lOMoARcPSD|4336240

Special Proceeding Festin

Juris Doctor (National University Philippines)

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SPECIAL PROCEEDING
RULE 72
(BAR Q 1996, 1998, 2008, 2012)
Special Proceeding is an application to
establish the status or right of a party or a
particular fact or any remedy other than an
ordinary suit in a court of justice.
Bar Q (2012)
Which of the following is not a Special
Proceeding?
a. Absentees
b. Escheat
c. Change of First Name
d. Constitution of Family Home
Bar Q (1996, 1998)
Distinguish Civil Action from Special
Proceeding.
Suggested Answer.
1. A Special Proceeding under the same
rule provides that it is a remedy by
which a party seeks to establish a
status, a right or a particular fact.
Pursuant to Section 3 Rule 1 of the
1997 Rules of Civil Procedure, a civil
action is one by which a party sues
another for the enforcement or
protection of a right, or the prevention
or redress of a wrong.
2. Unlike actions, a special proceeding is
generally commenced by application,
petition or special form of pleading as
may be provided for by the particular
rule or law.
3. In special proceedings, it does not pray
for affirmative relief for injury arising
from a party’s wrongful act or
omission nor state a cause of action
that can be enforced against any
person.
Doctrine: Unlike a civil action which has
definite adverse parties, a special proceeding
has no definite adverse party. (Montañer, et
al vs Shari’a District Court, GR 17975,
[2009])
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General Rule: The determination of who are
the legal heirs of the deceased must be made
in the proper special proceedings in court,
and not in an ordinary suit for recovery of
ownership and possession of property and
must take precedence over the action for
recovery of possession and ownership.
Exception: When the parties in the civil case
had voluntarily submitted the issue to the
trial court and already presented their
evidence regarding the issue of heirship, and
the RTC had consequently rendered
judgment thereon, or when a special
proceeding had been instituted but had been
finally closed and terminated, and hence
cannot be re-opened. (Heirs of Yipon vs
Ricaforte, GR 198680, July 8, 2013)
A petition for Liquidation of an Insolvent
Corporation should be classified as a special
proceeding and not as an ordinary action
since it does not seek the enforcement or
protection of a right nor the prevention or
redress of a wrong against a party. It does
not pray for affirmative relief for injury
arising from a party’s wrongful act or
omission nor state a cause of action that can
be enforced against any person. (Pacific
Banking Corporation Employees
Organization vs CA, 242 SCRA 492 [1995])
Doctrine: A proceeding before the Shari’a
District Court for the settlement of the estate
is deemed a special proceeding. (Montañer,
et al vs Shari’a District Court, GR 17975,
[2009])
Principle: In the absence of special
provisions, the rules provided for in ordinary
actions shall be, as far as practicable,
applicable in special proceedings. (Sec 2, Rule
72 ROC)
Bar Q (2008)
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
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SPECIAL PROCEEDING

country. On his part, the heir/oppositor - Municipal Trial Court (does not
served written interrogatories to the exceed P400,000.00)
administrator preparatory to presenting - RTC (exceeds P400,000.00)
the latter as a witness. The administrator  Outside Metro Manila
objected, insisting that the modes of - MTC (gross value of the estate does
discovery apply only to ordinary civil not exceed P300,000.00 beginning
actions, not special proceedings. Rule on April 16, 2004
the matter.

Suggested Answer. Venue

I will deny the objection raised by the - Residence of the Decedent at the time
administrator. Under Section 2 of Rule 72, of his death is determinative of the
in the absence of special provisions, the venue of the proceeding.
rules provided for in ordinary actions shall - If non-resident of the Philippines, any
be, as far as practicable, applicable in province in which he had estate.
special proceedings. Hence, the provisions
on modes of discovery under the Rules of Resides
Court shall apply to special proceedings. - Personal, actual or physical
habitation of a person actual
Doctrine: Provisions of the Rules of Court residence of place of abode.
requiring a certification of non-forum - Residence requires bodily presence as
shopping for complaints and initiatory an inhabitant in a given place, while
pleadings, a written explanation for non- domicile requires bodily presence in
personal service and filing, and the payment that particular place and also an
of filing fees for money claims against an intention is required to make one’s
estate would not in any way obstruct probate domicile. (Garcia Fule vs CA, 74 SCRA
proceedings, thus, they are applicable to 189)
special proceedings such as the settlement of
estate of a deceased person. (Sheker vs Consequences when a will is later
Estate of Alice O Sheker, GR 157912 [2007]) discovered.
- The intestate already commenced
Doctrine: Notwithstanding Section 2 of Rule should be discontinued and a new
72v, Intervention as set forth under Rule 19 proceeding under a separate number
does not extend to creditors of a decedent and title should be constituted is
whose credit is based on contingent claim. entirely a matter of form and lies
(Hidalgo, et al vs CA, GR 164108 [2009]) within the sound discretion of the
court. (Reynoso vs Santiago, 85 Phil
RULE 73 268)
(BAR Q 2003, 2005, 2009) - The intestate case should be
consolidated with the testate
 Special Proceeding relative to the proceeding and the judge assigned to
settlement of estate of a deceased person the testate proceeding should
may either be estate or intestate. continue hearing the two cases.
 Claims against deceased persons should (Roberts vs Leonidas, 129 SCRA 33)
be filed during the settlement - If in the course of the intestate
proceedings of their estate. proceedings, it is found that the
decedent had left a will, proceedings
Court’s Jurisdiction over Probate for the probate of the latter should
Proceeding (RA 7691) replace the intestate proceedings
 (Metro Manila) even an administrator had already

