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Spec Pro Midterms Reviewer (Atty.

RULE 72 Q: What are the cases covered by special proceedings? A: 1) Settlement of estate of deceased person 2) Escheat 3) Guardianship 4) Change of name 5) Habeas corpus 6) Hospitalization of insane persons 7) Adoption 8) Rescission and revocation of adoption 9) Trustees 10) Voluntary dissolution of corporations 11) Judicial approval of voluntary recognition of minor natural children 12) Constitution of family home 13) Declaration of absence and death 14) Cancellation or correction of entries in the civil registry Q: Distinguish special proceedings from ordinary proceedings. A: A special proceeding is an application to establish the status or right of a party or a particular fact. An ordinary proceeding concerns the prevention or redress of a wrong or the enforcement or protection of a right. A special proceeding is not adversarial while an ordinary proceeding is. Courts that hear special proceedings are of limited jurisdiction. In ordinary proceedings courts are of general jurisdiction. Q: Is the question of residence determinative of jurisdiction of the court? A: No. It is determinative only of the venue. Hence, the institution of the proceeding in the province wherein the decedent neither had residence nor estate does not vitiate the action of the probate court. As venue may be waived, the submission of all affected parties to said proceeding is a waiver of objection to this error. However, if objection to venue is seasonably raised, the petition should be dismissed and the proceedings should be instituted in the proper court. Q: What if the proceedings were instituted in two courts and the question of venue is seasonably raised? A: The court in which the proceeding was first filed has exclusive jurisdiction to resolve the issue. Q: Can the probate court be divested of jurisdiction? A: No. The probate court acquires jurisdiction over the proceeding from the moment the petition for settlement is filed with said courts. It cannot be divested of such jurisdiction by the subsequent acts of the interested parties such as by entering into an extrajudicial partition of the estate or by filing another petition for the settlement in a proper court of concurrent venue. Q: Will an action for recovery of a debt of the conjugal partnership prosper against the surviving spouse? A: No. Upon the death of a spouse, no action can be maintained against the surviving spouse for the recovery of a debt chargeable against the conjugal partnership, as the claim should be filed in the settlement proceeding of the estate of the deceased spouse.

Q: As a general rule, the probate court cannot determine title to property. In what instances may it pass upon the question of title to property? A: a) Where the interested parties who are all heirs of the deceased consent thereto and the interests of third parties are not prejudiced; b) In a provisional manner, to determine whether said property should be included in or excluded from the inventory, without prejudice to the final determination of title in a separate action; c) If the question is one of collation or advancement; Q: What are the matters that the probate court has the power to determine? A: a) Who are the heirs of the decedent; b) The recognition of a natural child; c) The validity of disinheritance effected by the testator; d) The status of a woman who claims to be the lawful wife of the decedent; e) Validity of a waiver of hereditary rights; f) Whether the property in the inventory is conjugal or exclusive property of the deceased spouse. Q: As a general rule, the probate courts cannot issue writs of execution. What are the exceptions? A: a) To satisfy the contributive shares of the devisees, legatees, and heirs in possession of the decedents assets; b) To enforce payment of the expenses of partition; c) To satisfy the costs when a person is cited for examination in probate proceedings. These exceptions are EXCLUSIVE. RULE 74 Q: What are the distinctions between extrajudicial settlement and summary settlement? A: a. Extrajudicial settlement does not require court intervention while summary settlement involves judicial adjudication although in a summary proceeding. b. In the first, the value of the estate is immaterial, while the second applies only where the gross estate does not exceed P10,000. c. Extrajudicial settlement is allowed only in intestate succession, while summary settlement is allowed in both testate and intestate estates. d. The first is proper only where there are no outstanding debts of the estate at the time of settlement, while the second is available even if there are debts, as the court will make provisions for the payment thereof. e. Extrajudicial settlement can be resorted to only at the instance and by agreement of all the heirs, while summary settlement proceedings may be instituted by any interested party and even by a creditor of the estate, without the consent of all the heirs. RULE 75 Q: Does the doctrine of estoppel apply in probate proceedings? A: No. The presentation and probate of a will are required by public policy and they involve public interest. Q: As a general rule, the probate court can only pass upon the extrinsic validity of the will. The exception is when the defect is apparent on its face. Give examples of apparent defect of a will. A: 1) Complete preterition of the heirs

