BAR QUESTIONS 1997-2018

SPECIAL PROCEEDINGS (RULE 72-85)

I. Nestor died intestate in 2003, leaving no debts. How may his estate be settled by his heirs
who are of legal age and have legal capacity? Explain. (2%)
SUGGESTED ANSWER: If the decedent left no will and no debts, and the heirs are all of age, the parties
may, without securing letters of administration, divide the estate among themselves by means of a public
instrument or by stipulation in a pending action for partition and shall file a bond with the register of
deeds in an amount equivalent to the value of the personal property involved as certified to under oath by
the parties concerned. The fact of extra-judicial settlement shall be published in a newspaper of general
circulation once a week for three consecutive weeks in the province. (Sec. 1, Rule 74, Rules of Court)
II. X filed a claim in the intestate proceedings of D. D’s administrator denied liability and filed
a counterclaim against X. X’s claim was disallowed.
(1) Does the probate court still have jurisdiction to allow the claim of D’s administrator by way of
offset? Why? (2%)
(2) Suppose D’s administrator did not allege any claim against X by way of offset, can D’s
administrator prosecute the claim in an independent proceeding/ why/ (3%)
SUGGESTED ANSWER: (1) No, because since the claim of X was disallowed, there is no amount
against which to offset the claim of D’s administrator.
(2) Yes, D’s administrator can prosecute the claim in an independent proceeding since the claim of X was
disallowed. If X had a valid claim and D’s administrator did not allege any claim against X by way of
offset, his failure to do so would bar his claim forever. (Rule 86, sec. 10).
III. A, B and C, the only heirs in D’s intestate proceedings, submitted a project of partition to
the partition, two lots were assigned to C, who immediately entered into the possession of
the lots. Thereafter, C died and proceedings for the settlement of his estate were filed in the
RTC-Quezon City. D’s administrator then filed a motion in the probate court (RTC-
Manila), praying that one of the lots assigned to C in the project of partition be turned over
to him to satisfy debts corresponding to C’s portion. The motion was opposed by the
administrator of C’s estate. How should the RTC-Manila resolve the motion of D’s
administrator? Explain. (3%)
SUGGESTED ANSWER: The motion of D’s administrator should be granted. The assignment of the
two lots to C was premature because the debts of the estate had not been fully paid. [Rule 90, sec. 1;
Reyes v. Barreto-Datu, 19 SCRA 85 (1967)].
IV. State the rule on venue in judicial settlement of estate of deceased persons. (2%)
SUGGESTED ANSWER: If the decedent is an inhabitant of the Philippines at the time of' his death,
whether a citizen or an alien, the venue shall be in the RTC in the province in which he resides at the time
of his death, not in the place where he used to live. (Jao v. Court of Appeals, G.R. No. 128314, May 29,
2002)
If he is an inhabitant, of a foreign country, the RTC of any province or city in which he had estate shall be
the venue. The court first taking cognizance of the case shall exercise jurisdiction to the exclusion of all
 other courts. When the marriage is dissolved by the death of the husband or wife, the community property
shall be inventoried, administered and liquidated, and the debts thereof paid, in the testate or intestate
proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of either. (Sees. 1 and 2, Rule 73, Rules of Court)
V. What are the requisites in order that a lost or destroyed Will may be allowed? (2%)
SUGGESTED ANSWER: a. In order that a lost or destroyed will may be allowed, the following must be
complied with:
1. the execution and validity of the same should be established;
2. the will must have been in existence at the time of the death of the testator, or shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and
3. its provisions are clearly and distinctly proved by at least two credible witnesses. (Sec. 6, Rule 76 of
the Rules of Court)
VI. A's Will was allowed by the Court. No appeal was taken from its allowance. Thereafter, Y,
who was interested in the estate of A, discovered that the Will was not genuine because A's
signature was forged by X. A criminal action for forgery was instituted against X. May the
due execution of the Will be validly questioned in such criminal action? (2%)
SUGGESTED ANSWER: b. No. The allowance of the will from which no appeal was taken is
conclusive as to its due execution. (Sec. 1 of Rule 75.) Due execution includes a finding that the will is
genuine and not a forgery. Accordingly, the due execution of the will cannot again be questioned in a
subsequent proceeding, not even in a criminal action for forgery of the will.
VII. A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth
P200,000.00. In what court, taking into consideration the nature of jurisdiction and of
venue, should the probate proceeding on the estate of A be instituted? (4%)
SUGGESTED ANSWER: The probate proceeding on the estate of A should be instituted in the
Municipal Trial Court of Malolos, Bulacan which has jurisdiction, because the estate is valued at
P200,000.00, and is the court of proper venue because A was a resident of Malolos at the time of his
