Senate impeachment rules in Chief Justice Corona’s trial (Plain English / Plain Language revisions)

What is Plain Language?

Related posts: Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines Plain Language revisions: DSWD Travel Clearance for Minors Plain Language revisions: Public Attorney’s Office guidelines Plain Language revisions: PVAO educational benefits Plain Language revisions: RA 9994 Expanded rights of senior citizens Plain Language revisions: PDIC notice to Banco Filipino depositors Plain Language revisions: BSP Circular No. 702, Series of 2010 on protection of credit card holders Plain Language revisions: DepEd Order No. 88 s. 2010

Before the start of Ombudsman Merceditas Gutierrez’s impeachment trial several months ago, Senator Miriam Defensor-Santiago stated in media interviews that the Senate “Rules Of Procedure On Impeachment Trials” should be written in plain language. Sen. Santiago said this was necessary for the public to understand the rules and because not all senators were lawyers.

Among other things, Sen. Santiago said that needless words (like “hereinunder”) must be omitted. She also said that the rules used old-fashioned English. Sadly, Sen. Santiago’s suggestions were not followed.

(Sen. Santiago is the author of two bills that require health insurance documents and all government communications, except regulations, to be written in plain language.)

With all due respect for the Senate, I am posting these Before and After revisions of its Rules of Impeachment (1) for the benefit of millions of Filipinos who are expected to follow on TV and radio the impeachment trial of Chief Justice Renato Corona starting January 2012; and (2) to show what the impeachment rules could look like when written in Plain Language.

If there are discrepancies between the official Senate rules of procedure and my revisions, you must follow the official Senate rules.

Before	After
I. When the Senate receives articles of impeachment pursuant to Article XI, Sections 2 and 3 of the Constitution, the President of the Senate shall inform the House of Representatives that the Senate shall take proper order on the subject of impeachment and shall be ready to receive the prosecutors on such time and date as the Senate may specify.	I. When the Senate receives articles of impeachment under Article XI, Sections 2 and 3 of the Constitution, the Senate President must inform the House of Representatives that the Senate will take proper order on the subject of impeachment and will be ready to receive the prosecutors on the time and date the Senate will specify.

Vague expression: What does “take proper order on the subject of impeachment” mean?

“Pursuant to” is legalese; it’s better to use “under” or “in accordance with” as Martin Cutts suggests in his “Plain English Lexicon.”

The word “shall” is repeatedly used in the Senate Rules of Impeachment. As Prof. Joseph Kimble has observed, the meaning of “shall” is ambiguous, changing from sentence to sentence. US courts have ruled that “shall” can mean (1) has a duty to; (2) should; (3) is; (4) will; or (5) may. To avoid this ambiguity, the US Federal Rules of Civil Procedure now use should, may, or must instead of “shall,” except in the rule on summary judgment (Michigan Bar Journal, December 2007). In these revisions, I replaced “shall” with what the context called for.

Before

After

II. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside but shall not vote. Notice shall be given to him by the President of the Senate of the time and place fixed for the consideration of the articles of impeachment, with a request to attend. The Chief Justice shall be administered the oath or affirmation, prescribed under these Rules, by the President of the Senate and shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached. The President of the Senate shall preside in all other cases of impeachment and, for that purpose, placed under the prescribed oath or affirmation by any person authorized by law to administer an oath.

II. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court will preside but cannot vote. The Senate President must notify the Chief Justice of the time and place fixed for considering the articles of impeachment and request him or her to attend. The Senate President must administer the oath or affirmation prescribed under these Rules to the Chief Justice. The Chief Justice must preside over the Senate during the consideration of the articles of impeachment and the trial. The Senate President must preside in all other cases of impeachment. He or she must be placed under the prescribed oath or affirmation by any person authorized by law to administer an oath.

Question: What exactly is involved in “considering” the articles of impeachment? The words “consideration,” “considering,” and “consider” are used several times in the impeachment rules. Does “considering the articles of impeachment” refer only to that stage when the senators took their oath and ordered the issuance of the summons for Chief Justice Corona? Or does it refer to the whole impeachment trial? The phrase “shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached” seems to indicate that there are two different stages. But Rule III says that the Senate must continue in session until it has rendered final judgment; this seems to indicate that these are not different stages.

Passive voice: “Notice shall be given to him by the President of the Senate of the time and place fixed for the consideration of the articles of impeachment, with a request to attend.” I changed most passive voice sentences into the active voice. For example, this sentence became “The Senate President must notify the Chief Justice of the time and place fixed for considering the articles of impeachment and request him or her to attend.”

Before

After

III. Before proceeding to the consideration of the articles of impeachment, the Presiding Officer shall administer the prescribed oath or affirmation to the Members of the Senate then present and to the other Members of the Senate as they shall appear, whose duty it shall be to take the same. Upon presentation of the articles to the Senate, the Senate shall specify the date and time for the consideration of such articles. Unless the Senate provides otherwise, it shall continue in session from day to day (except Saturdays, Sundays, and nonworking holidays) until final judgment shall be rendered, and so much longer as may, in its judgment, be necessary. Senators shall observe political neutrality during the course of the impeachment trial. “Political neutrality” shall be defined as exercise of public official’s duty without unfair discrimination and regardless of party affiliation or preference.

III. Before the Senate considers the articles of impeachment, the Presiding Officer must administer the prescribed oath or affirmation to the senators. All senators must take the oath or affirmation before they can participate in the impeachment proceedings. Upon presentation of the articles to the Senate, it must specify the date and time to consider the articles. Unless the Senate provides otherwise, it must continue in session from day to day (except Saturdays, Sundays, and nonworking holidays) until it has rendered final judgment, or beyond if necessary. Senators must observe political neutrality during the course of the impeachment trial. “Political neutrality” is the exercise of a public official’s duty without unfair discrimination and regardless of party affiliation or preference.