2) The will stated that the devisee was the paramour of the testator RULE 76 Q: What are the jurisdictional facts required to be alleged in the petition for probate: A: a) That a person died leaving a will; b) In the case of a resident, that he died in his residence within the territorial jurisdiction of the court, or, in case of a nonresident, that he left an estate within such territorial jurisdiction. c) That the will has been delivered to the court. Q: Which of the following statements is false? a) A creditor of the decedent may file a petition for the settlement of the latters estate. b) The executor may file a petition for the settlement of the testators estate. c) An heir who has assigned or renounced his hereditary rights may file a petition for the settlement of the estate. d) A devisee may file a petition for the settlement of the testators estate. ANSWER: C An heir who has assigned or renounced his hereditary rights has no legal interest as would authorize him to initiate such proceedings. Q: Which of the following statements is true? a) The probate of a will is a proceeding in rem and the publication provided for by Rule 76 is a jurisdictional requirement. b) The personal service of notice upon the heirs is a jurisdictional requirement. c) There should be a lapse of 21 days between the first publication and date of hearing. d) If the testator asks for the allowance of his own will, notice must be sent to his compulsory heirs, legatees and devisees. ANSWER: A See In re Estate of Johnson, 39 Phil 156 cited in Regalado, p. 31. Q: What must be established to prove a lost or destroyed notarial will? A: 1. The due execution and formal validity of the will; 2. The existence of the will at the time of the death of the testator or its fraudulent or accidental destruction in the lifetime of the testator without his knowledge; 3. The provisions of said will, to be testified to by at least two credible witnesses. RULE 77 Q: What must the proponent prove at the proceedings for the re-probate of the will in the Philippines? A: a) That the testator was domiciled in a foreign country; b) That the will has been admitted to probate in such country; c) That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings; d) The law on probate procedure in said foreign country and proof of compliance therewith; and e) The legal requirements in said foreign country for the valid execution of the will. RULE 78 Q: Which of the following statements is false?


A party indebted to the decedents estate cannot compatibly perform the duties of an administrator and should not be appointed as such. b. Clerks of court and other court personnel of probate courts should not be appointed as administrators or receivers of estates of deceased persons. c. The order of preference in the appointment of an administrator cannot be disregarded. d. Administration is granted when no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond or a person dies intestate. Answer: C It may be disregarded for valid cause. (See Sec. 6, Rule 79; Capistrano vs. Nadurata, 46 Phil. 726) RULE 80 Q: Which of the following statements is false? a) A special adminstrator may be appointed when the regular administrator or executor has a claim against the estate. b) The order of preference in the appointment of regular administrators applies to the appointment of a special administrator. c) The order appointing a special administrator is an interlocutory order and is not appealable. d) The special administrator has also the duty to submit an inventory and to render an accounting of his administration as required by the terms of his bond. Answer: B See Roxas vs. Pecson, et al., 82 Phil 407 Q: As a general rule, a special administrator cannot be sued by a creditor for the payment of a debt of the deceased. What are the instances when the special administrator can be made a defendant? A: 1) When the creditor would suffer the adverse effects of the running of the statute of limitations against them if the appointment is delayed; 2) A mortgagee may bring an action for the foreclosure of a mortgage of a property of the estate against a special administrator. RULE 82 Q: Should the administrator be removed if it is subsequently discovered that he was indebted to the estate? A: No. It is not a ground for removal absent any other circumstance indicative of bad faith or lack of integrity on his part. Q: What if the administrator is later held to be without right intervene as heir in the settlement of the estate? A: It is still not a ground for removal since even a stranger can be appointed as an administrator. RULE 85 Q: Give examples of items that have been held NOT to be proper expenses of administration, and therefore, not chargeable against the estate. A: a) The services rendered by an administrator in favor of an heir which services were not beneficial to the estate; b) Premiums for his bond;

