Bb Special Proceedings

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SPECIAL PROCEEDINGS

Nimfa Cuesta Vilches

I. INTRODUCTION A. DEFINITION

A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.1

B. DISTINCTION FROM ORDINARY CIVIL ACTION

It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.2 Hence, a special proceeding is initiated by petition, not by complaint.

C. APPLICABILITY OF RULES ON ORDINARY CIVIL ACTION

Applicability of rules on civil actions. – In the absence of special provisions, the

rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.3

Special provisions under Part II of the Rules of Court govern special proceedings; but in the absence of special provisions, the rules provided for in Part I of the Rules governing ordinary civil actions shall be applicable to special proceedings, as far as practicable.4

1. Special proceedings under the Rules of Court

a) Settlement of estate of a deceased person;5 b) Escheat;6

c) Guardianship and custody of minor children;7 d) Trustees;8

e) Adoption and rescission and revocation of adoption;9

1

RULES OF COURT, Rule 1, Sec. 3.

2

Reyes v. Enriquez, G.R. No. 162956, April 10, 2008; 551 SCRA 86.

3

4

Sheker v. Estate of Alice O. Sheker, G.R. No. 157912, December 13, 2007, 540 SCRA 111.

5

RULES OF COURT, Rules 73-90; RULE ON GUARDIANSHIP OF MINORS, A.M. No. 03-02-05-SC, May 1, 2003; and Rule on Custody of Minors and Habeas Corpus in Relation to Custody of Minors, A.M. No. 03-04-04, May 15, 2003.

6

RULES OF COURT, Rule 91.

7

Id., Rules 92-97.

8

Id., Rule 98. 9

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h) Change of Name;12

i) Voluntary dissolution of corporations;13

j) Judicial approval of voluntary recognition of minor natural children;14 k) Constitution of a family home;15

l) Declaration of absence and death;16

m) Cancellation or correction of entries in the civil registry;17 and n) Appeals in special proceedings18

2. Special proceedings under various laws and Supreme Court Circulars a) Petitions under the Family Courts Act19

1. Rule on Declaration of Absolute Nullity of Void Marriages and

Annulment of Voidable Marriages;20

2. Rule on Legal Separation;21 3. Rule on Provisional Orders;22

4. Rule on Custody of Minor Children and Writ of Habeas Corpus in

Relation to Custody of Minor Children;23 and

5. Summary judicial proceedings under the Family Code24

b) Proceedings for protection orders under the Violence Against Women and

Their Children Act25

1. Rule on Violence Against Women and Their Children26

10

11

Id., Rule 102.

12

Id., Rule 103; Republic Act No. 9255 [2004].

13

Now governed by Rep. Act No. 8799, or the Securities Regulation Code of 2000.

14

15

Rendered repealed by the Family Code which provides for an automatic constitution of the family home.

16

17

Id., Rule 108; Rep. Act No. 9048 [2001]

18

19

Rep. Act No. 8369 [1997].

20 A.M. 02-11-10-SC March 15, 2003. 21 A.M. 20-11-11-SC, March 15, 2003. 22 A.M. 02-11-12-SC, March 15, 2003. 23 A.M. 03-04-04-SC, April 22, 2003. 24

CIVIL CODE, Arts. 238-253.

25

Rep. Act No. 9262 [2004].

26

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c) Proceedings under the Arbitration Law27 and Alternative Dispute Resolution Act28

1. Arbitration; court-annexed mediation and judicial dispute resolution29; and court-annexed family mediation30

3. Special Proceedings under other Supreme Court Circulars

a) Petition for writ of amparo31 and b) Petition for writ of habeas data32

27

Rep. Act No. 876 [1953].

28

Rep. Act No. 9285 [2004].

29

A.M. 01-10-5-SC-PHILJA, October 16, 2001.

30

A.M. 10-4-16-SC, June 22, 2010; Please refer to the Chapter on Alternative Dispute Resolution.

31

A.M. 07-9-12-SC, October 16, 2007.

32

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II. SETTLEMENT OF ESTATE OF DECEASED PERSONS A. DEFINITION

In a petition for settlement of estate, the applicants seek to establish the fact of death of the decedent and to be duly recognized as among the heirs to be able to participate in the settlement and liquidation of the estate.33 Where the deceased left a will, the proceeding is testate and if no will was left, the proceeding is intestate. Settlement of estate proceeding is subject to mediation.34

B. JURISDICTION OF PROBATE COURT BASED ON GROSS VALUE OF ESTATE

First-Level Courts35 Regional Trial Court36 Shari’a District Courts37

Metropolitan Trial Court Not Exceeding P400,000 Municipal Trial Court in

Cities, Municipal Trial Court, and Municipal Trial

Circuit Court

Not Exceeding P300,000

Within Metro Manila Exceeding P400,000 Outside Metro Manila Exceeding P300,000 Exclusive original jurisdiction in matters of settlement of the estate of deceased Muslims regardless of the nature and aggregate value of the property.

1. Limited jurisdiction of the court in settlement of estate. The jurisdiction of

the trial court, either as testate or intestate court, is limited to settlement of estate and probate of a will and appointment or removal of administrator or executor. As a general rule, its power does not include determination of ownership and adjudication of title that are in issue during the proceedings.38 Hence, a separate

action contesting the title and ownership of a property shall be instituted.39

2. Nature of authority of court in probate of will. In settlement of estate

proceedings, the authority of a probate court is limited to ascertaining whether the testator, being of sound mind, freely executed the will in accordance with

33

Montaner v. Shari’a District Court, et.al., G.R. No. 1744975, January 20, 2009, 576 SCRA 746.

34

A.M. 10-4-16-SC, Rule1, June 22, 2010.

35

Rep. Act No. 7691 [1994], amending Batas Pambansa Blg. 129.

36

Id.

37

Presidential Decree No. 1083, Art. 143(b).

38

Ramos v. Court of Appeals, G.R. No. 42108, December 29, 1989, 180 SCRA 635.

