
other creditors if the estate retained by the executor or administrator is sufficient.
2.
But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the
assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall
be distributed by the order of the court to the persons entitled to the same;
a.
But the assets so distributed may still be applied to the payment of the claim when established,
and the creditor may maintain an action against the distributees to recover the debt, and such
distributees and their estates shall be liable for the debt in proportion to the estate they have
respectively received from the property of the deceased.
What if after the first distribution of assets, the whole of the debts are not paid and if the whole assets are not yet
distributed or afterwards other assets come to the hands of the executor or administrator, what will the court do?
The court may from time to time make further orders for the distributions of assets.
What is the basis of payment to creditors?
It must be in accordance with the terms of such order by the court for such payment of debts.
Is the time for payment of debts and legacies fixed, or subject to extension, for how long, if any?
1.
If the payment of debts is done personally by the executor or administrator:
a.
On granting letters testamentary or administration, the court shall allow to the executor or
administrator a time for disposing of the estate and paying the debts and legacies of the
deceased, which shall not, in the first instance, exceed one (1) year; but the court may, on
application of the executor or administrator and after hearing on such notice of the time and
place therefor given to all persons interested as it shall direct, extend the time as the
circumstances of the estate require not exceeding six (6) months for a single extension not so
that the whole period allowed to the original executor or administrator shall exceed two (2)
years.
2.
If the executor or administrator dies, and the new administrator of the same estate is appointed:
a.
An application is still required and notice to be given of the time and place for hearing such
application so that the court may extend the time allowed for the payment of the debts or
legacies beyond the time allowed to the original executor or administrator, not exceeding six (6)
months at a time and not exceeding six (6) months beyond the time which the court might have
allowed to such original executor or administrator
15
RULE 89- SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF THE DECEDENT
The fundamental reason for sales, mortgages, and other encumbrances is to pay off debts.
When will sale of personal estate of the deceased be allowed?
Upon the application of the executor or administrator, and on written notice to the heirs and other persons interested, the
court may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of:
1.
paying debts,
2.
expenses of administration, or
3.
legacies, or
4.
preservation of the property.
When may the court authorize sale, mortgage or other encumbrance of REALTY of the estate for payment of debts
and legacies though PERSONALTY is not yet exhausted?
When any of the following appears:
1.
When the personal estate of the deceased is not sufficient to pay the debts, expenses of administration, and
legacies, or
2.
Where the sale of such personal estate may injure the business or other interests of those interested in the
estate, and
3.
Where a testator has not otherwise made sufficient provision for the payment of such debts, expenses, and
legacies,
The court, on the application of the executor or administrator and on written notice of the heirs, devisees, and legatees
residing in the Philippines, may:
a.
Authorize the executor or administrator to sell, mortgage, or otherwise encumber so much as may be
necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts,
expenses, and legacies,
b.
If it clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons
interested; and
c.
If a part cannot be sold, mortgaged, or otherwise encumbered without injury to those interested in the
remainder, the authority may be for the sale, mortgage, or other encumbrance of the whole of such
real estate, or so much thereof as is necessary or beneficial under the circumstances.
What if the person in X, interested in the estate of H, wanted to prevent such sale, mortgage or encumbrance, can
he do so?
Yes. If that person does:
1.
Gives a bond, in a sum to be fixed by the court, conditioned to pay the debts, expenses of administration,
and legacies within such time as the court directs; and
2.
Such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be
prosecuted for the benefit of either.
When may court authorize the sale of estate as beneficial to interested persons?
It is authorized upon application of the executor or administrator and on written notice to the heirs, devisees, and legatees
who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said
estate, although not necessary to pay debts, legacies, or expenses of administration. However, such authority shall not be
granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons
entitled to the estate in the proper proportions.
What if there is an existing debt of such deceased to other countries, what will our court do?
The court here may authorize the executor or administrator to sell the personal estate or to sell, mortgage, or otherwise
encumber the real estate for the payment of debts or legacies in the other country, in same manner as for the payment of
debts or legacies in the Philippines.
Can our court also authorize sale, mortgage or other encumbrance of realty acquired on execution or
foreclosure?
Yes. The court may authorize an executor or administrator to sell mortgage, or otherwise encumber real estate acquired
by him on execution or foreclosure sale, under the same cicumstances and under the same regulations as prescribed in
this rule for the sale, mortgage, or other encumbrance of other real estate.
Regulations for granting authority to sell, mortgage or otherwise encumber estate.