death. (Sec. 33 of BP 129 as amended by RA 7691; Sec. 1 of Rule 73).
VIII. After Lulu's death, her heirs brought her last will to a lawyer to obtain their respective
shares in the estate. The lawyer prepared a deed of partition distributing Lulu's estate in
accordance with the terms of her will. Is the act of the lawyer correct? Why? (2%)
SUGGESTED ANSWER: No. No will, shall pass either real or personal estate unless it is proved and
allowed in the proper court. (Sec. 1, Rule 75, Rules of Court)
IX. Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village,
Muntinlupa City, of sound and disposing mind, executed a last will and testament in
English, a language spoken and written by him proficiently. He disposed of his estate
consisting of a parcel of land in Makati City and cash deposit at the City Bank in the sum of
P 300 Million. He bequeathed P 50 Million each to his 3 sons and P 150 Million to his wife.
He devised a piece of land worth P100 Million to Susan, his favorite daughter-inlaw. He
named his best friend, Cancio Vidal, as executor of the will without bond.
Is Cancio Vidal, after learning of Sergio's death, obliged to file with the proper court a petition of
probate of the latter's last will and testament? (2%)
SUGGESTED ANSWER: Cancio Vidal is obliged to file a petition for probate and for accepting or
refusing the trust within the statutory period of 20 days under Sec. 3, Rule 75, Rules of Court.
Supposing the original copy of the last will and testament was lost, can Cancio compel Susan to
produce a copy in her possession to be submitted to the probate court. (2%)
SUGGESTED ANSWER: Yes, Cancio can compel Susan to produce the copy in her possession. A
person having custody of the will is bound to deliver the same to the court of competent jurisdiction or to
the executor, as provided in Sec. 2, Rule 75, Rules of Court.
Can the probate court appoint the widow as executor of the will? (2%)
SUGGESTED ANSWER: Yes, the probate court can appoint the widow as executor of the will if the
executor does not qualify, as when he is incompetent, refuses the trust, or fails to give bond (Sec. 6, Rule
78, Rules of Court).
Can the widow and her children settle extrajudicially among themselves the estate of the deceased?
(2%)
SUGGESTED ANSWER: No, the widow and her children cannot settle the estate extrajudicially because
of the existence of the Will. No will shall pass either real or personal estate unless it is proved and
allowed in the proper court (Sec. 1, Rule 75, Rules of Court).
Can the widow and her children initiate a separate petition for partition of the estate pending the
probate of the last will and testament by the court? (2%)
SUGGESTED ANSWER: No, the widow and her children cannot file a separate petition for partition
pending the probate of the will. Partition is a mode of settlement of the estate (Sec. 1, Rule 75, Rules of
Court).
X. What should the court do if, in the course of intestate proceedings, a will is found and it is
submitted for probate? Explain. (2%)
SUGGESTED ANSWER: If a will is found in the course of intestate proceedings and it is submitted for
probate, the intestate proceedings will be suspended until the will is probated. Upon the probate of the
will, the intestate proceedings will be terminated. (Rule 82, sec. 1).
XI. The rules on special proceedings ordinarily require that the estate of the deceased should be
judicially administered thru an administrator or executor. What are the two exceptions to
said requirements? (5%)
SUGGESTED ANSWER: The two exceptions to the requirement are:
(a) Where the decedent left no will and no debts and the heirs are all of age, or the minors are represented
by their judicial or legal representatives duly authorized for the purpose, the parties may without securing
letters of administration, divide the estate among themselves by means of public instrument filed in the
office of the register of deeds, or should they disagree, they may do so in an ordinary action of partition.
If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the
office of the register of deeds. The parties or the sole heir shall file simultaneously abound with the
register of deeds, in an amount equivalent to the value of the personal property as certified to under oath
 by the parties and conditioned upon the payment of any just claim that may be filed later. The fact of the
extrajudicial settlement or administration shall be published in a newspaper of general circulation in the
province once a week for three consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)
(b) Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does
not exceed ten thousand pesos, and that fact is made to appear to the RTC having jurisdiction or the estate
by the petition of an interested person and upon hearing, which shall be held not less than one (1) month
nor more than three (3) months from the date of the last publication of a notice which shall be published
once a week for three consecutive weeks in a newspaper of general circulation in the province, and after
such other notice to interested persons as the court may direct, the court may proceed summarily, without
the appointment of an executor or administrator, to settle the estate. (Sec. 2 of Rule 74, Rules of Court)