39

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formalities prescribed by law.40 However, in one case, the Supreme Court held that although generally, a probate court may not decide a question of title or ownership, yet if the interested parties are all heirs, or the question is one of collation or advancement, or the parties consent to the assumption of jurisdiction by the probate court and the rights of third parties are not impaired, the probate court is competent to decide the question of ownership.41

By way of exception to the abovementioned rule, “when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question of title to property.”42

Moreover, a Shari’a District Court is not deprived of jurisdiction merely because petitioners raised as a defense the claim that the deceased is not a Muslim. According to the Supreme Court, the Shari’a District Court has the authority to determine whether it has jurisdiction, requiring the determination that the deceased is a Muslim. If after hearing, the Shari’a District Court finds that the deceased was not in fact a Muslim, then it should dismiss the case for lack of jurisdiction.43

C. JURISPRUDENCE

1. Probate court cannot act on rights to property arising from contract nor proceed to the probate of will that preterited a compulsory heir. In a relevant

case, the Supreme Court found that the probate court may act on matters pertaining to the estate but not on the rights to property arising from a contract. 44 In addition, during the hearing, the probate court shall not go through the probate of a will that preterited a compulsory heir since preterition invalidates the will.45

2. Probate court cannot act on side agreement of parties as to a right of way. Similarly, any agreement other than the judicially approved compromise

between the parties such as the grant of right of way, is outside the limited jurisdiction of the probate court. Thus, an alleged right arising from a “side agreement” on the right of way can be fully protected by filing an ordinary action for specific performance in a court of general jurisdiction.46

40

Nittscher v. Nittscher, G.R. No.160530, November 20, 2007, 537 SCRA 681.

41

Reyes v. Regional Trial Court of Makati, et.al., G.R. No. 165744, August 11, 2008, 561 SCRA 593.

42

Cortez v. Court of Apeals, G.R. No. 117417, September 21, 2000, 340 SCRA 715.

43

Supra note 33.

44

Supra note 38.

45

Nuguid v. Nuguid, G.R. No. 23445, June 23, 1966, 17 SCRA 449.

46

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3. Exceptions to the limited jurisdiction of the probate court.

a. Probate court can act on questions regarding heirship and status of an illegitimate child who claims to be an heir to the estate. If a special

proceeding for the settlement of estate of a decedent is pending, questions regarding heirship, including prescription in relation to recognition and filiation, should be raised and settled in said proceeding. The court, in its capacity as probate court, has jurisdiction to declare who are the heirs of the decedent.47 Even the status of an illegitimate child who claims to be an heir to a decedent’s estate which cannot be adjudicated in an ordinary civil action, as in a case for the recovery of property, must be ventilated in the special proceeding instituted specifically for the purpose of settling the estate of the deceased.48

b. Probate court can rule on distributive shares and accounting of funds and assets to determine shareholdings. If there is a controversy as to the

distributive shares of the heirs in the estate, the probate court shall proceed to hear and decide the same as in ordinary cases.49 The same is true in

accounting of funds and assets to determine the extent and value of shareholdings undertaken by a probate court which is completely consistent with the limited jurisdiction of said court. Beyond this, the determination of title or ownership of the subject shares maybe conclusively settled by the probate court as a question of collation or advancement.50

D. VENUE

Section 1, Rule 73, Rules of Court provides for the venue for settlement of estate of a deceased person.

Decedent was a resident of the Philippines51

Decedent was a non-resident of the

Philippines52

Deceased husband or wife53

The settlement of the estate of a deceased person shall be in the proper court of the place of residence of the deceased at the time of death, regardless of

If the deceased person was a resident of a foreign country, the petition shall be filed in the proper court of any place where he had estate.

As regards liquidation of the conjugal or community property of a deceased husband or wife, it shall be made in the corresponding estate proceedings, but if

47

Montaner et.al., v. Shari’a District Court, G.R. No. 174974, January 20, 2009, 576 SCRA 746.

48

Puno v. Puno Enterprises, Inc., G.R. No. 177066, September 11, 2009, 599 SCRA 585.

49

Estate of Hilario Ruiz v. Court of Appeals, et.al., G.R. No. 118671, January 29, 1996, 252 SCRA 541.

50

Reyes v. Regional Trial Court of Makati, G.R. No. 165744, August 11, 2008, 561 SCRA 593.

51

52

Id.

53

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citizenship. both spouses are

deceased, then it shall be in the estate proceeding of either.

1. Question as to venue to be decided by court first taking cognizance of petition. The question of venue is to be decided by the court first taking

cognizance of the petition. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of the estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when want of jurisdiction appears on the record.54 This is to preclude different courts from assuming jurisdiction.55 Accordingly, the court first taking cognizance of the settlement of estate of a deceased exercises jurisdiction to the exclusion of other courts in testate or intestate proceedings.56

2. Meaning of residence. The term “residence” refers to “actual residence”, as

distinguished from “legal residence” or “domicile.”57 As thus defined, “residence”, in the context of venue provisions, means nothing more than a person’s actual residence or place of abode, provided the person resides therein with continuity and consistency.58 E. KINDS OF SETTLEMENT Extrajudicial settlement59 Summary settlement of estate of small value60

Judicial Partition61 Judicial settlement through letters testamentary or

letters of administration with or without the

will annexed62

If decedent left no will and no debts, which is presumed if no creditor files a

When the gross value of the estate of a deceased person does not

Action for partition under Rule 69, in relation to Article 493 of the

All other forms of settlement of estate shall be by court proceedings with 54 Id., Rule 73. 55

Cuenco v. Court of Appeals, No. 24742, October 26, 1973, 53 SCRA 360.

56

Intestate Estate of Wolfson, G.R. No. L-28054, June 15, 1972, 45 SCRA 381.

57

Pilipinas Shell Petroleum Corporation v. Dumlao, G.R. No. 44888, February 7, 1992, 206 SCRA 40.

58

Supra note 38.

59

60

Id., Sec. 2.

61

Id., Rule 69, Sec 13.