(a) The executor or administrator shall file a written petition setting forth the debts due from the deceased,
the expenses of administration, the legacies, the value of the personal estate, the situation of the estate to be
sold, mortgaged, or otherwise encumbered, and such other facts as show that the sale, mortgage, or other
encumbrance is necessary or beneficial.
(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the
nature of the petition, the reasons for the same, and the time and place of hearing, to be given personally or
by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise,
as it shall deem proper;
(c) If the court requires it, the executor or administrator shall give an additional bond, in such sum as the
court directs, conditioned that such executor or administrator will account for the proceeds of the sale,
mortgage, or other encumbrance;
(d) If the requirements in the preceding subdivisions of this section have been complied with, the court, by
order stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise
encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court
may authorize it to be public or private, as would be most beneficial to all parties concerned. The executor or
administrator shall be furnished with a certified copy of such order;
(e) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be
governed by the provisions concerning notice of execution sale;
(f) There shall be recorded in the registry of deeds of the province in which the real estate thus sold,
mortgage, or otherwise encumbered is situated, a certified copy of the order of the court, together with the
deed of the executor or administrator for such real estate, which shall be as valid as if the deed had been
executed by the deceased in his lifetime.
What if the deceased during his lifetime entered into a contract, binding in law, with respect to a deed of real
property or an interest therein, what will the court do?
On application for that purpose, the court may authorize the executor or administrator to convey such property according
to such contract, or with such modifications as are agreed upon by the parties and approved by the court. If the contract is
to convey real property to the executor or administrator, the clerk of court shall execute the deed. The deed executed by
such executor, administrator, or clerk of court shall be as affectual to convey the property as if executed by the deceased
in his lifetime. However, no such conveyance shall be authorized until notice of the application for that purpose has been
given personally or by mail to all persons interested, and such further notice has been given, by publication or otherwise,
as the court deems proper; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to
prevent a creditor from receiving his full debt or diminish his dividend.
What if the deceased H, had held real property in trust for another person, what will the court do with the same?
The court may after notice given as the same in the above scenario, authorize the executor or administrator to deed such
property to the person, or his executor or administrator, for whose use and benefit it was so held. Also, the court may order
the execution of such trust, whether created by deed or by law.
16
Suppose the asset was P10M gross value and the obligation was only P1M. You have P900T left but the will says
to distribute only P500T; P100T; P100T and P50T to the last two, where will that excess go?
It should be distributed in accordance with intestate succession but also pro rata. Remember we are talking here of the
remainder, hence, no more debts to be paid. We have also studied the Rules on contingent claims, under Sec. 4, Rule 74
(Liability of Distributees and Estate), and the two-year lien.
RULE 91 ESCHEAT
Is another form of Judicial Settlement, Escheat tells us that if a person dies without a will, without an heir, and no debts,
then the Office of the Solicitor General will file, under the directive of the President of the Philippines, will file an Escheat
Proceeding. But if it happens that during the pendency of the proceeding, a will pops up, then the proceeding is
discontinued. If an heir pops up, then the proceeding may be suspended and establish your rightotherwise, after the
hearing, the property will go to the government. This escheat proceeding is founded on the theory that all lands belong to
the Statethe Regalian Doctrine that you studied under LTD (Land Titles & Deeds) all lands belong to the State and
he who claims otherwise has the burden of proof so after the escheat proceedings, the property belonging to the estate
will go to the city or municipality where it is found.
What if there is a controversy as to who are lawful owners of the shares/residues, what will be done?
The controversy shall be heard and decided as in ordinary cases. Also, questions as to advancement made or alleged to
have been made by the deceased to any heir may be heard and determined by the court and the final order of the court
shall be binding on the persons raising the questions and on the heir.
Is the above procedure always absolute as to the payment first of all the expenses/debts of the deceased?
No. Distribution shall be allowed if the distributees, or any of them, give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within such time as the court directs.
When may executor or administrator pay for the expenses of partition?
If at the time of distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be
applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor
or administrator when it appears equitable to the court and not inconsistent with the intention of the testator . Otherwise,
they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment
shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share,
the court may issue an execution in the name of the executor or administrator against the party not paying the sum
assessed.
Where will the recording of these final orders and judgments of the court relating to the real estate or the partition
are done?
Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be
recorded in the registry of deeds of the province where the property is situated.