The phrase “Before proceeding to the consideration of the articles of impeachment” at the beginning of this Rule is a misplaced modifier. It appears that it is only the Presiding Officer (or the Senate President in this case) who will consider the articles of impeachment, not the whole Senate. I changed the phrase into the active voice: “Before the Senate considers the articles of impeachment”. (Again the question pops up, what does “consideration” or “consider” mean?)

The second paragraph states “Upon presentation of the articles to the Senate.” Who makes the presentation to the Senate? The Presiding Officer?

The words “same,” “said,” and “such” should not be used as modifiers or as pronouns because they are vague. Bryan A. Garner, editor in chief of Black’s Law Dictionary, includes these words in his Dirty Dozen list. In the impeachment rules “same” as a pronoun is used five times; “said” is used seventeen times; and “such” is used nineteen times. (Please see the table below listing the various times “same,” “said,” and “such” are used in the impeachment rules.)

On the word “same,” Garner says:

Many lawyers use “same” as a pronoun because they think they are being precise. For example: “Once the indemnitee receives such notice, the indemnitee shall acknowledge same.” Use “it” instead of “same” (“it” is not less precise).

Ordinary pronouns are better than “same” because they differentiate singular from plural – “same” doesn’t.

On the word “such,” Garner explains:

“Such” is inherently ambiguous. To the educated non-lawyer, it means “of that kind”. To the lawyer, it means “the very one just mentioned”. “Such” can oftentimes be replaced by “the”.

On the word “said,” Scott P. Stolley in Michigan Bar Journal, August 2003 clarifies:

It is a crutch word that lends awkwardness, not precision. There is no need to say ‘‘To the Honorable Judge of Said Court.’’ Just say ‘‘To the Honorable Court.’ Don’t say: ‘‘The said witness saw the said defendant run the light.’’ Simply say ‘‘The witness saw the defendant run the light.’’

Rule III should instead have been devoted strictly to matters like (1) organizing the Senate into an impeachment court; (2) taking by the senators of their oath or affirmation; (3) issuing the summons; and (4) political neutrality.

Question: After the trial, if the Senate votes to remove Chief Justice Corona from his office, how will its judgment be executed? The Senate impeachment rules do not have any provision on the execution of judgment.

Before	After
IV. The Presiding Officer shall have the power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, and writs authorized by these Rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.	IV. The Presiding Officer, by himself or by the Secretary of the Senate, has the power to issue and enforce all orders, mandates, writs, regulations, and orders authorized by these Rules or by the Senate.

Redundant expressions: (1) “make and issue”; (2) “make and enforce”; and (3) “authorize or provide.”

Before

After

V. The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, mandates, writs, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice. And the Sergeant-at-Arms of the Senate, under the direction of the President of the Senate, may employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, and writs of the Senate.

V. The Senate has the power to: compel witnesses to attend; enforce obedience to its orders, mandates, writs, and judgments; preserve order; punish in a summary way contempt of, or disobedience to, its authority, orders, mandates, writs, or judgments; and make all orders, rules, and regulations it may consider essential to the ends of justice. The Sergeant-at-Arms of the Senate, as directed by the Senate President, may employ the aid of government agencies in enforcing the orders, mandates, and writs of the Senate.

Redundant expressions: “aid and assistance,” “enforce, execute, and carry into effect,” “essential or conducive.”

Vague: “Sergeant-at-Arms of the Senate, under the direction of the President of the Senate, may employ such aid and assistance”. Aid and assistance from whom or from where?

The first sentence of Rule V has about 60 plus words. I broke up this long sentence into a vertical list. Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, August 2007):

“The vertical list is one of the drafter’s—and reader’s—best friends. Probably no other technique is more useful for organizing complex information, breaking it down into manageable chunks, avoiding repetition, and preventing ambiguity.”

This Rule incorrectly uses the word “deem.” Garner in his book on language and writing says that “the word deem should create a legal fiction, not state a truth.” In “Synthesis: Legal Reading, Reasoning and Writing in Canada” (by Margaret Elizabeth McCallum, Christina L. Kunz, Deborah A. Schmedem), the authors recommend:

Avoid use of the term “to deem” as a substitute for “to think” or “to consider”. The word means “to treat [a thing] as being something that it is not, or possessing certain qualities it does not possess”. In this technical sense, “deem” is used in statutes to create a legal fiction; for example, a statute that requires applications to be originals signed by the applicant may provide that faxed applications will be deemed to be originals.

The phrase “all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice” incorrectly uses the relative pronoun “which” instead of “that.” In formal American English, “that” is used for restrictive clauses while “which” (surrounded by commas) is used for non-restrictive clauses. A clause is non-restrictive if it merely provides additional information and can be removed without changing the meaning. In British English, there is no distinction between “that” and “which.” Most Filipinos, unaware of the difference between restrictive and non-restrictive clauses, use “which” instead of “that.” (I have also made this mistake on several occasions.) But to achieve precision in government communications, we must follow the American English distinction between the relative pronouns “that” and “which.” (Please read Jose Carillo’s English Forum article “Learning to use the relative pronouns confidently.”)

Before

After

VI. The President of the Senate or the Chief Justice when presiding on the trial may rule on all questions of evidence including, but not limited to, questions of materiality, relevancy, competency or admissibility of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed; or the Presiding Officer may at his/her option, in the first instance, submit any such question to a vote of the Members of the Senate. The motion for a vote and the contrary opinion shall not take more than two (2) minutes each, with a one minute rebuttal allowed for the proponent of the motion. The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable.