62

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administration within two (2) years after the death of the decedent.63

It may be in the following forms: 1) public instrument executed by all the heirs and filed with the Registry of Deeds; or, 2) an affidavit of self-adjudication if there is only one heir

executing an

affidavit adjudicating to himself the entire estate, which affidavit is filed with the Register of Deeds.64

exceed P

10,000.00, upon a proper petition, the

court having

jurisdiction may proceed summarily to settle the estate,

without the

appointment of an

executor or

administrator, and without delay. The petition may be filed by an interested person who shall make such value appear to the court. Bond is required if property, other than real, is to be distributed, in an amount fixed by the court, conditioned for the payment of any just claim.65

NCC, as when the heirs cannot agree on the division of the estate, and the conditions for extra-judicial settlement are present. The provisions of the Rules of Court on partition apply to partitions of estates composed of personal property, or both real and personal property, in so far as they may be applicable. If the applicable provision is Section 1, Rule 69 of the Rules of Court, which deals with an action for partition,

there is no requirement for publication.66 either an administrator or an executor managing the estate of the deceased until there is partition and distribution after the payment of debts,

legacies and

devises. (See further discussion below.)

1. Extrajudicial Settlement. Requisites:

a. The decedent left no will;

b. The decedent left no debts, or, if there are any, these debts have been paid by the heirs;

c. The heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose;

d. The agreement is contained in a public instrument;

e. The public instrument is registered with the Register of Deeds;

f. Simultaneously with the registration of the agreement with the Register of Deeds, the parties file with the same Register of Deeds a bond in an

63

Id., Rule 74, Sec. 1.

64 Id. 65 Id., Sec.3. 66 Supra note 38.

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amount equivalent to the value of the personal property involved, conditioned upon the payment of any just claim that may crop up within two (2) years; and

g. The fact of extrajudicial settlement shall be published in a newspaper of general circulation once a week for three consecutive weeks67.

2. Petition for administration of estate must be based on good reason.

While extrajudicial settlement by agreement between the heirs may be resorted to,68 recourse to an administration proceeding, even if the estate has no debt is allowed but only if the heirs have good reasons for not resorting to an action for partition. What is “good reason” depends on the circumstances of the case.69

3. Not good reasons to file for administration of estate. The following are not

good reasons to file for administration of estate: to avoid multiplicity of suits as when a person seeking to be appointed as administrator is also asking for the annulment of conveyance of a certain property; an existing dispute among the heirs;70 and the appointment of the husband, a usufructuary forced heir of his deceased wife, as judicial administrator for him to have legal capacity to appear in the intestate proceedings of his wife's deceased mother as he may just adduce proof of his being a forced heir in the intestate proceedings of the latter,71 are not good reasons to justify judicial administration.

4. Extrajudicial settlement is in the nature of a contract. An extrajudicial

settlement of estate partakes of the nature of a contract, hence, must comply with the requisites prescribed under Article 1318 of the Civil Code, namely: 1) consent of the contracting parties; 2) object certain, which is the subject matter of the contract; and, 3) cause of the obligation which is established.72 However, an extrajudicial settlement of estate that is not notarized is considered a private document and, as such, can only bind the parties thereto.73

5. Time bar for parties who participated to object to the extrajudicial proceeding. Section 4 of Rule 74 bars heirs and distributees, represented by

themselves or through guardians, from interposing objection to an extrajudicial partition after the expiration of two (2) years from said partition. But, the

67

68

Id.

69

Pereira v. Court of Appeals, G.R. No. 81147, June 20, 1989, 174 SCRA 154.

70

Supra note 38.

71

Utulo v. Pasion Vda. De Garcia, 66 Phil. 303.

72

Balalad v. Rublico, G.R. No. 160743, August 4, 2009, 595 SCRA 125.

73

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prohibition applies only to parties who have taken part in the extrajudicial settlement, not to third persons who had no participation in the proceedings.74

6. Period of action for reconveyance based on implied or constructive trust. The period to file an action for reconveyance, based on implied or

constructive trust in relation to an heir who did not participate in or who had no knowledge of the extrajudicial partition, prescribes in ten (10) years75 from the alleged fraudulent registration or issuance of certificate of title over the property,76 except if there was bad faith in securing the certificate of title, in which case the reckoning period is from actual discovery. It is important to note that the Torrens title is not a shield for fraud.77

F. PROBATE OR AUTHENTICATION OF A WILL

1. Will defined. A will is an act whereby a person is permitted, with all the

formalities prescribed by law, to control to a certain degree the disposition of the estate and to take effect upon his death.78

2. Formal Requisites in Execution and Attestation of Wills. Under the new

Civil Code, the formal legal requisites for the due execution and attestation of wills are:

a) The will must be in writing and executed in a language or dialect known to the testator;79

b) Except in the case of a holographic will, every will must be subscribed at the end thereof by the testator or by the testator’s name written by some other person in his presence, and under his direction;80

c) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another;81

d) The testator or the person requested by him to write his name and the attesting witnesses shall also sign, as aforesaid, on each and every page of the will, except the last, on the left hand margin thereof;82

74

Supra note 38.

75

Amerol vs. Bagumbaran, G.R. No. 33261, September 30, 1987, 154 SCRA 396; Marquez vs. Court of

Appeals, G.R. No. 125715, December 29, 1998, 300 SCRA 653. 76

Government Service Insurance System (GSIS) v. Santiago, G.R. No. 155206, October 28, 2003; 414 SCRA 563.

77

Samonte vs. Court of Appeals, G.R. No. 104223, July 12, 2001, 316 SCRA 173.

78

NEW CIVIL CODE, Art. 783.