So if the proceeding is in Manila, but the property escheated is in Calamba, the property escheated located in Calamba
will go to the City of Calamba and not to the City of Manila. The same thing with personal propertywhere it may be
found and the Rule is very specific that the property will be spent for charitable purposes, for educational purposes, so on
and so forth. So that is Rule 91.
Under Rule 91, Sec.5 is another form of escheat because that was given in the BAR 5 years ago (sa dami daming
pwedeng ibigay sa Special Proceedings, yun lang ang binigay). This speaks of REVERSION. In other words, the
property was acquired by an individual in violation of the Constitution. Under the Constitution, any person, even foreigners
who were former Filipinos, can now acquire property in the Philippines and that was given more strength because of the
Dual Citizenship Law.
Q: Which court has jurisdiction over Petitions for Settlement of Estate?
A: Under RA 7691, inferior courts now have jurisdiction over settlement of estate, whether testate or intestate. So it is not
under the provision which speaks of actions involving title to or any interest in property but it is a direct provision of the law
that settlement of estate, whether testate or intestate, may be taken cognizance of by inferior courts, depending on the
gross value (hindi assessed). Remember, there is another provision under BP 129, the basis of which is the assessed
valuedito, gross value of the estate and the location is determinative somehow of jurisdiction because if it is outside
Metro Manila, less that P300T and within Metro Manila, P400Tso suppletory character lang yun.
The old books speak of Courts of First Instance (RTC), exclusivelyhindi na yun.
Under the rules on preference of credit, taxes are given priority. Is there an exception? What did your Labor Law
teacher teach you about that?
Under PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the corporation, even taxes give way to
unpaid salaries and wages. But in all other instances, its always the taxes that will prevail.
The estate is worth one million (P1M). After payment of debts, all that had been paid amounted to P500T. How
much is left for distribution?
Only P500T.
If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and under the will, A should receive P500T;
B- P100T; C- P100T; D and E- P50T each and what remains is only P500T, how will you distribute the estate?
Distribute the estate by ratio and proportion.
17
time and more importantly, they found from the record that Caniza was one of the heirs of the ward. Hence, there is still a
party-in-interest even if there is no settlement of the estate. Ang importante ay pag guardian ka tapos heir ka din, there is
no need for the settlement of the estate.
NOTE: Remember that you find that also in Sec. 16 of Rule 3: Substitution of Parties (without a need of appointing an
administrator or executor of the estate in the substitution of parties.). That is the doctrine laid down in this case.
Q: Who can initiate a petition for guardianship?
A: Anybody who has interest in the person of or property of the ward. If you cannot establish any interest in the person of
or in the property of the ward, you cannot file a petition for guardianship.
Buyena vs. Ledesma: In this case, they were able to establish interest. They were both single and they were living
together.
You have to establish interest. The Rule says, friends, relatives, or any person who has interest.
Q: What is the procedure?
A: File a petition with a court of competent jurisdiction in the proper venue. And the court will issue an order setting the
case for hearing. If there are oppositors, then they can file their opposition. Remember, this is a special proceeding and
jurisdiction is always acquired through publication. After trial, there will be decision either allowing or disallowing
guardianship. In other word, appointing a guardian or not appointing a guardian.
The guardian now enters into the guardianship after he has filed the necessary bond. The duties and responsibilities of a
guardian are similar to that of an executor or administrator .
Q: Can he sell the properties of his ward?
A: Yes. Even without permission from the court if the property involved is personal property. But, if it is real property, just
like, an executor or administrator, he has to get permission from the court. Only with the permission of the court will the
sale of real property be considered a valid sale. It is not only permission of the court which is required, but also notice to
all interested parties. In guardianship, the absence of notice, even with permission of the court, still renders the sale void.
Q: In what instances may guardianship be terminated?
A: Death also terminates guardianship, but the general rule is that if the ground for the appointment of the guardian
ceases, then guardianship ceases as well.. If the minor is already of age (remember, even the minor himself can ask for
guardianship). This is an exception regarding lack of a minors legal personality to sue. If the ground is based on
incompetency and it is established that the ward is already competent, or that he was insane, but now, he is no longer
insane; a petition for termination of guardianship may be filed.
Q: Should the legal guardian file guardianship proceedings over the person and property of their minor children?
A: Yes if the property of the war, which is their own children, is worth more than P50T. If they sell the property of their
ward, even if they are the legal guardians, the sale of the property is void.
Case of Evangelista: The petition for guardianship was granted by the court and Caniza was appointed as the guardian
of Evangelista. As a guardian, remember the rights, the guardian can sue and be sued, can collect debts, can manage
the properties of the ward. So one of his actions here was to ask the Estradas to vacate the premises owned by the ward.