c) Expenses for the repair of property of the estate being occupied and used by him; d) Expenses for the keeping of ordinary records and receipts involved in his administration work; e) Losses incurred in the conduct of business with the use of the funds of the estate. Q: Is the administrator or executor liable for the services rendered by an attorney to the administrator or executor personally to aid in the execution of the trust? A: Yes. However, the administrator or executor can move for reimbursement and charge such fees as expenses of administration where the same is reasonable and proved beneficial to the estate. Where, however, the attorneys services were rendered in a litigation involving such administrator or executor in his capacity as trustee of the estate and for the protection of the interests of such estate, the attorneys fee is directly chargeable to the estate. Q: How should the attorney recover his fees? A: He may either bring an independent action personally against the executor or administrator, or file a petition in the administration proceedings for the probate court to allow the same and to direct the payment of his fees as an expense of administration. RULE 86 Q: Are claims by the government for unpaid taxes covered by the statute of non-claims? A: No. They are monetary obligations created by law. Claims for taxes due and assessed after the death of the decedent need not even be presented in the form of a claim; the probate court may just direct the executor or administrator to pay the same. In fact, even after the distribution of the estate, claims for taxes may be enforced against the distributes in proportion to their shares in the inheritance. Q: How about claims based on quasi-contract? A: Yes. It should be deemed included in the concept of claims under sec. 5 which speaks of implied contracts. (Regalado, p. 75) Rule 87 Q: Can a legatee bring an action against the executor to compel the payment of the legacy? A: Yes. According to Regalado, the Del Rosario ruling still appears to be valid up to the present since Sec. 3 of Rule 87 only prohibits an action against the executor or administrator by an heir or devisee with respect to lands. Rule 89 Q: The sale of real property may be allowed by the court if the petition avers: a) that the personal estate is not sufficient to pay the debts, expenses of administration and legacies, or that the sale of such personally may injure the business or interests of the persons interested in the estate; b) That the testator has not otherwise made sufficient provisions for the payment of such debts, expenses of administration and legacies; and c) That such sale or encumbrance would be beneficial to the parties interested in the state. Name another requisite in the petition. A: There must be averment as to the value of the personal estate. Without such averment, the court has no jurisdiction to authorize the sale of realty. If the court should authorize the sale of real property despite such defect in the petition, the sale of such real property is null and void. Q: Can the probate court validly order the sale of a mortgaged property? A: No. It has no authority to do so as that would be equivalent to a foreclosure action being adjudicated in the settlement proceeding.

