9 April 2021
May compulsory heirs in a probate proceeding be declared in default by courts similar to regular court proceedings?
The Supreme Court, in the recent case of Migdonio Racca and Miam Racca v. Maria Lolita Echague (G.R. No. 237133, January 20, 2021) answered this question in the negative.
In said case, Echague filed a Petition for the allowance of the will of the late Amparo Ferido Racca (Amparo) and issuance of letters testamentary in her favor. Migdonio and Miam Racca (heirs), on the other hand, are the surviving spouse and daughter of Amparo, who were also impleaded in the Petition as Amparo’s known heirs.
After finding the petition sufficient in form and substance, a hearing was held where the heirs of Amparo failed to appear. On this basis, the RTC declared the heirs in default pursuant to Rule 9 of the Rules of Civil Procedure. Despite the heirs’ motion to lift the declaration in default, the RTC denied the motion arguing that the jurisdictional requirement of publication and posting were complied with by Echague.
The Supreme Court ruled otherwise and in favor of the heirs. In its decision, the High Court emphasized that an order of general default under Section 3, Rule 9 of the Rules of Civil Procedure does not apply in probate proceedings:
“However, Sec. 3, Rule 9 does not apply in probate proceedings. A careful reading of Sec. 3 reveals that an order of default avails only in litigious proceedings. Thus, it cannot validly be issued in a special proceeding such as the probate of a will.”
The Supreme Court also reiterated its previous decision in the case of Riera v. Palmaroli (40 Phil 105, 1919) where it ruled that “proceeding to probate a will is not a contentious litigation in any sense, because nobody is impleaded or served with process. It is a special proceeding and although notice of the application is published, nobody is bound to appear and no order for judgment by default is ever entered.”
Moreover, the High Court emphasized that Rule 76 of the Rules of Civil Procedure does not provide for the issuance of a default order in the absence of persons contesting the will. Instead, Section 5 thereof only directs the courts to grant allowance of the will based on the testimony of one of the subscribing witnesses that the will was executed as required by law, in case of notarial will, or that the will and the signature are in the handwriting of the testator, in case of holographic will.
Thus, without any legal basis, the Supreme Court ruled that the RTC erred in declaring the compulsory heirs of Amparo in default.
On the issue of whether publication will suffice in lieu of the personal notice to the heirs, the Supreme Court ruled that personal notice to the designated and known heirs, devisees and legatees is a mandatory requirement under Section 4, Rule 76 if their places of residence in the Philippines are known. The use of the word “shall” under said Section 4 of Rule 76 affirms the mandatory nature of such personal notice. Thus, mere publication of the notice of hearing is not sufficient to comply with the mandatory requirement of serving personal notices to the known heirs.
Allow me by the way to greet everyone Happy Easter. May the message of Easter continue to give us hope and trust in God’s providence. After Good Friday comes Easter.
All our trials and difficulties will soon pass.
First published on The Daily Tribune.
For further information, please contact:
Nilo T. Divina, Managing Partner, DivinaLaw
nilo.divina@divinalaw.com