Judgment was rendered in favor of plaintiff, but on appeal, it was reversed and on appeal again from the order of reversal,
it was sustained. That is why it went up to the Supreme Court. But pending the appeal with the CA, the ward died. This
is a case for ejectment. The issue here is that considering that there is no more guardianship because death terminates
guardianship, hence, the case must be dismissed because the party appellant is not the proper party-in-interest. The SC
said No. Even if death terminates guardianship, in this particular case, it is contrary to the principle of equity of justice if
we have to start all over again. The case is already with us, so remand of the case to the lower court would be a waste of
A trust relationship can either be express if there is a trust agreement between parties or implied if it is by operation of law.
Examples of trust by operation of law is when parents die without a will and then some children are still minors, whoever is
the guardian of the minor holds the property for and in behalf of the minors in trust. So that you will note that the guardian
here, being the trustee, may not be a party to a written trust agreement but he cannot dispose the minor's property without
consent of the court for the reason that he is only in trust for the ces qui trust. Even in the absence of a written contract,
there is a trust relationship by operation of law.
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2.
3.
Any alien
Guardian, with respect to the ward. And remember, there is no qualification as to the citizenship of the guardian.
The only qualification is that the guardianship must have ended AND his accountability as a guardian has been
completed. Yun lang ang qualification.
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Q: After the decree of adoption has become final and executory, what is the next?
A: There should be a new birth certificate issued. Remember that one of the rights of a party in litigation is the right to a
speedy and public trial. But this adoption proceeding is exceptional because even the documents there are public records
but are not open to the public, not anybody can get it including the new birth certificate issued to the adopter.
When an alien files a petition before the Inter-Country Adoption Board, the alien will come here in the Philippines and will
bring the adoptee and the social worker back to his country of origin for the trial custody of 6 months will happen there.
NOTE: But take note that under the rule on rescission of adoption, the issued certificate of the civil registrar's office is
cancelled in favor of the old birth certificate, which means that the old birth certificate is not deleted, but remains in the
record. And this is the reason of the confidential nature of the proceedings.
This is purposely done by the law, because there is an objective of discouragement. To discourage the adoption of Filipino
citizens by aliens. In fact that is only allowed if the prospective adoptee cannot be adopted by a Filipino. Filipinos have the
preference of adopting.
Q: What constitutes the allegations?
1.
Jurisdictional facts;
2.
legal capacity of the prospective adopter and the adoptee;
In the case of Republic v. Hernandez (1997), the SC said that the petition for adoption does not carry with it the change
of name of the adoptee. With the present rules on adoption specifically under Section 10, this doctrine does not apply
anymore. This is a good bar question. So you can now have joinder of causes of action in special proceedings, in effect.
Dati wala. So you can now join in your prayer, asking for a change of name and for adoption. Let me emphasize, it is a
change of name and not a change of surname because change of surname is an automatic effect of adoption.
Q: After you have filed a petition for adoption, what happens now?
A: There would be a case study, where it is immediately assigned to a social worker. Under present dispensation in our
jurisdiction, every family courts is now provided with a social worker. Because a petition for adoption is exclusively
cognizable by the Family Courts.
A: Violation of the constitution, whereby a person is deprived or restrained of his liberty or not afforded a right to due
process, or an order from an authority which has no jurisdiction.
Q: What is an example of the second instance?
A: Malimit itong mangyari within the family, where the mother or father fights over for the custody of the child.
Q: If a woman leaves the parental home in order to stay with her paramour, can the parents file a petition for a writ of
habeas corpus?
A: It depends. If the child is a minor, a writ of habeas corpus is available. But when a child comes of age, the writ of
habeas corpus is not available.
Q: Suppose a judge renders a judgment penalizing a person with imprisonment of 6 years 1 month and 1 day, and then
the convict has already stayed for more than that period of time, is the writ available?
A: Yes, the writ is available because that is the immediate remedy. Although you can also file certiorari but it is no longer
immediate here. Because what do you intend to annul there? wala.
Q: What is a preliminary citation as compared to the writ of habeas corpus or the peremptory writ?
A: Preliminary citation is a citation to the government officer having the person in his custody to show cause why the writ
of habeas corpus should not issue (detention not patently illegal).
Preemptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance
wherewith is punishable.