VI. The Presiding Officer may rule on: questions of evidence such as materiality, relevancy, competency or admissibility; and incidental questions. The ruling will stand as the judgment of the Senate. But if a senator asks that a formal vote be taken on the ruling, the Presiding Officer must submit the ruling for the Senate’s decision, after one contrary opinion has been expressed. The motion for a vote and the contrary opinion must not take more than two minutes each, with a one minute rebuttal allowed for the motion’s proponent. Instead of ruling by himself or herself, the Presiding Officer can choose to submit any question for the Senate’s vote. When an issue is not covered by these Rules, the Senate can resort to its Rules and the revised Rules of Court.

The first sentence of Rule VI is an ultra long sentence, with about 100 words. I revised it by dividing it into three sentences, with the first sentence using a vertical list.

The phrase “such as, but not limited to” is legalese and can be changed to “such as” without any negative legal effect.

The word “suppletorily” is jargon. Instead of the sentence “The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable.”, I changed it to “When an issue is not covered by these Rules, the Senate can resort to its Rules and the revised Rules of Court.”

Before

After

VII. Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided, a writ of summons shall be issued to the person impeached, reciting or incorporating said articles, and notifying him/her to appear before the Senate upon a day and at a place to be fixed by the Senate and named in such writ, and to file his/her Answer to said articles of impeachment within a non-extendible period of ten (10) days from receipt thereof; to which the prosecutors may Reply within a non-extendible period of five (5) days therefrom; and to stand to and abide by the orders and judgments of the Senate. Such writ shall be served by such officer or person named in the order thereof, not later than three (3) days prior to the day fixed for such appearance of the person impeached, either by the delivery of an attested copy thereof to the person impeached, or if personal service cannot be done, service of the writ may be made by leaving a copy with a person of sufficient age and discretion at his/her last known address or at his/her office or place of business; and if the service of such writ shall fail the proceedings shall not thereby abate, but further service may be made in such manner as the Senate shall direct. If the person impeached, after service, shall fail to appear, either in person or by counsel, on the day so fixed or, appearing, shall fail to file his answer to such articles of impeachment, the trial shall proceed nevertheless as upon a plea of not guilty. If a plea of guilty shall be entered, judgment may be entered thereon without further proceedings.

VII. The Senate must issue a writ of summons to the person impeached. The writ must: recite or incorporate the articles; notify the person impeached to appear before the Senate on the day and place fixed by the Senate; order the person impeached to file an Answer to the articles within a non-extendible period of ten days from receipt of the summons, with copy furnished to the panel of prosecutors; and order the person impeached to abide with the orders and judgments of the Senate. The officer or person charged with serving the writ must serve it not later than three days before the day fixed for the appearance of the person impeached either by: delivering an attested copy of the writ to the person impeached; or if personal service cannot be done, by leaving the copy with a person of sufficient age and discretion at his or her last known address, office, or place of business. If the writ cannot be served in the ways stated above, the Senate can direct that the summons be served in some other manner. The trial will proceed even if: the person impeached, after due service of the writ, fails to appear either in person or by counsel, on the day fixed in the summons; or the person impeached fails to file his Answer to the articles of impeachment. After the prosecutors have received the Answer, they have a non-extendible period of five days to file their Reply.

This Rule should have been incorporated into Rule III (or placed after it). The phrase “Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided” raises two questions: One, as I have noted before, who presents the articles of impeachment to the Senate? Does presenting the articles refer to the submission of the articles to the Senate by the House of representatives? Or does it refer to the Presiding Officer informing the Senate that the articles have been submitted to it?

Two, “organization of the Senate” into what? Into an impeachment court, of course, but this is not clearly provided. To what Rule does “hereinbefore provided” refer to? As I said above, Rule III should have been clearly devoted to matters like (1) organizing the Senate into an impeachment court; (2) taking by the senators of their oath or affirmation; (3) issuing the summons; and (4) political neutrality.

The sentences in this section are too long. I made them simpler by using numbered lists.

Vague: What does “to stand to ... the orders and judgments of the Senate” mean?

The phrase “prior to” is legalese. As Prof. Kimble suggests, the simpler word “before” should be used instead.

The provisions on (1) the filing of a Reply by the prosecutors and (2) entering of a plea of guilty should have been placed in the other Rules.

Before	After
XII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate.	XII. The Secretary of the Senate must record and report the proceedings in impeachment cases in the same manner as the legislative proceedings of the Senate.

Rule XII is verbose: the word “proceedings” is used three times in a single sentence, and the second part of the sentence (after the word “and”) can easily be incorporated into the first part.

I changed the phrase “in cases of impeachment” to “impeachment cases.” Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, November 2007) says that we should root out unnecessary prepositional phrases and question every of.

Before	After
XIII. Counsel for the parties shall be admitted to appear and be heard upon an impeachment: Provided, That counsel for the prosecutors shall be under the control and supervision of the panel of prosecutors of the House of Representatives.	XIII. The person impeached and the panel of prosecutors of the House of Representatives can be represented by their lawyers. The lawyer for the panel of prosecutors must be under its control and supervision.

The phrase “Counsel for the parties shall be admitted to appear and be heard upon an impeachment” is a formalism. I changed the word “counsel” to the ordinary term “lawyer.”

I removed the proviso (Provided, That ...). Prof. Kimble in his article “Down with Provided That” (Michigan Bar Journal, July 2004) enumerates the criticisms made by legal drafting experts against provisos. Among others, Kimble cites:

[1] Thomas R. Haggard, Legal Drafting in a Nutshell 279 (2d ed. 2003): ‘‘[P]rovided that . . . defies grammatical analysis. Provisos produce single sentences that are often hundreds of words long. Knowledgeable drafters have railed against them for years. Apart from being a grammatical abomination, provided that is ambiguous . . . .’’