79 Id., Art. 804. 80 Id., Art. 805 81 Id. 82

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e) All the pages of the will shall be numbered correlatively in letters placed on the upper part of each page;83

f) The attestation clause shall state the number of pages used and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the attesting witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them;84 and

g) The will must be acknowledged before a notary public by the testator

and the witnesses.85

h) In the case of a holographic will, it must be entirely written, dated, and signed by the hand of the testator himself. It need not be witnessed.86 Petition for probate of will may be initiated by:

a) Testator during his lifetime (ante mortem probate);87 b) After the death of testator;88

1. Any executor, devisee or legatee named in the will. 2. Any person interested in the estate.

c) When a party is directed by the court pursuant to the Rules of Court.89

3. Time to submit will to the court

a) Within twenty (20) days from knowledge of the death of the testator, the custodian of a will shall deliver the will to the court or to the executor named in the will.90

b) The executor, on the other hand, has twenty (20) days from knowledge of the death of the testator or knowledge of the fact that he is named executor to submit the will to the court, unless the will has reached the court already.91

4. Time for executor to signify acceptance or refusal of trust. Within the

same period, an executor shall signify to the court in writing whether he accepts or refuses the trust.

83

NEW CIVIL CODE, Art. 805.

84 Id., Art. 805. 85 Id., Art. 806. 86 Id., Art. 810. 87 Id., Art. 838. 88 Id., 89

90

Id., Rule 75, Sec. 2.

91

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5. Sanctions for Failure. A person who neglects any of the duties required

without excuse satisfactory to the court shall be fined and those having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will.92

a) A person who neglects to submit the will without excuse satisfactory proven to the court, shall be fined in an amount not exceeding PhP2,000.00.

b) The custodian, who refuses to comply with the order of the court to deliver the will, when ordered to do so, may be committed to prison until he delivers the will.93

6. Contents of petition. A petition for the allowance of will shall allege the

following:

a) jurisdictional facts;

1. that a person died leaving a will;

2. the testator at the time of death is a resident within the territorial jurisdiction of the court; and

3. the testator is non-resident at the time of death but left property within the territorial jurisdiction of the court.

b) names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;

c) probable value and character of the property of the estate; d) name of the person for whom letters are prayed; and,

e) if the will has not been delivered to the court, the name of the person having custody of it.

No defect in the petition, however, shall render void the allowance of a will, or the issuance of letters testamentary or of administration with the will annexed.94

7. Time to prove or contest the will. The court shall fix a time and place for

proving the will where all concerned may appear to contest the allowance thereof.95

8. Publication of notices; exception. The required notice shall be published

three (3) weeks successively, previous to the time appointed, in a newspaper of

92

Id., Secs. 4 and 5; Uy v. Lee, G.R. No. 176831, January 15, 2010.

93

Id., Rule 75, Sec. 2 to 5. 94

95

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general circulation in the province.96 Probate of a will is a proceeding in rem. The requirement of publication is for constructive notice to the whole world so that if the will is allowed, judgment is binding upon every person.97 But where the petition for probate has been filed by the testator himself, no newspaper publication shall be made.98

9. Persons entitled to notice. The persons entitled to notice are the heirs,

devisees and legatees, residing in the Philippines, notified by mail or personally. The executor if not the petitioner, shall also be notified by mail or personally. The mail shall be deposited in the post office with the postage prepaid at least twenty (20) days before the hearing if the places of residence are known.99 Personal service of copies of the notice at least ten (10) days before the day of the hearing shall be equivalent to mailing. If the testator is the petitioner, only the compulsory heirs are entitled to notice. Compulsory heirs under Art. 887 of the New Civil Code are:

a) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

b) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

c) The widow or widower;

d) Acknowledged natural children, and natural children by legal fiction; e) Other legitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

At the hearing, compliance with the provisions on notice and publication shall be shown before the introduction of testimony in support of the allowance of the will. All testimony shall be taken under oath and reduced to writing. 100

10. Proof required at the hearing for the probate of a will. At the hearing, the

proponent must first prove: (a) publication of the notice of hearing, and (b) service of the notice of hearing, to all known heirs, legatees and devisees, and to the executor, if he is not the petitioner.101

96 Id., 97 Supra note 38. 98 Id. 99

Id., Rule 76, Sec. 4.

100

Id., Rule 76, Sec. 5.

101

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11. Evidence required for allowance of will

a) If the allowance of the will is not contested:

i. The court may grant allowance on the testimony of one subscribing witness.102

ii. If the will is holographic, at least one witness who knows the handwriting of the testator shall be presented; in the absence of such competent witness, expert testimony may be resorted to.103

b) If the allowance of the will is contested:

i. All the subscribing witnesses and the notary public must be produced and examined104.

ii. If any or all of the attesting witnesses testify against the due execution of the will, other witnesses may be presented105.

iii. If the will is holographic, three witnesses who know the handwriting of the testator must be presented; in the absence of such competent witnesses, expert testimony may be resorted to106.

c) If the subscribing witnesses are dead, insane or not residents of the Philippines, the court may admit the testimony of other witnesses107. d) The death, insanity or absence of subscribing witnesses must be satisfactorily shown to the court. If they are residing in the Philippines but outside the province where the probate is being conducted, their depositions may be taken108.

e) Where the testator petitions for allowance of his holographic will:

i. If the petition is not contested, his own testimony shall be sufficient; ii. If the petition is contested, the burden of disproving the genuineness and due execution of the will shall be on the contestant;

iii. The testator, in his turn, may present rebuttal evidence109.

12. Proof required when a will is lost or destroyed. A will may be proved as

lost or destroyed when – 102 Id. 103 Id. 104 Id., Sec. 11. 105 Id. 106 Id. 107

Id., Rule 76, Sec. 8.

108

Id., Sec. 11.

109

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a) its execution and validity have been established;

b) the will is proved to have been in existence at the time of the death of the testator;

c) if it has been destroyed, it is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and

d) its provisions are clearly and distinctly proved by at least two credible witnesses.110

This is applicable only to notarial wills.111

13. Jurisprudence

In a relevant case,112 the Supreme Court held that the intention of the law is to give the near relatives the choice of either complying with the will if they consider it authentic, or to oppose it, if they believe it is spurious. Verily, the purpose is frustrated when the document is not presented for their examination. If it is argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if authentic, a right which they should not be denied by withholding inspection thereof from them.