In preliminary citation, it is not mandatory where the court may dispense with the issuance of the preliminary citation and
go directly to the issuance of the writ of habeas corpus.
A person in custody of another, restraining the liberty of another, must give a return upon receipt of the writ of habeas
corpus. That return can either be prima facie evidence of the detention or a plea of the facts stated therein, in the return.
Q: Ano ang ibig sabihin nito? (Section 13)
A: The content of the return as to whether it is a plea only or prima facie evidence of detention, they distinguish as to who
has burden of proof. If the return contains prima facie evidence of the detention, then petitioner has the burden of proof to
show that the detention is illegal. But if it is only a plea of the facts stated in the return, then the one who has the custody
of the person has the burden of proof.
So a writ of habeas corpus is directed to a jail warden. When the jail warden prepares the return, which is brought to the
court, he says that this person is under a commitment order, merong desisyon ang korte that this one should be
imprisoned because he was denied bail although is appeal is still pending. That is prima facie evidence of the cause of his
detention, and when that is submitted to the court, the applicant has the burden to establish that that commitment order is
illegal.
But if the return, it says well i am taking custody of this child because i am the father, that is not a commitment order or
judicial order, that is coming from a private person. Therefore, that is not prima facie evidence but only a plea of the facts
stated therein. Hence, the father will show that he has the right to take custody of the child and not anymore the petitioner.
RULES ON EVIDENCE
TESTIMONIAL EVIDENCE
The weakest of all kinds of evidences precisely because it emanates from man who can always try to controvert matters.
What are the qualifications?
You better memorize the qualifications. It's very simple because almost all problems of the qualification of a witness can
be answered through these basic characteristics of a witness.
A witness is one who can perceive and perceiving and can make known his perception. So anybody.
Can a deaf-mute testify? Can a blind testify?
If he can perceive and perceiving and can make known his perception, he can testify. Even if you don't get a perfect score,
you will not get a zero for that because that is a correct answer.
Can a child of tender age testify?
If he can perceive and perceiving can make known his perception, he can testify.
In one and recent case wherein a child was asked to testify, the SC allowed the child to testify because they find out that
what is the criteria for ability to perceive is not just perceiving but making known your perception to others. This is the case
of People v. Bulimlit (not sure), they spoke of the ability to perceive, then ability of communication. And they added the
other one, the ability to know the difference between what is right from wrong. In other words, some cases use it as the
ability to understand the nature of an oath.
In another case, the SC said that the child was not qualified to testify because he cannot perceive and cannot make
known his perception. The child was 2 1/2 years old.
Can a retardate testify?
She was the only witness in a rape case where she was a victim, the defendant's counsel was able to destroy the
testimony to the point of even getting an answer that she likes the act of rape. But the SC convicted the accused
nonetheless on the sole testimony of the retardate. Rationale: the retardate is qualified because she can perceive and
perceiving can make known his perception.
Disqualification?
Basic exception to the general rule (one can perceive and perceiving can make known his perception) is if the law
disqualifies him. So if there is a law disqualifying a person, even if he can perceive and perceiving can make known his
perception, he is disqualified. You get that from other laws, substantive laws. We have studied in Rule 119 regarding a
state witness. One of the qualifications of a state witness is that he must not have been convicted of a crime involving
moral turpitude. If you are convicted of a crime of moral turpitude, you cannot testify as a state witness because the law
disqualifies you to testify.
If you have been convicted of perjury, defamation or misrepresentation, or forgery, you cannot be a witness to a will under
your wills and successions law. And remember, before you authenticate a will, you must present the three instrumental
witnesses. If one witness is convicted of perjury etc. then he cannot testify as a witness.
Other disqualifications:
1.
Mental incapacity or Immaturity.
When you speak of maturity, it does not go with age. You may be of age but still immature. You may not be of age but
already mature. One who cannot decipher what is good and right. One who does not appreciate the sanctity of an oath.
These are signs of immaturity. In other words, you are irresponsible. Who is irresponsible? One who cannot live up to
situations. Who is responsible? If he has the ability to respond. So you are irresponsible if the incident calls for a correct
response and you did not.
2.
Marital disqualification rule.
You often confuse that with marital privilege rule. A very important guide here is that the marital privilege rule, the
statements in the testimony which are not allowed are those of communications which are confidential. But this is not so in
marital disqualification rule. And in the marital disqualification rule, the time frame is within or during marriage. But this is
not in the marital privilege rule. These are the things. but what are the waivers here? The waiver is upon consent. Another
waiver is one against another. Example is for annulment of marriage, the witness in chief is the party involved.