XII. A, claiming to be an illegitimate child of the deceased D, instituted an Intestate proceeding
to settle the estate of the latter. He also prayed that he be appointed administrator of said
estate. S, the surviving spouse, opposed the petition and A's application to be appointed the
administrator on the ground that he was not the child of her deceased husband D. The
court, however, appointed A as the administrator of said estate. Subsequently, S, claiming
to be the sole heir of D, executed an Affidavit of Adjudication, adjudicating unto herself the
entire estate of her deceased husband D. S then sold the entire estate to X.
Was the appointment of A as administrator proper? [2%]
Was the action of S in adjudicating the entire estate of her late husband to herself legal? [3%]
SUGGESTED ANSWER: 1. Yes, unless it is shown that the court gravely abused its discretion in
appointing the illegitimate child as administrator, instead of the spouse. While the spouse enjoys
preference, it appears that the spouse has neglected to apply for letters of administration within thirty (30)
days from the death of the decedent. (Sec. 6, Rule 78, Rules of Court; Gaspay, Jr. vs. Court of Appeals.
238 SCRA 163.)
ALTERNATIVE ANSWER: S, the surviving spouse, should have been appointed administratrix of the
estate, in as much as she enjoys first preference in such appointment under the rules. (Sec. 6(a) of Rule
78, Rules of Court.)
SUGGESTED ANSWER: 2. No. An affidavit of self-adjudication is allowed only if the affiant is the
sole heir of the. deceased. (Sec. 1, Rule 74, Rules of Court). In this case, A also claims to be an heir.
Moreover, it is not legal because there is already a pending juridical proceeding for the settlement of the
estate.
XIII. Give the proper venue for the following special proceedings:
b) A petition for the appointment of an administrator over the land and building left by an
American citizen residing in California, who had been declared an incompetent by an American
court.
SUGGESTED ANSWER: (b) The venue for the appointment of an administrator over land and building
of an American citizen residing in California, declared Incompetent by an American Court, is the RTC of
the place where his property or part thereof is situated. (Sec. 1. Rule 92).
XIV. Domencio and Gen lived without benefit of marriage for 20 years, during which time they
purchased properties together. After Domencio died without a will, Gen filed a petition for
 letters of administration. Domencio’s siblings opposed the same on the ground that Gen has
no legal personality. Decide.
SUGGESTED ANSWER: A petition for letters of administration may be filed by any “interested person”
(Sec. 2, Rule 79, Rules of Court). Gen would be considered an interested person if she was not married to
Domenico, because she can claim coownership of the properties left by him under their property regime
of a union without marriage under conditions provided in the Family Code 9Arts. 147148, Family Code;
San Luis vs. San Luis, G.R. No. 133743, February 6, 2007).
XV. Czarina died single. She left all her properties by will to her friend Duqueza. In the will,
Czarina stated that she did not recognize Marco as an adopted son because of his
disrespectful conduct towards her.
Duqueza soon instituted an action for probate of Czarina’s will. Marco, on the other hand,
instituted intestate proceedings. Both actions were consolidated before the RTC of Pasig. On
motion of Marco, Duqueza’s petition was ordered dismissed on the ground that the will is void for
depriving him of his legitime. Argue for Duqueza. (5%)
SUGGESTED ANSWER: The petition for probate of Czarina‟s will, as filed by Duquesa should not be
dismissed on mere motion of Marco who instituted intestate proceedings. The law favors testacy over
intestacy, hence, the probate of the will cannot be dispensed with. (See Sec. 5, Rule 75) Thus, unless the
will – which shows the obvious intent to disinherit Marco – is probated, the right of a person to dispose of
his property may be rendered nugatory (See Seanio vs. Reyes, G.R. Nos. 140371-72, Nov. 27, 2006).
Besides, the authority of the probate court is generally limited only to a determination of the extrinsic
validity of the will. In this case, Marco questioned the intrinsic validity of the will.
XVI. The heirs of H agree among themselves that they will honor the division of H’s estate as
indicated in her Last Will and Testament. To avoid the expense of going to court in a
Petition for Probate of the Will, can they instead execute an Extrajudicial Settlement
Agreement among themselves? Explain briefly. (5%)
SUGGESTED ANSWER: The heirs of H cannot validly agree to resort to extrajudicial settlement of his
estate and do away with the probate of H‟s last will and testament. Probate of the will is mandatory
(Guevarra v. Guevarra, 74 Phil. 479 [1943]). The policy of the law is to respect the will of the testator as
manifested in the other dispositions in his last will and testament, insofar as they are not contrary to law,
public morals and public policy. Extrajudicial settlement of an estate of a deceased is allowed only when
the deceased left no last will and testament and all debts, if any, are paid (Rule 74, Sec. 1, Rules of
Court).
XVII. What are the jurisdictional facts that must be alleged in a petition for probate of a will?