[2] David Mellinkoff, Mellinkoff ’s Dictionary of American Legal Usage 520 (1992): ‘‘[The proviso] is one of the horrors of legal writing, in a class with notwithstanding.’’

Before	After
XVI. If a Senator is called as a witness, he/she shall be sworn, and give his/her testimony standing in his/her place.	?

What exactly does “give his/her testimony standing in his/her place” mean? In our trial courts, the witness usually sits beside the judge’s table (so that the judge can clearly hear the testimony and observe the demeanor of the witness). If you remember from the impeachment trial of former President Joseph Estrada, the senator-judges were sitting in one section of the Senate hall and in front of them was a chair reserved for the witness called to testify. The lawyers for President Estrada and the House panel of prosecutors were on opposite sides of the hall, at right angles to where the senator-judges were. Does Rule XVI mean that the senator-witness will not sit down in the place reserved for the testifying witness but instead will testify while standing up in the section of the hall reserved for the senator-judges? This seems to be what Rule XVI is saying because Rule XXI states: “Thereafter, each Senator, as his/her name is called, shall rise in his/her place and answer: guilty or not guilty.”

But what’s the point in requiring the senator called as a witness to stand up while testifying? What if the senator is arthritic and cannot stand up for a long period of time? Will it be a violation of Rule XVI if the senator requests that he or she be allowed to sit down while testifying?

Before

After

XXI. The trial of all the articles of impeachment shall be completed before the Senators vote on the final question on whether or not the impeachment is sustained. On the final question whether the impeachment is sustained, the vote shall be taken on each article of impeachment separately; and if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of all the Members, a judgment of acquittal shall be entered; but if the person impeached in such articles of impeachment shall be convicted upon any of said articles by the votes of two-thirds of all the Members, the Senate shall proceed to pronounce judgment of conviction, and a certified copy of such judgment shall be deposited in the Office of the Secretary of the Senate. A motion to reconsider the vote by which any article of impeachment is sustained or rejected shall not be in order.

XXI. The Senate must complete the trial of all the articles of impeachment before it votes on whether the person impeached is guilty or not. The Senate must vote on each article of impeachment. An affirmative vote of two-thirds of all the senators is necessary to convict the person impeached of any of the articles of impeachment. If the impeachment is not sustained on any of the articles of impeachment, the Senate must render a judgment of acquittal. If the person impeached is convicted on any of the articles of impeachment, the Senate must render a judgment of conviction for that article. A certified copy of the judgment, whether for acquittal or conviction, must be deposited in the Office of the Secretary of the Senate. A motion for reconsideration of the vote on any of the articles of impeachment is not allowed

Redundant expressions: The phrase “on the final question on whether or not the impeachment is sustained” is used twice (first and second sentences). The phrase “by the votes of two-thirds of all the Members” is used twice in the second sentence.

In the clause “the vote shall be taken on each article of impeachment separately,” the adverb “separately” is unnecessary or redundant because of the word “each.“

The second sentence is ultra long with 105 words, and is complex, dealing with several issues (voting on each article; judgment of acquittal; judgment of conviction; two-thirds vote; and deposit of the judgment). I broke up this sentence into five sentences (in four paragraphs).

Rule XXI uses the words “enter” and “pronounce” in connection with “judgment.” I used the word “render” instead.


I will be adding more revisions and refining them as the impeachment proceedings against Chief Justice Corona unfold. If you have your own plain language revisions that can make the Senate rules on impeachment more understandable for the public, please send them to me at gtgalacio@yahoo.com. I am sure that some of you have noticed that the impeachment rules use a lot of nominalizations (verbs turned into nouns). Can you spot the nominalizations or “nouners” as Prof. Kimble calls them?

Same	Said	Such
Rule III whose duty it shall be to take the same. Rule IX the same shall be recorded Rule XII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate. Rule XVIII The same shall likewise apply to the prosecutors, to the person impeached, and to their respective counsel and witnesses. Rule XXIII it being necessary to use the same as testimony.	Rule II during the consideration of said articles Rule VII reciting or incorporating said articles file his/her Answer to said articles of impeachment Rule XI adjournment of the Senate sitting in said trial XXI be convicted upon any of said articles Rule XXIII Presiding Officer of the said Senate the service of said subpoena the said ______ the said ______ the accusations as set forth in said articles the said ________ to answer to the said articles of impeachment Presiding Officer of the said Senate Form of Order to be indorsed on said writ of summons. mentioned in the said writ of summons. mentioned in the said writ of summons. Presiding Officer of the said Senate	Rule I to receive the prosecutors on such time and date Rule III for the consideration of such articles enforce such other regulations and orders employ such aid and assistance Rule VI submit any such question to a vote Rule VII named in such writSuch writ shall be served day fixed for such appearance of the person impeached if the service of such writ shall fail made in such manner as the Senate shall direct answer to such articles of impeachment Rule VIII I have performed such service Rule X at such other hour as the Senate may order Rule XI the Presiding Officer upon such trial Rule XXI the person impeached in such articles of impeachment certified copy of such judgment Rule XXIIIsuch proceedings, examinations, trials, and judgments perform such orders, directions, and judgments Rule XXIV fix a day and hour for resuming such consideration

---

Notes: (1) Please read my post “Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines.” (2) I conduct seminars for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com or text 0927-798-3138 for details. (3) For interactive grammar exercises, please visit my “Better English for everyone” website; I also have interactive quizzes on Plain English / Plain Language. (4) If the tables do not look right, try using Mozilla Firefox or Google Chrome.