3.
The Dead Man's Statute
So if A files a case against the estate of B, or the property belonging to B being insane, then A cannot testify on matters
ante litem motam (before the controversy). The rationale behind is that when law closes the lips of someone, the adverse
party's lips must likewise be closed. But you might be given certain problems, remember that the action here is limited to
actions against the estate in case of a deceased and the property of the insane in case the defendant is insane. So if it is
the estate, it must be an action against Rule 87 (action by or against the executor or administrator), which are recovery of
real or personal property, recovery of decedent's interest or lien thereon or recovery for damages arising from an offense
or action. So it will not be a contractual money claim, because it is a claim against the estate. This one is against the
executor or administrator.
Exceptions: If there is a waiver, if one consents to the other. But an implied waiver here is if the defendant
executor or administrator interposes a counterclaim. The dead man's statute does not apply because who will establish
the counterclaim. How will you oppose the counterclaim. And remember that the subject matter are those before the
controversy, ante litem motam.
4.
Privilege Rule
Basic characteristic here in these instances is the confidential nature of the communication between one party and the
other. So you start with husband and wife. It is not stated there but this husband and wife relationship can only be invoked
by those who are legally married. Although it is not stated in the Rules. Because if you give that privilege to those who are
not legally married, you are giving a premium to illegality. Therefore, if you are only a common law wife, this rule will not
apply to you.
5.
Lawyer and Client relationship
It is not the client who is privileged here but rather the lawyer who cannot be compelled to testify on matters which he
receives from the client or regarding matters he gave as advices to the client. How about the client testifying? Of course,
the client can testify, but not the lawyer. But, together with the lawyer and the alter ego of the lawyer which is the secretary
or his stenographer. So that would even be sui generis, that would even include his clerk in the office. Because, practically,
the secretary or his stenographer knows everything. But this has something to do in the course of the practice of the
profession. For example: a client goes to you and communicate matters regarding her amorous affairs and starts
insinuating something, this has nothing to do with the case. And of course if there is consent, this is another waiver.
6.
Doctor and Patient relationship
Look, there is a peculiarity there. The disqualification is only in civil cases and not in criminal cases. Because in many
instances, the doctor is even required to testify in criminal cases. The term doctor expands also to his alter ego, or similar,
sui generis also. But how about the quack doctor? No. It is not within the privilege because that would again be giving
premium to an illegal practice of medicine. And also the matters privileged are those within the communication within the
confidential nature of the communication in relation to the medical practice of the person.
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7.
8.
9.
10.
11.
12.
Dying Declaration
Bugbog na bugbog na yang dying declarations, in relation to the res gestae.. Just look at the qualifications.
In res gestae, the declarant does not have to die. But in dying declaration, kaya nga dying, namatay. Kung buhay pa
yan, hindi dying declaration yan. Remember that these exceptions to the hearsay rule, there is a basic requirement of
unavailability of the witness. Because if the witness is available, let him testify orally. The declarant must be conscious
upon pending death.
Requirements of dying declarations:
a.
That death is imminent and the declarant is conscious of that fact;
b.
That the declaration refers to the cause and the surrounding circumstances of such death;
c.
That the declaration relates to the facts which the victim is competent to testify;
d.
That the declaration is offered in a case wherein the declarant's death is subject of the inquiry (the victim
necessarily must have died);
e.
That the statement is complete in itself.
OPINION RULE
Going back to the general formulation, one who can perceive and perceiving can make known his perception. So what are
you suppose to testify on? What you perceive and not what you think about what you perceive because that is already a
matter of opinion. Opinions are not allowed in testimonies.
Exceptions:
1.
Expert Witness
2.
Ordinary Witness
a.
identity of a person about whom he has adequate knowledge
b.
handwriting with which he has sufficient familiarity
c.
mental sanity of a person with whom he is sufficiently acquainted
An expert witness must testify on his experties. Example is in a case of annulment of marriage, mandatorily, the law says
that an expert witness must testify when the ground is Psychological incapacity.
An ordinary witness may testify on his opinion but limited only to 3 instances.
Doctrine of independently relevant statement
You are not trying to establish the content whether it is true or not but you are only trying to establish the fact that
someone (C) told you that X went with A. As to the existence of the fact and not as to the truth or veracity of the issue.
24
defense of the airline was that no body was recovered. So the mother also filed for presumption of death. The SC, there is
a provision for the presumption of death. Since the death only happened last year then she must wait for 4 years before
she can apply for the presumption of death.