Authentication does not also invalidate the will. According to the Supreme Court, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication only results in the disallowance of such changes. The requirements of authentication of changes and signing and dating of dispositions are provided for in Articles 813 and 814 of the Civil Code, while that which provides for the necessary conditions for the validity of the holographic is Article 810.113

14. Contesting a will. Anyone appearing to contest a will must state in writing

the grounds for opposing its allowance and serve a copy thereof on the petitioner and other parties interested in the estate.114 It is well-settled that in construing the provisions of a will, the intent of the testator is controlling.115

110

Id., Sec. 6; Estate of Suntay, 50 O.G. 5321.

111

Rodelas v. Aranza, G.R. No. 58509, December 7, 1982, 119 SCRA 16.

112

Testate Estate of Felicidad Esguera Alto-Yap, G.R. No. 12190, August 30, 1958.

113

Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488.

114

115

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15. Grounds for disallowance of a will. A will may not be allowed in the

following instances: a) if the will was not executed and attested as required by law; b) if the testator was insane, or otherwise mentally incapable to make a will at the time of its execution; c) if the will was executed under duress, influence of fear, or threats; d) if the will was procured by undue and improper pressure and influence on the part of the beneficiary, or of some other person for his benefit; and, 5) if the signature of the testator was procured by fraud or trick, and that the testator did not intend that the instrument should be his will at the time of fixing his signature.116

16. Letters testamentary issued when will is allowed. When a will has been

proved and allowed, the court shall issue letters testamentary to the person named executor if he is competent, accepts the trust and gives a bond.117 However, where some co-executors are disqualified, others who are competent may perform the duties and discharge the trust required by the will.118

G. LETTERS OF ADMINISTRATION

If 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, administration shall be granted to and observing the following order of preference: 1) surviving spouse or next of kin or both or to such person requested by them, if competent and willing to serve; 2) one or more of the principal creditor; or, 3) any other person that the court may select.119

Upon notice to the known heirs, creditors of the decedent, and any other persons believed to have an interest in the estate and after hearing, the court shall issue letters of administration to the party best entitled thereto. The letters of administration may be granted, however, to any qualified applicant if other competent persons having better right to the administration fail to appear when notified and claim the issuance to them.120

a) Defect in the petition does not render letters of administration void and discretionary execution allowed in special circumstances. No defect

in the petition shall render void the issuance of letters of administration.121 Section 2, Rule 39 of the Rules of Court allows discretionary execution where

116

117

Id., Rule 78, Sec. 4.

118

Id., Sec. 5.

119

Id., Rule 76, Secs. 4 and 6.

120

Id., Rule 79, Secs. 3, 5, and 6.

121

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special reasons or circumstances exist as when the estate would be left without an administrator and the prompt settlement of the estate had already been unduly delayed.122

b) The court may allow immediate assumption into office of appointed administration pending appeal. The trial court does not act with grave

abuse of discretion in ordering the immediate assumption into office of one who has been appointed as administrator before the perfection of an appeal from the order appointing him as such, where sufficient reasons exist to order execution pending appeal.

c) Surviving spouse is preferred as administrator. The surviving spouse is

preferred in the appointment of an administrator,123 interest in the estate being the principal consideration. Accordingly, the Supreme Court in the case of Gonzalez v. Aguinaldo, et.al.,124 held that those who will reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly.

2. Contents of petition for letters of administration. The contents of a petition

for letters of administration are as follows: jurisdictional 1) facts;125 2) names, ages and residences of the heirs, and the names and residences of the creditors and of the decedent; 3) probable value and character of the property of the estate; and, 4) name of the person for whom letters of administration are prayed.126

3. Persons disqualified from being appointed administrator or executor. A

person is not competent to serve as executor or administrator in the following instances: a) minor person; b) not a resident of the Philippines; or, c) in the opinion of the court, the person is unfit to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.127 Also, a judge cannot serve as executor, administrator, trustee, or guardian, except when acting

122

Supra note 38.

123

124

G.R. No. 74769, September 28, 1990, 190 SCRA 112.

125

The jurisdictional facts are the death of testator and residence within the country, as held in the case of Vda. De Manalo v. Court of Appeals, G.R. No. 129242, January 16, 2001, 349 SCRA 135.

126

127

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in a fiduciary capacity for the estate, trust or person of a member of the immediate family.128

H. APPOINTMENT OF A SPECIAL ADMINISTRATOR

The appointment of a special administrator is necessary only when there is delay in granting letters testamentary if the decedent left a will or for administrative purpose, as when the decedent did not leave a will brought about by any cause. The principal reason of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person allowed under the law to administer it for the benefit of creditors and the heirs.129

Special Administrator may also be appointed when the executor or administrator has a claim against the estate he represents.130

a. Appointment of special administrator maybe revoked based on loss of confidence. The Supreme Court found no grave abuse of discretion on

the part of the court when it revoked the appointment of respondents as joint special administrators, the removal being grounded on reason, equity, justice, and legal principle. Even if special administrators had already been appointed, once the probate court finds the appointees no longer entitled to its confidence; it is justified in withdrawing the appointment and giving no valid effect thereto.131

b. Termination of appointment or removal of special administrator. The

special administrator may be removed on grounds other than those mentioned in Rule 82 referring to death, resignation or removal.132 And, when an executor or administrator is appointed, the powers of the special administrator cease and the special administrator shall immediately deliver the estate to the executor or administrator who may take over legal suits commenced by the special administrator.133

The order of the probate court appointing a special administrator is not appealable.134 The remedy is certiorari because the appointment and removal of special administrator rests on the sound discretion of the court.

128

Ramos v. Judge Barot, A.M. MTJ-001338, January 21, 2004, 420 SCRA 406.

129

Tan v. Hon. Gendorio, et. al., G.R. No. 166520, March 14, 2008; 548 SCRA 528.

130

131

Ocampo et. al., v. Ocampo, G.R. No. 187879, July 5, 2010.