Ad cautelam: filing of pleadings and appearing in court to question its jurisdiction or as a precautionary measure

1. Plain English / Plain Language version of “ad cautelam” Instead of “ad cautelam” or “ex abundanti ad cautelam,” lawyers should simply use the phrase “with express reservation on jurisdiction.” (By the speaker on Civil Procedure, from Romulo Mabanta, in an MCLE seminar sponsored by the Quezon City IBP) 2. “Taguig vs. Makati” June 15, 2016, G.R. No. 20839 (Supreme Court ruling on forum shopping, splitting a single cause of action, and ad cautelam pleadings): This case centers on the issue of whether respondent City of Makati engaged in forum shopping in simultaneously pursuing: (1) Petition for Annulment under Rule 47 with the Court of Appeals of the July 8, 2011 Regional Trial Court Decision; and (2) Motion for Reconsideration Ad Cautelam (later Appeal) of the same July 8, 2011 RTC Decision. Makati emphasized that its Motion for Reconsideration and Appeal were mere precautionary measures. Appending the phrase “ad cautelam” to an application for relief does not alter the nature of the remedy being pursued. Had it been granted by the trial court, the Motion for Reconsideration — ad cautelam or otherwise - would have ultimately resulted in the setting aside of the assailed decision.

The Latin term “ad cautelam” can be translated into English as “for security,” “as a precaution,” or “to be on the safe side.” The phrase“ex abundanti ad cautela” means “with extreme caution.”

The Revised Rules of Court do not have a specific provision on ad cautelam. But lawyers have used it in at least two ways:

1. To question a court’s jurisdiction and at the same time be able to file pleadings, lawyers can caption their pleadings as “ad cautelam.”In court hearings, lawyers must inform the judge that they are questioning the court’s jurisdiction;

2. To preserve a party’s remedies, lawyers can file an “ad cautelam” pleading as a precautionary measure .

Using ad cautelam to file pleadings or ask for reliefs while questioning a court’s jurisdiction

1. GMA’s electoral sabotage case before the Pasay City RTC

Lawyers for former President Gloria Macapagal-Arroyo (GMA) have been filing pleadings captioned “ad cautelam” with the Pasay City Regional Trial Court. They are questioning before the Supreme Court the RTC’s jurisdiction over the electoral sabotage case filed by the COMELEC against the former president. But at the same time, they have been asking the RTC for certain reliefs for GMA like hospital arrest, the use of a cellphone and laptop, etc. By captioning their pleadings with ad cautelam, these lawyers are reminding the RTC that they are not accepting its jurisdiction over the case.

2. Does a rehabilitation court have jurisdiction over a partially executed NLRC decision?

Many years ago, I represented a former hotel chef. He had won his NLRC case for back wages against the hotel, and the decision had been partially executed. But the hotel filed for corporate rehabilitation with the Regional Trial Court in Manila, and the judge ordered all parties with money claims against the hotel to file their Answer. Parties who failed to file their Answer could no longer pursue their claims.

If I had filed an Answer for my client, it would have meant that I was accepting the court’s jurisdiction. My theory was that the NLRC had jurisdiction because it was a labor case and its decision had been partially executed. But as a precaution, I filed with the Manila RTC a pleading captioned “Manifestation/Motion ex abundanti ad cautelam”. In the pleading, I stated that while my client was complying with the court’s order, he was questioning its jurisdiction. In layman’s terms, it was better safe than sorry.

Using ad cautelam as a precautionary measure

1. Aguedo F. Agbayani, petitioner, vs. The Commission On Elections And Rafael M. Colet, respondents. G.R. No. 87440-42 June 13, 1990

Agbayani, a Pangasinan gubernatorial candidate, filed pre-proclamation protest cases against his political rival Colet. When Colet was proclaimed as governor, Agbayani filed an election protest. Because of his pending pre-proclamation cases, he captioned his election protest ex abundante ad cautelam. The Comelec, acting on the election protest, required Colet to file a responsive answer. Agbayani then filed a reply, which he also captioned ad cautelam.

The Comelec dismissed Agbayani’s pre-proclamation cases and his motion for reconsideration. It said that the pre-proclamation controversy became moot and academic when Agbayani filed the election protest and his reply, even if they were both captioned ad cautelam.

Agbayani appealed to the Supreme Court. Ruling in his favor, the Court noted that Agbayani filed the election protest ad cautelam (or “for safety’s sake) just in case the Comelec dismissed his pre-proclamation cases. For the upcoming barangay elections, a Comelec resolution provided that all ballot boxes would be used for the barangay elections, unless they were not involved in any pre-proclamation-controversy, election protest, or official investigation. Agbayani thus wanted to preserve all the ballot boxes and their contents so that he could file an election protest later on. The Court said:

As the above-mentioned cases involved only nine precincts, it was only prudent for the petitioner to file his protest ad cautelam in case the pre-proclamation controversy was ultimately dismissed and it became necessary for him to activate his protest. The protest would involve all the precincts in the province. If he had not taken this precaution, an the other ballot boxes would have been emptied and their contents would have been burned and forever lost.

As to Agbayani’s filing of a reply, the Court said:

It was not the fault of the petitioner if the COMELEC decided to give due course to the protest right away even if it was ad cautelam. The protest was at that time only tentative, awaiting the disposition of the pre-proclamation controversy. The petitioner did file a reply to the private respondent’s answer with counter-protest, but it was only to prevent any declaration that he had by his inaction waived, the right to file responsive pleadings. Such a reply did not make the pre-proclamation controversy moot and academic.