I'm talking of presumption ha. But if you have the body already, then this presumption would not apply.
Letter Double A (aa). That a man and woman deporting themselves as husband and wife had entered into a lawful
contract of marriage.
Letter Double B (bb). That property acquired by a man and a woman who are capacitated to marry each other and who
live exclusively each other as husband and wife without the benefit of marriage or under a void marriage has been
obtained by their joint efforts, work or industry.
Letter Double J (jj). Succession. When two persons perish in the same calamity.
1.
Both are under the age of 15 years - older
2.
Both are over the age of 60 years - younger
3.
One is under 15 and the other is above 60 - former
4.
One is over 15 and the other is under 60, different sex - male
5.
One is over 15 and the other is under 60, same sex - older
6.
One is under 15 or over 60 and the other between those ages - latter
In direct examination, you can have an examination in chief. Your cross-examination is limited to the subject matter of the
direct. The re-direct is limited to the cross. Then the re-cross is limited to the re-direct.
What happens now to the testimony of the witness whose cross-examination was not undertaken for one reason
or the other, should it be deleted from the record or remain?
It all depends upon the reason for the failure to cross-examine. If after the direct examination, the defense counsel said
your honor I have another hearing in another court, so i would not undertake my cross-examination. I move for
continuance. By next week i will undertake my cross-examination. It was granted. 3 days after the witness died. So what
was taken under the stenographic notes was only the direct examination without re-cross. Here comes now the defense
counsel, Your honor i move that the direct testimony be stricken from the record for failure or without giving the chance to
cross-examine. The court should deny it. It should remain in the records because the motion for continuance was on the
part of the defendant. If it was due to the plaintiff's counsel, then the examination may be stricken off the record. Example:
after the direct examination, the defense's counsel undertook to cross-examine. If the continuance was moved by the
plaintiff's counsel.
Section 10. Leading and Misleading Questions
A leading question is not allowed. Rationale: Because you already suggest the answer. So parang ikaw na ang sumasagot
din. They say that ordinarily, questions answerable by yes or no are leading questions. But take note of exceptions.
1.
Preliminary matters - example, mr. witness are you the plaintiff in this case?
2.
On cross examination - Rationale: because katunggali yan. He will never answer questions in your favor.
3.
Of an unwilling or hostile witness and witness who is an adverse party - same reason.
But you have to distinguish an adverse witness from a hostile or unwilling witness. As to adverse witness, you don't have
to qualify him because that can be taken judicial notice of by the court. But if you present an unwilling witness or a hostile
witness, you have to lay down the predicate. You have to establish that he is unwilling or a hostile witness.
4.
Difficulty in getting direct and intelligible answers from a witness - leading question is allowed on a child.
A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that
which he has previously stated. It is not allowed. In all instances, a misleading question is not allowed. Because
you are deceitful, you prevaricate (beat around the bush) actually. You intend to tell a lie.
Example: Mr. Witness you stated that on such a date you were in that particular place. Objection your honor, there was no
testimony to that effect. That is misleading. Another example: Or he testified already. On april 5, 1995, i was watching TV.
Then during cross examination he asked, Mr. Witness you testified that on April 5, 1995 you were watching the basketball
game. Misleading question.
Section 11 - IMPEACHMENT OF ADVERSE PARTY'S WITNESS
How do you impeach?
1.
By contradictory evidence
2.
By evidence that his general reputation for truth, honesty, or integrity is bad
3.
By evidence that he has made at other times statements inconsistent with his present testimony.
What is the very common way of impeachment?
Contradictory evidence. Recall your deposition. The deposition of a witness may be used against him.
Mahirap ang 2nd. Ordinarily, you cannot establish the bad character of the witness unless it is testified to or is the subject
matter or issue, otherwise you cannot do that.
Section 15. Exclusion and Separation of Witnesses
This is an exception to the general right to a public, speedy and impartial trial. This is exception. But if you are a party to
the case, you can never be excluded.
3.
Public records, kept in the Philippines, of private documents required by law to be entered therein.
Birth certificates when submitted to the National Census or the Civil Registrar. Marriage contract. Death Certificate.
NOTE: Do you recall when we studied correction of entries under Rule 108. 15 items. All other writings are private. So pag
private writing lang ang dapat iauthenticate.
I told you the 6 requirements for the admissibility of evidence. Yung isa ay authentication. And exception to that would be
public documents because it need not be authenticated.
