Defective notice

A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison - The Philippine Star

This case is about the probate or allowance of a Last Will and Testament. The main issue resolved and answered in this case is whether the publication of the notice of hearing to the heirs is sufficient.

The case involves the Last Will and Testament executed by Aurora, five years before she died. Aurora is married to Mike and they have one daughter Mila. Two years after Aurora died, Lita, who is the alleged executor of the will designated by Aurora, filed before the Regional Trial Court (RTC) a Petition for the Allowance of said will and issuance of letters testamentary in her favor. Lita alleged that in the said notarized will, Aurora bequeathed an undivided portion of a parcel of land consisting of one-fourth (1/4) of her estate, or 412.5 square meters, in favor of her grandnephew, Larry. Aurora also named Mike and Mila as her known heirs.

Finding the Petition sufficient in form and substance, the RTC issued an order setting the case for hearing with a corresponding Notice of Hearing on a fixed date. Said order was posted and published in a newspaper of general circulation.

The hearing proceeded as scheduled but Mike and Mila failed to appear, thus prompting the RTC to declare them in default. So, Mike and Mila filed a Motion to Lift the Order of Default, alleging that Mike received a copy of the notice of hearing only two days before the scheduled date and since he was already of advanced age, being 78 years old and not in perfect health, he could not immediately act on the notice within such a short period to protect their interest. Mila, on the other hand, did not receive any notice. Due to their ignorance of the procedural rules and financial constraints, they said that they were not immediately able to secure a counsel to represent their interest.

The RTC, however, denied the motion of Mike and Mila. It held that the jurisdictional requirements of publication and posting of the notices had been substantially complied with. Mike and Mila filed a Motion for Reconsideration, contending that being compulsory heirs, they have an interest in the probate of the will and there are clear grounds to question it, such as the mental condition of Aurora when she executed the will and the property bequeathed to Larry was a conjugal property. The RTC, however, still denied Mike and Mila’s Motion for Reconsideration. Was the RTC correct?

The Supreme Court (SC) on a Petition for Review filed by Mika and Mila, ruled that the RTC is not correct. Under Section 4, Rule 76 of the Rules of Court, personal notice of the time and place of hearing for the probate of the will must be given to the designated and known heirs, legatees and devisees residing in the Philippines at their known addresses. This was not complied with in this case. The language of Section 4, which used the word “shall”, means that it is mandatory and compulsory to cause copies of the notice of the date and time of the hearing be furnished to the known and designated heirs, legatees and devisees in order to safeguard their right to due process of law.

Under Section 4, Rule 76, personal notice must either be (1) deposited in the post office with the postage thereon prepaid at least 20 days before the hearing; or (2) personally served at least 10 days before the day of hearing. In the case of Mike, there was no evidence that the notice addressed to him was deposited in the post office at least 20 days before the day of hearing. Even assuming that the notice was personally served, the same was not in substantial compliance with the rule because he received a copy only two days before the hearing. Moreover, it cannot be expected that Mike, an ailing 78-year-old who is not knowledgeable of legal procedure, could intelligently and promptly act upon receipt of such notice.

The RTC therefore committed a reversible error in entering an order of default against Mike and Mila. The requirement of personal notice of hearing to the known heirs is mandatory and cannot be satisfied by mere publication. This is the ruling in Racca and Racca vs.Echague, G.R. 237133, Jan. 20, 2021.

*      *      *

Email: [email protected]


  • Latest
  • Trending
Are you sure you want to log out?

Philstar.com is one of the most vibrant, opinionated, discerning communities of readers on cyberspace. With your meaningful insights, help shape the stories that can shape the country. Sign up now!

or sign in with