How do you bring before the court these jurisdictional facts? (3%)
SUGGESTED ANSWER: The jurisdictional facts in a petition for probate are:
(1) that a person died leaving a will;
(2) in case of a resident, that he resided within the territorial jurisdiction of the court; and
(3) in the case of a non-resident, that he left an estate within such territorial jurisdiction.
The jurisdictional facts shall be contained in a petition for allowance of will.
XVIII. An heir/oppositor in a probate proceeding filed a motion to remove the administrator on
the grounds of neglect of duties as administrator and absence from the country. On his part
the heir/oppositor served written interrogatories to the administrator preparatory to
presenting the latter as a witness. The administrator objected, insisting that the modes of
discovery apply only to ordinary civil actions, not special proceedings. Rule on the matter.
SUGGESTED ANSWER: No, the administrator is not correct. Modes of discovery apply also to special
proceedings. Sec. 2, Rule 72 states that in the absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable, applicable in special proceedings.
XIX. Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of his death,
bequeathed to Winston a sum of money to purchase an annuity.
Upon Pedrillo’s demise, his will was duly probated in Los Angeles and the specified sum in the will
was in fact used to purchase an annuity with XYZ of Hong Kong so that Winston would receive the
equivalent of US$1,000 per month for the next 15 years.
Wanting to receive the principal amount of the annuity, Winston files for the probate of Pedrillo’s
will in the Makati RTC. As prayed for, the court names Winston as administrator of the estate.
Winston now files in the Makati RTC a motion to compel XYZ to account for all sums in its
possession forming part of Pedrillo’s estate. Rule on the motion. (5%)
SUGGESTED ANSWER: The motion should be denied. Makati RTC has no jurisdiction over XYZ of
hongkong. The letters of administration granted to Winston only covers all Pedrillo‟s estate in the
Philippines. (Rule 77, Sec. 4) This cannot cover the annuities in Hongkong.
At the outset, Makati RTC should not have taken cognizance of the petition filed by Winston, because the
will does not cover any property of Pedrillo located here in the Philippines.
XX. Sal Mineo died intestate, leaving a P1 billion estate. He was survived by his wife Dayanara
and their five children.
Dayanara filed a petition for the issuance of letters of administration. Charlene, one of the children,
filed an opposition to the petition, alleging that there was neither an allegation nor genuine effort to
settle the estate amicably before the filing of the petition. Rule on the opposition. (5%)
SUGGESTED ANSWER:
The opposition should be overruled for lack of merit. The allegation that there was a genuine effort to
settle the estate amicably before the filing of the petition is not required by the Rules. Besides, a petition
for issuance of letters of administration may be contested on either of two grounds :
(1) the incompetency of the person for whom letters are prayed therein; and
(2) the contestant’s own right to the administration. (Sec. 4, Rule 9).
XXI. Pinoy died without a will. His wife, Rosie and three children executed a deed of
extrajudicial settlement of his estate. The deed was properly published and registered with
the Office of the Register of Deeds. Three years thereafter, Suzy appeared, claiming to be
the illegitimate child of Pinoy. She sought to annul the settlement alleging that she was
deprived of her rightful share in the estate.
 Rosie and the Three Children contended that (1) the publication of the deed constituted
constructive notice to the whole world, and should therefore bind Suzy; and (2) Suzy’s action had
already prescribed.
Are Rosie and the Three Children Correct? Explain.
SUGGESTED ANSWER: NO, the contention is not correct. Suzy can file a complaint to annul the
extrajudicial settlement and she can recover what is due her as such heir if her status as an illegitimate
child of the deceased has been established. The publication of the settlement does not constitute
constructive notice to the heirs who had no knowledge or did not take part in it because the same was
notice after the fact of execution. The requirement of publication is intended for the protection of
creditors and was never intended to deprive heirs of their lawful participation in the decedent’s estate. She
can file the action therefor within four (4) years after the settlement was registered.
XXII. Johnny, a naturalized citizen of the United States of America (USA) but formerly a Filipino
citizen, executed a notarial will in accordance with the laws of the State of California, USA.
Johnny, at the time of his death, was survived by his niece Anastacia, an American citizen
residing at the condominium unit of Johnny located at Fort Bonifacio, Taguig City; a
younger brother, Bartolome, who manages Johnny’s fish pond in Lingayen, Pangasinan;
and a younger sister, Christina, who manages Johnny’s rental condominium units in
Makati City. Johnny’s entire estate which he inherited from his parents is valued at P200
million. Johnny appointed Anastacia as executrix of his will. (4%)