How do you authenticate private documents? (Section 20)
1.
By anyone who saw the document executed.
2.
By evidence of the genuineness of the signature or handwriting of the maker.
3.
Any other private document need only be identified as that which it is claimed to be.
Ano ba ang ibig sabihin nito? Yung mga hindi material. You need not authenticate it anymore. If you want to establish, for
example, that on your way home you got a letter from the mailbox which happens to be a love letter.
Section 21. Evidence of Authenticity Not Necessary
1. It is more than 30 years old;
2. It is found in the proper custody as its nature requires; and
3. It is unblemished by any alterations or by any circumstance of suspicion.
Example: birth certificate. Sino pa ba ang magtatago ng birth certificate kung hindi ikaw din lang. It must be unblemished
by any alterations or by any circumstance of suspicion.
Section 29. How Judicial Record impeached
1.
By evidence of want of jurisdiction in the court or judicial officer;
2.
Collusion between the parties; or
3.
Fraud in the party offering the record, in respect to the proceedings.
Please connect this with Section 47 of Rule 39 on Foreign Judgments because the way to impeach it is also by lack of
jurisdiction, collusion or fraud.
All jurisprudence says, as a general rule, that when you don't make an offer the testimony is inadmissible. But latest
jurisprudence says that even if you did not make an offer at the beginning of your testimonial evidence that can be
corrected. That's the latest jurisprudence now. It can be corrected by making the offer at the middle or after. So the SC is
not strict as to the time. But the rule says that you must offer it before the testimonial evidence.
In case of documentary evidence, you make the offer in writing, as a general rule. You can only make it orally if the court
allows it, if there are only few documentary evidences.
You make the objections during the offer. In the case of the testimonial, after the offer. In the case of documentary, you
make objections upon receipt of a copy of the formal offer of evidence.
The objections referred to here is not only regarding objections to the offer of evidence. During the testimony or in the
course of the proceeding, you can also make objections.
How many kinds of objections are there?
Substantial and Formal objection
What is substantial objection?
It goes into the substance of what is being objected to.
What is formal objection?
It only goes into the form, the way it is at.
Objection to the leading question is only a formal objection
Section 40. Tender of excluded evidence
What is proffer of evidence?
It is also known as offer of proof. But the correct term is tender of excluded evidence.
When a witness has been declared as incompetent witness, the adverse counsel may ask for the proffer of evidence. If
the witness were allowed to testify, he would have established the following. So in the case of appeal, the appellate court
will see and determine the grounds why it was objected to and may reverse the trial court.
Proof beyond reasonable doubt - this is necessary in criminal cases, it does not absolute certainty but only moral
certainty. Moral certainty is that which an unprejudiced mind would believe that the thing or that that exist. That the
accused is guilty thereof based on the circumstances or evidence.
3.
Preponderance of evidence - that which has heavier evidence wins. The graphical illustration is the lady justice
with a scale. Pag balanced yun, there is no preponderance. You apply the equipoise doctrine. This doctrine is if the
scale is balanced, status quo. Defendant wins. Accused acquitted.
But preponderance means that one side is weightier than the other side. How do you determine? It is not a matter of
number or nature of testimony, but it is a matter of many circumstances lumped together, credibility of the witness, the
nature of the testimonies. Jurisprudence has given us the basic doctrine, which is that the witness must not only be
credible but his testimony be credible as well.
Example, if you put on the witness stand a priest to testify, he is a very credible witness. But suppose the priest testified
and said that he was on the moon on that date. Then his testimony is incredible. Or you took someone who is an exconvict. He testified in a very credible manner. The ex-convict is not a credible witness but had a credible testimony.
4.
Substantial evidence - clear and convincing evidence. This is necessary only in administrative hearing or
procedure. Labor cases for example. It is similar to probable cause. That which an unprejudiced mind would
consider true based on the facts and circumstances on the evidence presented based on those facts and
circumstances.
5.
Probable cause - is the quantum of evidence also, that is the required in preliminary investigations and preliminary
examination.
6.
Prima Facie Evidence - that evidence which is not so controverted becomes conclusive. Can prima facie evidence
convict? Yes, solely by it, if the evidence was never controverted, it becomes conclusive.
7.
Iota of evidence - is one circumstantial evidence. Lightest form of evidence. It can never convict. Because under
the rule, there must be more than one circumstance. And the conclusion arrived at must have been established.
And that these several circumstances establish only one conclusion.
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