Most indicative of the petitioner’s intention is the express reservation he made in the protest ad cautelam itself, where he clearly stated:

As additional precautionary measure, the protestant herein is filing this protest and cautela(m), without withdrawing his petitions in said pre-proclamation controversy, in order to exempt from the provisions of Section 1 of Resolution No. 2035 the precincts hereinafter specified. (Emphasis supplied)

2. Francisco I. Chavez, Petitioner, versus Commission On Elections, Respondent. G. R. No. 105323, July 3, 1992. G. R. No. 105323, July 3, 1992

Former Solicitor General Francisco I. Chavez, a senatorial candidate in the 1992 elections, alleged that he lost at least 1.7 million votes because of a nuisance candidate with the same surname as his. On May 23, 1992, he filed an urgent petition before the Comelec asking it to [1] implement its May 12, 1992 resolution with costs de oficio; [2] to re-open the ballot boxes in 13 provinces including the National Capital Region involving some 80,348 precincts and to scan for the “Chavez” votes for purposes of crediting the same in his favor; [3] make the appropriate entries in the election returns/certificates of canvass; and [4] to suspend the proclamation of the 24 winning candidates.

Dissatisfied with the failure of the Comelec to act on his petition, Chavez filed with the Supreme Court an urgent Petition Ad Cautelam for prohibition and mandamus, with prayer for the issuance of a temporary restraining order, enjoining the Comelec from proclaiming the 24th highest senatorial candidate, without first implementing respondent Comelec’s resolution of May 12, 1992 and acting upon petitioner’s letter/complaint dated May 14, 1992 and urgent petition dated May 22, 1992.

On June 4, 1992, the Supreme Court issued a Temporary Restraining Order enjoining the Comelec from proclaiming the 24th winning senatorial candidate and setting the case for hearing on June 9, 1992. On the same day, Chavez filed a manifestation stating that on May 30, 1992, his urgent petition dated May 22, 1992 was dismissed by the Comelec. He also prayed that the Petition Ad Cautelam be considered a regular petition.

On June 8, 1992, Senator Agapito Aquino (the 24th ranked senator) filed a Motion for Leave to Intervene with Comment in Intervention praying for the dismissal of Chavez’s petition. Sen. Aquino argued that the petition was in the nature of a pre-proclamation controversy, which was not allowed in elections involving senators.

The Supreme Court ruled in Sen. Aquino’s favor, stating that Chavez’s proper recourse is to file a regular election protest which, under the Constitution and the Omnibus Election Code, exclusively pertains to the Senate Electoral Tribunal.

3. Hongkong And Shanghai Banking Corporation Limited, petitioner, vs. Cecilia Diez Catalan, respondent. G.R. No. 159590, October 18, 2004, and HSBC International Trustee Limited, petitioner, vs. Cecilia Diez Catalan, respondent. G.R. No. 15959, October 18, 2004

Sometime in March 1997, Frederick Arthur Thomson (Thomson) issued five HSBANK checks amounting to HK$3,200,000.00, payable to Cecilia Diez Catalan (Catalan). When the checks were deposited, HSBANK returned them purportedly for reason of “payment stopped” pending confirmation, despite the fact that the checks were duly funded.

In January 2001, Catalan filed before the RTC a complaint for a sum of money with damages against HSBANK due to its alleged refusal to pay her the value of the checks issued by Thomson.

In September 2001, Catalan filed an Amended Complaint impleading petitioner HSBC TRUSTEE as co-defendant and invoking Article 19 of the Civil Code as basis for her cause of action. Catalan prayed that HSBANK and HSBC TRUSTEE be ordered to pay Php 20,864,000.00 representing the value of the five checks at the rate of Php 6.52 per HK$1 as of January 29, 2001 for the acts of HSBANK and HSBC TRUSTEE in refusing to pay the amount justly due her, in addition to moral and exemplary damages, attorney’s fees and litigation expenses.

HSBANK filed a motion for extension of time to file an Answer or a motion to dismiss. On October 2, 2001, HSBANK filed a Motion to Dismiss Amended Complaint alleging, among other grounds, that it did not submit to the jurisdiction of the RTC when it filed its motion for extension of time.

On the other hand, HSBC TRUSTEE, without submitting itself to the jurisdiction of the RTC, filed a Special Appearance for Motion to Dismiss Amended Complaint, questioning the jurisdiction of the RTC over it. HSBC TRUSTEE alleged that tender of summons through HSBANK Makati did not confer upon the RTC jurisdiction over it.

On May 15, 2002, the RTC issued an Order denying the two motions to dismiss. HSBANK and HSBC TRUSTEE filed separate motions for reconsideration but both were denied by the RTC in an Order dated December 20, 2002.

On February 21, 2003, Catalan moved to declare HSBANK and HSBC TRUSTEE in default for failure to file their Answer to the amended complaint.

On March 5, 2003, HSBANK and HSBC TRUSTEE filed separate “petitions for certiorari and/or prohibition” with the Court of Appeals (CA).

Subsequently, HSBANK and HSBC TRUSTEE filed before the RTC separate Answers ad cautelam, both dated March 18, 2003, as a “precaution against being declared in default and without prejudice to the separate petitions for certiorari and/or prohibition then pending with the CA”.

Among several grounds for their appeals, HSBANK and HSBC TRUSTEE alleged that the Court of Appeals committed serious error by holding that they had submitted to the jurisdiction of the trial court by filing an Answer to the Amended Complaint.

Issue: Did the RTC acquire jurisdiction over HSBANK and HSBC TRUSTEE when they filed their respective Answers ad cautelam?

The Supreme Court ruled:

Against HSBANK

In favor of HSBC TRUSTEE

The Rules of Court provides that a court generally acquires jurisdiction over a person through either a valid service of summons in the manner required by law or the person’s voluntary appearance in court. HSBANK initially filed a Motion for Extension of Time to File Answer or Motion to Dismiss. HSBANK already invoked the RTC’s jurisdiction over it by praying that its motion for extension of time to file answer or a motion to dismiss be granted. The Court has held that the filing of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the court. Consequently, HSBANK’s expressed reservation in its Answer ad cautelam that it filed the same “as a mere precaution against being declared in default, and without prejudice to the Petition for Certiorari and/or Prohibition xxx now pending before the Court of Appeals” to assail the jurisdiction of the RTC over it is of no moment. Having earlier invoked the jurisdiction of the RTC to secure affirmative relief in its motion for additional time to file answer or motion to dismiss, HSBANK, effectively submitted voluntarily to the jurisdiction of the RTC and is thereby estopped from asserting otherwise, even before this Court.