132

De Gala v. Gonzales, 53 Phil. 104 (1929); Roxas v. Pecson, 82 Phil. 407 (1948).

133

134

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3. General powers and duties of executors and administrators. An executor

and administrator shall have the following powers and duties:

1) maintain the estate in “tenantable repair” and deliver the same to the heirs or devisees when directed by the court;135

2) possess and manage the estate of the deceased for the payment of the debts and expenses of administration;136

3) have access to partnership books and property where the deceased was a partner, examine the same and upon his written application, the court may order any surviving partner to permit the exercise of the rights and to exhibit the books and property and may punish any partner failing to do so for contempt;137 and,

4) with the approval of the court, to compound or compromise with a debtor of the deceased.138 But, the administrator may only deliver properties of the estate to the heirs after the payment of the debts, funeral charges and other expenses against the estate, except when authorized by the court.139

I. INVENTORY, APPRAISAL, AND EXCLUSIONS

Within three (3) months after appointment, an executor or administrator shall file a true inventory and appraisal of all the real and personal estate of the deceased, with the assistance of one or more inheritance tax appraisers, as may be ordered by the court.140 The articles that shall not be inventoried are the following: 1) the wearing apparel of the surviving spouse and minor children; 2) the marriage bed and bedding; and, 3) such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. Further, they shall not be considered as assets, nor administered as such.141

In a case, it was held that the probate court may determine if properties shall be included in the inventory. Inasmuch as the probate court can resolve questions of title provisionally, it may determine whether the properties should not be included in the inventory or list of properties to be administered by the administrator. However, if there is a dispute as to title, the parties, the administrator and the opposing parties shall resort to an ordinary action for the final determination of the conflicting claims as the probate court has no authority to do so.142

135

136

Id., Sec. 3.

137

Id., Sec. 1.

138

Id., Rule 87, Sec. 4.

139

Silverio, Jr. v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1.

140

141

Id., Sec. 2.

142

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J. ALLOWANCE TO THE WIDOW AND FAMILY

The widow and minor or incapacitated children of the deceased, during the settlement of the estate, shall receive allowance as are provided by law.143 And, under Section 3 of Rule 83, allowances for support are not limited to the “minor or incapacitated” children of the deceased but extends to the deceased’s legitimate spouse and children, regardless of their age, civil status or gainful employment, who are entitled to provisional support from the funds of the estate. The allowance for support is pursuant to Article 188 of the Civil Code which is rooted on the right and duty to support, especially the right to education that subsists even if the children are already beyond the age of majority. 144

Grandchildren are not entitled to provisional support from the funds of the decedent’s estate. The law clearly limits the allowance to “widow and children” and does not extend it to the deceased’s grandchildren, regardless of their minority or incapacity.145

K. SALES, MORTGAGES AND PAYMENT OF DEBTS

The approval by the probate court is necessary where specific properties of the estate are sold, but not when only ideal and indivisible shares of an heir are disposed of.146 The sale or mortgage of specific estate property may be approved by the court under the following circumstances: 1) for the payment of debts pay the obligation of the estate; and, 2) if a part of the real property cannot be sold, or otherwise encumbered without injury to those interested in the remainder, the disposition may be of the whole of the property, or so much as necessary or beneficial under the circumstances.147

1. Persons interested may prevent sale by filing bond. Persons interested

may prevent a sale, mortgage, or encumbrance by giving a bond in a sum to be fixed by the court, conditioned to pay the obligations of the estate. Such bond shall be for the security of the creditors, as well as the executor or administrator.148

143

144

Estate of Hilario Ruiz, et. al., v. Court of Appeals, et. al., G.R. No. 118671, January 29, 1996; 252 SCRA 541.

145

Id.

146

Heirs of Pedro Escanlar v. Court of Appeals, G.R. No. 119777, October 23, 1997, 281 SCRA 176.

147

148

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The mortgage of property of estate without authority of the court is void, thus, the purchaser at public auction acquires no title over the property. The real estate mortgage contracts, as well as the correlative extrajudicial foreclosure and the sale of the property described therein at public auction, can be attacked directly and collaterally.149

L. CONDITIONS FOR GRANTING AUTHORITY TO SELL, MORTGAGE, OR ENCUMBER THE ESTATE

The conditions for granting authority to sell, mortgage or encumber the estate are as follows:

1) the executor or administrator shall file a written petition, setting forth the following: [a] the debts due from the deceased, [b] the expenses of administration, [c] the legacies, [d] the value of the personal estate, [e] the condition of the estate to be sold, mortgaged, or otherwise encumbered, and [f]) such other facts as will show that the sale, mortgage, or other encumbrance is necessary or beneficial;

2) the court shall then cause notice to the persons interested, stating the nature of petition, the reason for the same, the time and place of hearing and the court may cause further notice by publication or otherwise;

3) the court may direct the executor or administrator to give an additional bond to account for the proceeds of the sale, mortgage, or other encumbrance; and,

4) the court may then grant the petition to sell, mortgage or encumber in proper cases, such part of the estate as it deems necessary.

For the mode of sale, the court may authorize the sale to be public or private, as would be most beneficial to all parties concerned. If the property 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. The transaction and court order shall be recorded in the registry of deeds.150

M. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Rule 87, Section 1 of the Rules of Court provides that no action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator. But, actions that survive, such as a claim to recover real or personal property, or an interest therein from the estate or to enforce a lien

149

Orola v. Pontevedra, G.R. No.158566, September 20, 2005, 470 SCRA 352.

150

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thereon, and actions to recover damages for an injury to person151 or property, real or personal, maybe commenced against the executor or administrator.