Rule 90 Q: What must be paid first before distribution is ordered? A: Debts, funeral charges, expenses of administration, allowance to the widow and estate tax. Regalado believes that Sec. 1 also include the allowances to the children of the deceased as payment of such allowances during the pendency of the administration proceedings is specifically authorized by Sec. 3, Rule 83. Also, the legacies must have been paid as this is directed by Sec. 15, Rule 88. He also notes that an advance or partial distribution may be allowed provided the foregoing obligations are secured by a bond. Rule 92 Q: What is the rule when there is an issue as to who has a better right or title to properties conveyed in the course of the guardianship proceedings? A: The controversy should be threshed out in a separate ordinary action as the dispute is beyond the jurisdiction of the guardianship court. However, where the right or title of the ward to the property is clear and indisputable, the guardianship court may issue an order directing its delivery or return. Rule 97 Q: Which court should decide the petition for restoration to capacity? A: The court which appointed the guardian is also the court competent to decide the petition for restoration capacity which is merely a continuation of the original guardianship proceeding. Also, the petition for the removal of the guardian must be filed in the same guardianship proceeding. It must be based only on the grounds in Sec. 2 of this rule which must be satisfactorily proved. Rule 98 Q: Does this rule apply to all types of trusts? A: No. This rule applies only to express trusts as these are understood in Arts. 1443 to 1446 of the Civil Code, and does not apply to implied trusts which arise by operation of law. Q: Distinguish executors and trustees regarding bond. A: An executor will not be exempted from posting a bond even if such exemption is provided in the will, but a trustee appointed in the will may be exempted from such bond when so directed in the will. Q: Distinguish executors, trustees, and guardians regarding accounts. A: Accounts of trustees must be under oath and shall be filed annually. The latter is also true for guardians, except that they need not be under oath. Administrators or executors are not required to be under oath, and except for the initial and final submission of their accounts, they shall be filed only as such times as may be required by the court. Rule 101 Q: When should the Secretary of Health petition for the hospitalization of insane persons? A: It should be filed by the Secretary of Health if the person in custody or having charge of said insane person refuses to do so and where it is required for the welfare of the insane person or the public. Q: What is the rule on the discharge of the insane? A: Where the insane person was judicially committed to the hospital or asylum, the SOH cannot order his release without the approval of the RTC which ordered the commitment. Also, the said court cannot order his release without the recommendation of the SOH. Rule 102

Q: Habeas corpus is the remedy in all cases of illegal confinement or detention or where the rightful custody of a person is withheld from one entitled to such custody. Give other instances when the writ is available. A: It may be availed of where, as a consequence of a judicial proceeding, a) there has been a deprivation of a constitutional right resulting in the restraint of a person, b) the court had no jurisdiction to impose the sentence, or c) an excessive penalty has been imposed, such sentence being void as to such excess. It is also available to give retroactive effect to a penal provision favorable to the accused pursuant to Art. 22 of the RPC. Q: Does the writ lie against the order of the Deportation Board? A: No. While section 4 refers to restraint of a person under process of a court of record, such process may also be issued by a governmental agency authorized to order his confinement, as in the case of the Deportation Board, and the courts have no authority to release the party thus committed even in habeas corpus proceedings. Q: What is a preliminary citation? A: Where the person is detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court may issue a citation to the government officer having the person in his custody to show cause why the writ of habeas corpus should not issue. Q: What is a peremptory writ? A: It is issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable. Q: Discuss the burden of proof after the writ has been returned. A: If the detention is by reason of public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal. On the other hand, if the detention is by reason of private authority, the return is considered only a plea of facts asserted therein and the person responsible for the detention has the burden of proof to establish that the detention is legal and justified. Q: Can the person released by virtue of the writ avail of the privilege again? A: Yes. When the person so released continues to be denied one or more of his constitutional freedoms, where there is present a denial of due process, or where the restraints are not merely involuntary but appear to be unnecessary, the person Rule 103 Q: What have been held to be valid grounds for a change of name? A: 1. The name is ridiculous, dishonorable or extremely difficult to write or pronounce; 2. When the change results as a legal consequence, as in legitimation; 3. It will avoid confusion; 4. Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage; 5. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody. Q: Can legal separation be a ground for change of name? A: No. A married womans status is not affected by a decree of legal separation as the vinculum is not severed, hence she must continue to use her married name. Q: What is the requirement as to aliases in the title of the petition?

A: It must be set forth in the title of the petition otherwise, although the petition has been duly published, such defect would be fatal even if said other aliases are contained in the body of the petition. Q: Who is affected by the grant of the change of name? A: A change of name granted by the court affects only the petitioner. A separate petition for change of name must be filed for his wife and children. RULE 108 Q: Can substantial errors in the registry be corrected under this rule? A: Yes, provided the parties avail themselves of the appropriate adversary proceeding; and that the proceeding under Rule 108 ceases to be summary in nature and takes on the character of an appropriate adversary proceeding when all the procedural requirements therein are complied with.