In contrast, the filing by HSBC TRUSTEE of a motion to dismiss cannot be considered a voluntary submission to the jurisdiction of the RTC. It was a conditional appearance, entered precisely to question the regularity of the service of summons. It is settled that a party who makes a special appearance in court challenging the jurisdiction of said court, e.g., invalidity of the service of summons, cannot be considered to have submitted himself to the jurisdiction of the court. HSBC TRUSTEE has been consistent in all its pleadings in assailing the service of summons and the jurisdiction of the RTC over it. Thus, HSBC TRUSTEE cannot be declared in estoppel when it filed an Answer ad cautelam before the RTC while its petition for certiorari was pending before the CA. Such answer did not render the petition for certiorari before the CA moot and academic. The Answer of HSBC TRUSTEE was only filed to prevent any declaration that it had by its inaction waived the right to file responsive pleadings.

4. “Taguig vs. Makati” June 15, 2016, G.R. No. 20839 (Supreme Court ruling on forum shopping, splitting a single cause of action, and ad cautelam pleadings):

This case centers on the issue of whether respondent City of Makati engaged in forum shopping in simultaneously pursuing:

(1) Petition for Annulment under Rule 47 with the Court of Appeals of the July 8, 2011 Regional Trial Court Decision; and

(2) Motion for Reconsideration Ad Cautelam (later Appeal) of the same July 8, 2011 RTC Decision.

Makati emphasized that its Motion for Reconsideration and Appeal were mere precautionary measures. Appending the phrase “ad cautelam” to an application for relief does not alter the nature of the remedy being pursued. Had it been granted by the trial court, the Motion for Reconsideration — ad cautelam or otherwise - would have ultimately resulted in the setting aside of the assailed decision.

More to come. For now, let me leave you with this quote from Congressman Ronnie Zamora. During the 2005 impeachment deliberations against GMA, Congressman Zamora said that his father told him: “Keep away from lawyers who start their sentences with ex abundanti ad cautela.”

Heirs and inheritance (Part 9): Last will must be probated; Preterition - when a compulsory heir is omitted in a last will

Legal procedures in the probate of a last will: Rule 75 Production of Will; Allowance of Will Necessary Rule 76 Allowance or Disallowance of Will Rule 77 Allowance of Will Proved Outside of Philippines Rule 78 Letters Testamentary and of Administration of Estate Thereunder Rule 79 Opposing Issuance of Letters Testamentary; Petition and Contest for Letters of Administration Rule 80 Special Administrators Rule 81 Bonds of Executors and Administrators Rule 82 Revocation of Administration, Death, Resignation and removal of Executors and Administrators Rule 83 Inventory and Appraisal; Provision for Support of Family Rule 84 General Powers and Duties of Executors and Administrators Rule 85 Accountability and Compensation of Executors and Administrators Rule 86 Claims Against Estate Rule 87 Actions by and against Executors and Administrators Rule 88 Payments of the Debts of the Estate Rule 89 Sales, Mortgages, and Other Encumbrances of Property of Decedent Rule 90 Distribution and Partition of the Estate

Philippine law requires that a will, whether notarial or holographic, must be probated or allowed by a court before it can be given effect. Rule 75 of the Rules of Court states:

Sec. 1. Allowance necessary; Conclusive as to execution. - No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

The Register of Deeds will not transfer the titles of lands to the persons named in the will unless they submit the court order approving the will.

The Regional Trial Court of the place where the testator (the person who executed the last will) died has jurisdiction over the probate of the will.

Within twenty days after knowing of the testator's death, the person who has custody of the will must deliver the will to the court or to the person named in the will as executor. In case of that person’s refusal to deliver the will, the court can impose a fine or order that person’s imprisonment until it is delivered.

Who may petition for the probate of the will?

Section 1 of Rule 76 states:

Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

What if a compulsory heir is omitted in a last will?

This situation leads to what is called in law as “preterition.” It is covered by Articles 854 and 855 of the New Civil Code of the Philippines.

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.

Simply stated, the law protects the right of the omitted compulsory heirs. The heirs can ask the court to annul the institution of heirs in the will. As Article 855 states, their share will be taken first from the so-called free portion; if that is not sufficient to complete their legitimes, the deficiency will be taken proportionally from the shares of the other heirs.

No preterition if compulsory heirs are mentioned in the will but get less than what they are entitled to under the law

Preterition does not occur if the testator mentions the compulsory heirs in the last will but assigns to them an amount less than what they are entitled under the law. In this situation, the disadvantaged heirs can compel the other heirs to contribute until their legitimes are satisfied.

Depriving compulsory heirs of their inheritance

The only way for compulsory heirs to be deprived of their inheritance is through a valid disinheritance. Please read my posts:

• Disinheriting children and descendants, legitimate as well as illegitimate
• Disinheriting your spouse

Heirs and inheritance (Part 8): Do inherited properties belong exclusively to the spouse who inherited them or to both spouses?

Answer: It depends on what system of property relations governs the spouses, whether absolute community of property (ACP), conjugal partnership of gains (CPG), or complete separation of property.

For Filipinos who got married after August 3, 1988 (the date the Family Code of the Philippines became effective), their system is most probably absolute community of property. Why? Because most Filipinos get married without knowing that they can choose their system of property relations.