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SPECIAL PROCEEDING
been appointed. (Uriate vs CFI of
Negros, 33 SCRA 252)
Nature of Settlement of Estate
Proceedings.
- In rem which is binding against the
whole world.
- All persons having interest in the
subject matter involved, whether
they were notified or not, are equally
bond. (Philippine Savings Bank vs
Lantin, 124 SCRA 483)
When Notarial Will is Contested
- All the subscribing witnesses, and the
notary in the case of wills executed
under the Civil Cod, if present in the
Philippines and not insane, must be
produced and examined, and the
death, absence, or insanity of any of
them must be satisfactorily shown to
the court. (Section 11, Rule 76)
Doctrine: A testament may not be
disallowed just because the attesting
witnesses declare against its due execution;
neither does it have to be necessarily allowed
just because all attesting witnesses declare in
favor of its legalization. (Baltazar vs Laxa,
GR 174489 [2012])
When Holographic Will is Contested
- The law requires three witnesses to
declare that the will was in the
handwriting of the deceased. (par 2,
Section 11, Rule 76)
- In the absence of any competent
witness, and if the court deemed it
necessary, expert testimony may be
resorted to. (par 2, Section 11, Rule
76)
General Rule: The probate court cannot
issue writs of execution because its order
usually refers to the adjudication of claims
against the estate which the executor or
administrator may satisfy without the need
of executor processes.
Exceptions:
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1. To satisfy the contributive shares of
the devisees, legatees and heirs on
possession of the decedent’s assets.
(Section 6, Rule 88)
2. To enforce payment of the expenses
of partition. (Section 3, Rule 90)
3. To satisfy the cost when a person is
cited for examination in probate
proceedings. (Section 13, Rule 13)
Bar Q (2005)
State the Rule on venue in judicial
settlement od estate of deceased person.
Suggested Answer.
Rule 73 of the Rules of Court expressly
declares that if the decedent is an
inhabitant of the Philippines at the time of
his death, whether a citizen or an alien, his
will shall be proved, or letters of
administration granted, and his estate
settled, in the Regional Trial Court in the
province in which he resides at the time of
his death, and if he is an inhabitant of a
foreign country, the Regional Trial Court
of any province in which he had estate.
The court first taking cognizance of the
settlement of the estate if the decedent,
shall exercise jurisdiction to the exclusion
of all other courts.
In case the marriage is dissolved by the
death of the husband or wife, section 2 of
the said rule provides that 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.
Bar Q (2003)
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 venue, should probate proceeding on
the estate of A be instituted.
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Suggested Answer.
The MTC of Malolos, Bulacan has
jurisdiction of the probate proceeding on
the estate of A taking into account the
amount of the estate involved valued at
P200,000.00 (Section 33, BP 129 as
amended, Section 1 ROC and RA 7691).
Venue is in Bulacan as A is a resident of
Malolos, Bulacan at the time of his death.
Related Provisions to Section 4, Rule 73
Presumption of death – For purposes of
settlement of his estate, a person shall be
presumed dead if absent and unheard from
for the periods fixed in the Civil Code. But if
such person proves to be alive, he shall be
entitled to the balance of his estate after
payment of all his debts. The balance may be
recovered by motion in the same proceeding.
Article 390. After an absence of seven years,
it being unknown whether or not the
absentee still lives, he shall be presumed dead
for all purposes, except for succession.
The absentee shall not be presumed dead
for the purpose of opening his succession till
after an absence of ten years. If he disappears
after the age of seventy-five years, an
absence of five years shall be sufficient in
order that his succession may be opened.
Article 391. The following shall be
presumed dead for all purposes, including the
division of the estate among the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an aeroplane
which is missing, who has not been
heard of four years since the loss of
the vessel or aeroplane;
(2) A person in the armed forces who has
taken part in war, and has been
missing for four years;
(3) A person who has been in danger of
death under other circumstances and
his existence has not been known for
four years.
Article 392. If the absentee appears, or
without appearing his existence is proved, he
shall recover his property in the condition in
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which it may be found, and the price of any
property that may have been alienated or the
property acquired therewith; but he cannot
claim either fruits or rent.
Bar Q (2009)
Frank and Gina were married on June 12,
1987 in Manila. Barely a year after the
wedding, Frank exhibited a violent
temperament, forcing Gina, for reasons of
personal safety, to live with her parents. A
year thereafter, Gina found employment as
a domestic helper in Singapore, where she
worked for ten consecutive years. All the
time she was abroad, Gina had absolutely
no communications with Frank, nor did
she hear any news about him. While in
Singapore, Gina met and fell in love with
Willie.
On July 4, 2007, Gina filed a petition with
the RTC of Manila to declare Frank
presumptively dead, so that she could
marry Willie. The RTC granted Gina's
petition. The Office of the Solicitor General
(OSG) filed a Notice of Appeal with the
RTC, stating that it was appealing the
decision to the Court of Appeals on
questions of fact and law.
Is a petition for Declaration of
Presumptive Death a special proceeding?
Why or why not?
Suggested Answer.
A petition for declaration of presumptive
death is not included in the enumerations
falling as a subject matter of a special
proceeding under Section 1 or rule 72.
Such petition under Article 41 if the
Family Code is a summary proceeding for
the purpose of remarriage of the present
spouse. However, it is in a nature of a
special proceeding because it is an
application that seeks to establish a status
or a particular fact.
Principle: Partition is inappropriate when
there remains an issue as to the expenses
chargeable to the estate.
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In estate settlement proceedings, there is a Doctrine: The petition for letters of