Felonies committed in forcing parties to sign an agreement is an action against the executor or administrator. The Supreme Court, in one

case, ruled that the Rules of Court has separate provisions for different claims against the estate of a decedent under Section 5 of Rule 86152 and Section 1 of Rule 87.153 If, as insisted by petitioners, respondents committed felonies in forcing them to sign the letter-agreement, petitioners, according to the Supreme Court, should have filed an action against the executor or administrator of the estate based on Section 1, Rule 87 of the Rules of Court, not a claim against the estate based on contract.154

2. Actions that survive. In general, executors and administrators may bring or

defend actions that survive. Actions that survive are those actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal.155 Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to creditors required under Rule 86 of the Rules of Court as these actions, being civil in nature, survive the death of the decedent and may be commenced against the administrator, pursuant to Rule 87, Section 1, of the Rules of Court.156

3. Claims that do not survive. Claims that do not survive, on the other hand,

are money claims that are filed in the estate proceedings or any of the following: a) claims arising from contract, express or implied, whether due, not due or contingent;157 b) all claims for funeral expenses; c) expenses for the sickness of the decedent; and, d) judgment for money against the decedent, which should be presented in the form of claims against the estate.158 If the deceased was a mortgagee or assignee of the right of a mortgagee, the mortgage may be foreclosed by the executor or administrator.159

151

Melgar v. Buenviaje, G.R. No. 55750, November 8, 1989, 179 SCRA 196.

152

Claims that must be filed under the notice to creditors, such as money claims.

153

Actions that may or may not be brought against the executor or administrator.

154

ABS-CBN Broadcasting Corporation, et. al., v. Office of the Ombudsman, et. al., G.R. No. 133347, April 23, 2010.

155

156

Hilado et. al., v. Court of Appeals, G.R. No. 164108, May 8, 2009, 587 SCRA 464.

157

These claims are specifically described as contractual money claims in the RULES OF COURT, Rule 3, Sec. 20.

158

RULES OF COURT, Rule 86, Sec. 5; Belamala v. Polinar, G.R. No. 24098, November 18, 1967, 21 SCRA 970.

159

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N. PROCEEDINGS WHEN PROPERTY IS CONCEALED, EMBEZZLED OR FRAUDULENTLY CONVEYED

When a person is suspected of having concealed, embezzled or conveyed away any of the money or chattels of the deceased, or such person possesses or knows of a document which contains evidence of or tends to disclose the right of the deceased to real or personal estate, or the last will and testament of the deceased, the court may cite such suspected person to appear or to answer, and may examine him on oath.160

If the person so cited refuses to appear and give rogatories, the court may punish him for contempt and may commit him to prison until he submits to the order of the court. The interrogatories, if there are any, and the answers thereto, shall be in writing and shall be filed in court.161

O. DOUBLE VALUE RULE

It is provided under Rule 87, Section 8, of the Rules of Court, that a person who, before the granting of letters testamentary or administration, embezzles or alienates any money, goods, chattels or effects of the deceased, shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property misappropriated, to be recovered for the benefit of the estate. This applies to a situation where the embezzlement causes loss to the estate.162

P. RENDITION OF ACCOUNT

A person entrusted by the executor or administrator with property of the deceased, may be compelled to render a full account on oath before the court.163 A person who embezzles or alienates property of the deceased before issuance of letters testamentary or of administration is liable for double the value of the property embezzled.164 160 Id., Sec. 6. 161 Id. 162

Marshall v. Anthalz, 54 Phil. 448 (year).

163

164

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Q. REMEDY FOR FRAUDULENT CONVEYANCE BY THE DECEASED DURING HIS LIFETIME

By an executor or administrator By the creditor in the name of the executor or administrator

In case of fraudulent conveyance, an executor or administrator may file an action as when there is a deficiency of assets to pay the debts, but the deceased during his lifetime conveyed property with intent to defraud his creditors, the conveyance would by law be void as against creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, unless the creditors pay for the costs and expenses thereof or give security as the court deems equitable;165

In case of fraudulent conveyance, a creditor may file an action upon the filing of a bond approved by the court to indemnify the executor and or administrator subject to the following requirements: 1) deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration; 2) deceased in his lifetime made or attempted to make fraudulent conveyance of his real or personal property or a right or interest therein, or debt or credit, with intent to defraud his creditors or to avoid any right, debt or duty or had so conveyed such property, right, debt or credit that by law, the conveyance would be void as against his creditors; 3) subject of the attempted conveyance would be liable to attachment by any of them in his lifetime; 4) the executor or administrator have shown to have no desire to file the action or failed to institute the same within reasonable time; 5) leave of court; and, 6) bond; in the name of executor or administrator.166

R. STATUTE OF NON-CLAIMS

Immediately after granting letters testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file the same in the office of the clerk of court.167 In the notice to file money claims, the court shall state the time for the filing of the claims against an estate which shall not be more than twelve (12) nor less than six (6) months after the date of the first publication of the notice. The period is to ensure the speedy settlement of the estate for the benefit of the creditors and those entitled to the residue.168

165

Id., Sec 9.

166

Oscar M. Herrera, REMEDIAL LAW III-A, 2005 Ed., pp. 174-175.

167

168

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S. EXTENSION OF PERIOD TO ALLOW CONTINGENT CLAIM

However, before an order of distribution is issued, the court may, for cause shown and on such terms as are equitable, allow a claim to be filed within a time not exceeding one (1) month.169

a. Court has discretion to extend period. In one case, the Supreme Court

ruled that Rule 86, Section 2, of the Rules of Court gives the probate court discretion to allow claims presented beyond the period fixed, provided that they are filed within one (1) month from the expiration of the period but in no case beyond the date of entry of the order of distribution. Thus, a contingent claim filed within both periods is allowed.170

b. Pendency of the case before the regular courts is good excuse for delay of claim. More to the point, the period prescribed in the notice to

creditors is not exclusive; that money claims against the estate may be allowed anytime before an order of distribution is entered, at the discretion of the court for cause and upon such terms as are equitable. And, the pendency of the case before the regular courts was considered a good excuse for the delay of the claim.171

T. FILING OF CLAIMS

A claim may be filed with the clerk of court with the necessary vouchers and supporting affidavits, serving a copy of thereof on the executor or administrator. 172 If

the claim is not due, or is contingent, it must also be supported by affidavit stating the particulars thereof. When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant.173

1. Money claim against the estate does not require certification of non-forum shopping. A certification of non-non-forum shopping is required only for

complaints and other initiatory pleadings and not in contingent money claim against the estate of a decedent which is not an initiatory pleading. The whole probate proceeding is initiated upon the filing of the petition for allowance of the decedent's will. Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money

169

170

Danan v. Buencamino, G.R. No. 57205, December 14, 1981, 110 SCRA 352.