(A) Can Johnny’s notarial will be probated before the proper court in the Philippines?
(B) Is Anastacia qualified to be the executrix of Johnny’s notarial will?

SUGGESTED ANSWERS: (A) Yes, the formal validity of a will is governed also by the national law of
the decedent. (Article 817, Civil Code).

A will proved and allowed in a foreign country, according to the laws of such country, may be allowed,
filed, and recorded by the proper Regional Trial Court in the Philippines. (S1 R77).

(B) Yes, assuming that Anastacia is of legal age, she is qualified to be an executor although an alien
because she is a resident of the Philippines. (S1 R78).

XXIII. Chika sued Gringo, a Venezuelan, for a sum of money. The Metropolitan Trial Court of
Manila (MeTC) rendered a decision ordering Gringo to pay Chika P50,000.00 plus legal
interest. During its pendency of the appeal before the RTC, Gringo died of acute
hemorrhagic pancreatitis. Atty. Perfecto, counsel of Gringo, filed a manifestation attaching
the death certificate of Gringo and informing the RTC that he cannot substitute the heirs
since Gringo did not disclose any information on his family. As counsel for Chika, what
remedy can you recommend to your client so the case can move forward and she can
eventually recover her money? Explain. (5%)

SUGGESTED ANSWER: The remedy I can recommend to my client Chika is to file a petition for
settlement of the estate of Gringo and for the appointment of an administrator. Chika as a creditor is an
interested person who can file the petition for settlement of Gringo’s estate. Once the administrator is
 appointed, I will move that the administrator be substituted as the defendant. I will also file my claim
against Gringo as a contingent claim in the probate proceedings pursuant to Rule 86 of the Rules of Court.

XXIV. Dominic was appointed special administrator of the Estate of Dakota Dragon. Delton,
husband of Dakota, together with their five (5) children, opposed the appointment of
Dominic claiming that he was just a stepbrother of Dakota. After giving Dominic the chance
to comment, the court issued an Order affirming the appointment of Dominic.

What is the remedy available to the oppositors?

SUGGESTED ANSWER: The oppositors may file a petition for certiorari under Rule 65 of the Rules of
Court.

Rule 65, Section 1 of the Rules of Court provides that a verified petition for certiorari may be filed:

1. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or
in excess of his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction;
and

2. When there is neither appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law.

Rule 41, Section 1 of the Rules of Court provides no appeal may be taken from an interlocutory order.

The Supreme Court has repeatedly decided that the appointment and removal of a special administrator
are interlocutory proceedings incidental to the main case, and lie in the sound discretion of the court. The
judge or court has discretion in the selection of the person to be appointed as special administrator,
discretion which must be sound, that is, not whimsical or contrary to reason, justice or equity (Roxas v.
Pecson).

Since the order of appointment of Dominic as special administrator is interlocutory where an ordinary
appeal is not a proper recourse, and lies within the discretion of the court, such order may be assailed by
the heirs of Dakota (herein oppositors) through a petition for certiorari under Rule 65 of the Rules of
Court.

Relevant case: Ocampo v. Ocampo (G.R. No. 193161)