proper procedure for the accounting of all
expenses for which the estate must answer. If
there is any consolation at all to petitioner,
their heirs or distributes of the properties
may take possession thereof even before the
settlement of accounts, as long as they first
file a bond conditioned on the payment of the
estate’s obligations.
administration of the estate of a decedent
should be filed in the RTC of the province
where the decedent resides at the time of his
death. (Section 1, Rule 73)
Doctrine: Residence rather than domicile is
the significant factor in determining venue
(Section 1, Rule 73)

SUMMARY JURISDICTION AND VENUE

Kinds of Special Proceeding Jurisdiction and Venue
Settlement of Estate (Rule 73) 1. RTC or MTC (depending on the gross value
of the estate) of the province where the
deceased last resided)
2. In case the decedent is a non-resident of the
Philippines at the time of his death, venue
lies in any province in which he had an
estate.
Escheat (Rule 91) 1. RTC of province where the deceased last
resided.
2. In case the decedent is a non-resident of the
Philippines at the time of his death, venue
lies in any province in which he had an
estate.
Guardianship 1. Family Court of province or city where the
a. Rule on Guardianship on Minors (AM 03- minor actually resides.
02-05-SC) 2. If the minor resides in a foreign country, in
the Family Court of the province or city
where his property or any part thereof is
situated.
b. Guardianship over incompetent persons 1. RTC of the province or city where
who are not minors under the Rules of incompetent person last resided.
Court (Rules 92-97) 2. If the incompetent person resides in a
foreign country, in the Family Court of the
province or city where his property or any
part thereof is situated.
Rules of Adoption (AM 02-6-02-SC) 1. Family Court of province or city where the
a. If filed under the Domestic Adoption Act prospective adoptive parents reside.
(RA 8552) 2. If the petition is for Rescission of Adoption
by the Adoptee – Family Court of the city or
province where the adoptee resides.
(Section 19)
b. If filed under the Inter-Country Adoption 1. Family Court having jurisdiction over the
Act (RA 8043) place where the child resides or may be
found (filed by a foreign national or Filipino
Citizen permanently residing abroad).
2. It may be filed directly with the Inter-
Country Adoption Board.
Habeas Corpus 1. If filed with RTC, where the person is

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SPECIAL PROCEEDING

a. Habeas Corpus for illegal confinement or detained. SC, CA and RTC have concurrent
detention (Rule 102) jurisdiction.

*the writ of habeas corpus issued by the RTC

shall be enforceable only within its judicial
region (Section 21, BP 129)
b. Habeas Corpus for Custody of Minors (AM 1. Family courts have exclusive jurisdiction
03-04-04 SC (Family Courts Act of 1997, [RA 7309]).
2. Under the Rule on Custody of Minors and
Writ of Habeas Corpus in relation to
Custody of Minors (AM 03-04-04-SC), the
petition may be filed with SC, CA or any of
its members, and, if so granted, the writ
shall be enforceable anywhere in the
Philippines.
Amparo (AM 07-9-12-SC) SC, CA and Sandiganbayan, RTC
If the RTC, the place where the threat, act or
omission was committed or any of its element
occurred. (Section3)
Habeas Data (AM 08-1-16-SC) SC, CA and Sandiganbayan when the action
concerns public data or files of government
offices
If with the RTC:
1. Where the petitioner resides; or
2. Where the respondent resides; or
3. That which has jurisdiction over the
place where data or information is
gathered, collected, or stored, at the
option of petitioner. (Section 3)
Change of Name (Rule 103) RTC of the province where the petitioner
resides. (Section 1)
Absentees (Rule 107) RTC of place where absentee resides before his
disappearance. (Section 1)
Cancellation or Correction of Entries (Rule RTC of the province where the corresponding
108) Local Civil Registrar of place is located.
(Section 1)
The Clerical Error Act (RA 9048) 1. Local Civil Registry office of the city or
municipality where the record being sought
to be corrected or changed is kept;
2. Local Civil Registrar of the place where the
interested party is presently residing or
domiciled;
3. Philippine Consulates

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