171

Echaus v. Blanco, G.R. No. 41295, December 4, 1989, 179 SCRA 704.

172

173

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claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims.174

U. TYPES OF CLAIM TO BE PRESENTED

The claims that must be filed under the notice are as follows: a) all claims for money against the decedent arising from contract, express or implied, whether the same be due, not due, or contingent; b) all claims for funeral expenses and expenses for the last sickness of the decedent; and, c) judgment for money against the decedent.175

V. TIME BAR AND SET-OFF

Claims that are not filed within the time limited in the notice are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commended by the deceased in his lifetime, a debtor may set forth in an action by the executor or administrator against him, by answer, the claims he has against the decedent, instead of presenting them independently as a claim against the estate and mutual claims may be set off against each other in such action. Claims that are not yet due, or are contingent, may be approved at their present value.176

W. DISPOSITION OF ADMITTED CLAIM AND TRIAL OF CONTESTED CLAIM

Any claim admitted by the executor or administrator shall immediately be submitted by the clerk to the court who may approve the same without hearing; but the court may order that known heirs, legatees, or devisees be notified and heard.177 If an heir, legatee, or devisee opposes the claim, the court may allow the opposing party fifteen (15) days to answer the claim. Upon the filing of an answer or upon the expiration of the time for filing, the clerk of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner.178

174

Sheker v. Sheker, G.R. No. 157912, December 13, 2007, 540 SCRA 111.

175

176

Id.

177

Id., Sec. 11.

178

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X. APPEAL OF JUDGMENT

The judgment of the court approving or disapproving a claim is appealable179. A judgment against the executor or administrator to pay shall not create any lien upon the property of the estate, or give to the judgment creditor any priority of payment.180

Appeal as to commission of the special administrator can proceed independently of the certiorari regarding the appointment of an auditor. In a

case decided by the Supreme Court, it was held that the matter appealed was the special administrator's commission, a charge that is a claim against the estate under administration, while the matter covered by the petition for certiorari was the appointment of an auditor who would pass upon the special administrator's final account. By their respective natures, according to the Court, these matters can exist independently of one another and can proceed separately, as provided for by Rule 109 of the Rules of Court.181

Y. PAYMENT OF DEBTS

1. Where there are sufficient assets to pay the debts:

a) If the testator makes provision by his will or designates the estate to be appropriated for the payment of debts, they shall be paid according to the provisions of the will.182

b) If the estate designated in the will is not sufficient, such part of the estate as is not disposed of by will shall be appropriated for the purposed.183 c) The personal estate not disposed of by will shall be first chargeable with

payment of debts and expenses.184

d) If the personal estate is not sufficient, or its sale would be detrimental to the participants of the estate, the real estate not disposed of by will shall be sold or encumbered for that purpose.185

e) Any deficiency shall be met by contributions from devisees, legatees and heirs who have entered into possession of portions of the estate before debts and expenses have been paid.186

179

Id., Rule 109, Sec. 1 (c). 180

Id., Sec. 13.

181

Briones v. Henson-Cruz, G.R. No. 159130, August 22, 2008, 563 SCRA 69.

182

183 Id. 184 Id., Sec. 3. 185 Id. 186 Id., Sec. 6.

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f) The executor or administrator shall retain sufficient estate to pay contingent claims when the same become absolute.187

2. Where the estate is insolvent.

a) The executor or administrator shall pay the debts in accordance with the preference of credits established by the Civil Code.188

b) No creditor of any one class shall receive any payment until those of the preceding class are paid.189

c) If there are no assets sufficient to pay the credits of any one class of creditors, each creditor within such class shall be paid a dividend in proportion to his claim.190

d) Where the deceased was a non-resident, his estate in the Philippines shall be disposed of in such a way that creditors in the Philippines and elsewhere may receive an equal share in proportion to their respective credits.191

e) Claims duly proved against the estate of an insolvent resident of the Philippines, the executor or administrator having had the opportunity to contest such claims, shall be included in the certified list of claims proved against the deceased. The owners of such claims shall be entitled to a just distribution of the estate in accordance with the preceding rules if the property of such deceased person in another country is likewise equally apportioned to the creditors residing in the Philippines and other creditors, according to their respective claims.192

3. The payment of debts of the deceased shall be made pursuant to the order of payment issued by the probate court193.

Z. TIME FOR PAYING DEBTS AND LEGACIES

The executor or administrator shall pay the debts and legacies of the deceased within a period of time fixed by the court, which shall not exceed one (1) year, but the court may, on motion of the executor or administrator and after hearing, extend the time as the circumstances of the estate require, not exceeding six (6) months for a single extension, but the whole period allowed to the original executor or administrator shall not exceed two (2) years.194

187 Id., Sec. 4. 188 Id., Sec. 7. 189 Id., Sec. 8. 190 Id. 191 Id., Sec. 9. 192 Id., Sec. 10. 193

Id., Rule 88, Sec. 11.

194

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AA. WHEN ORDER OF DISTRIBUTION OF RESIDUE MADE

Under Rule 90, Section 1 of the Rules of Court, the properties of the estate shall only be distributed after the payment of the debts, funeral charges, allowance of the widow, inheritance tax, if any, and other expenses on the application of the executor or administrator, except when authorized by the Court.195

BB. COLLATION

Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator.196

Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition.197

Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator. Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent. The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in interest making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessor's will is to treat all his heirs equally, in the absence of any expression to the contrary. Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or donee.198

195

Silverio, Jr., v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1.

196

Vizconde v. Court of Appeals, G.R. No. 118449, February 11, 1998, 286 SCRA 217.

197

CIVIL CODE, Art. 1061.

198