Under the system of absolute community of property, all properties belonging to the man and woman, at the time of the celebration of their marriage, automatically become part of their community property (see Article 91 of the Family Code). All properties acquired during their marriage are also community property, with certain exceptions under Article 92.

So, assuming that the system of property relations between you and your spouse is absolute community of property (ACP):

If	then
(1) you inherited the property before the marriage …	it is part of the community property, even if: the title to the property still remains in the name of the person from whom you inherited the property; the title to the property has been transferred to your name; or the property remains titled in your name all throughout your marriage.
(2) you inherited the property during the marriage …	it is not part of the community property since it was acquired by gratuitous title as provided under Article 92 of the Family Code; the exception is when the testator (the person who gave you the property through a last will) expressly provided that it will be community property.

Related post: Heirs and inheritance (Part 7): Is property acquired before marriage the exclusive property of each spouse or does it belong to both spouses?

Heirs and inheritance (Part 7): Is property acquired before marriage the exclusive property of each spouse or does it belong to both spouses?

Question: “I got married in 2001; some people in an online forum told me that properties acquired when I was single and titled in my name are still mine. Does my husband have any right to these properties? What will happen to these properties when I die?”

Answers:

1. “I got married in 2001; some people in an online forum told me that properties under my name acquired when I was single are still mine.”

These people are wrong.

Most Filipinos are confused as to whether properties acquired before marriage are the exclusive property of each spouse or belong to both spouses. This confusion can be cleared up by:

• determining what date the marriage was solemnized; if it was solemnized before August 3, 1988, then the applicable law is the New Civil Code of the Philippines, not the Family Code;
  
  
• determining whether the man and woman, before they got married, agreed on a system of property relations that would govern them; if there was no agreement, then for marriages solemnized after August 3, 1988 (date the Family Code became effective), absolute community of property is automatically the system.

The problem is that most Filipinos get married without knowing that they can choose among absolute community of property (ACP), conjugal partnership of gains (CPG), or complete separation of property.

Since you got married in 2001 (and it seems there was no agreement between you and your husband before you got married), then absolute community of property is automatically the system between yourselves. Under Article 91 of the Family Code, upon your marriage, all properties belonging to either you or your husband automatically became part of the community property.

Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.

For example, you bought a subdivision lot while you were single. The lot is titled in your name. At the time you got married, this lot automatically became part of the community property between you and your husband, even if the title remains in your name all throughout your marriage. If you are going to sell this subdivision lot, you will need your husband’s conformity since it has become community property.

Upon your death, this lot will be distributed as follows:

• 50% will go to your husband as his share in the community property;
  
• 50% will be divided among your heirs (if you have no children and your parents or grandparents are dead, then your husband will get 25% while your brothers and sisters will divide among themselves the other 25%, under Art. 1001 of the New Civil Code of the Philippines).

2. When are properties acquired before marriage the exclusive property of each spouse?

Exception 1:

Exception 2:

If the man and woman before getting married agreed that their property relations would be governed either by conjugal partnership of gains (Articles 105 to 133 of the Family Code) or by complete separation of property (Article 143 to 146 of the Family Code). Article 109 enumerates what the exclusive properties of each spouse are. Paragraph (1) expressly states that property “brought to the marriage as his or her own” is exclusive property.

If the marriage was solemnized before August 3, 1988 (date of effectivity of the Family Code), then properties acquired before marriage are the exclusive property of each spouse. Why? The New Civil Code of the Philippines was the the prevailing law before the Family Code became effective. The NCC provided that, in the absence of an agreement between the future spouses, the default system of property relations would be conjugal partnership of gains.

Related post: “Heirs and inheritance (Part 8): Do inherited properties belong exclusively to the spouse who inherited them or to both spouses?”

Precautions in buying real estate

(Note: This post is part of my August 2009 article “Guidelines and precautions in buying church property” in another blog. The shortened version below is for the benefit of individuals buying real property.)

1. Verify the title’s authenticity with the Register of Deeds; verify the seller’s identity

Get a certified true xerox copy of the land title. Do not depend on the copy provided by the landowner, even if it is certified. According to one media report, there are more than 100,000 fake land titles circulating in the Philippines.

If possible, check also if the person saying that he is the landowner is really the person mentioned as the registered owner. Meaning, the person saying that he is the landowner may just be posing as the real landowner. Ask for a valid ID.

If the title says that the registered owners are the parents of the person saying he is the landowner, that is a problem. There might be other heirs to that property. If there are several heirs claiming ownership of the land, and some heirs want to sell while others do not, that is a problem. The majority of the heirs cannot simply outvote those who do not want to sell. The heirs who want to sell must file a petition in court under Rule 69 of the 1997 Rules of Civil procedure.

If the landowner is married, then marital conformity is needed for the sale of the land.

If the person selling the land to you is merely an agent and not the registered owner, that is a problem. Ask to meet and deal with the real owner.

2. Check the title for liens or encumbrances (adverse claim, notice of lis pendens, mortgage)

Check the back portion of the title to see if there are annotations for liens or encumbrances like adverse claim, notice of lis pendens, mortgage, etc. If there are liens or encumbrances on the title, then do not buy the property.

3. Verify the title’s authenticity with the Land Registration Authority

If the copy of the title on file with the Register of Deeds is clean of any lien or encumbrance, then bring the certified copy of the title to the Land Registration Authority (LRA) in Quezon City, opposite the Land Transportation Office. Ask the LRA Task Force on Spurious Land Titles to verify if the title is genuine.

4. Verify with the Assessor’s Office if the real estate taxes are paid up

If the LRA says that the title is genuine, then check with the Assessor’s Office if the “amilyar” or real estate taxes are paid up (no arrears or back taxes). If there are arrears, then talk to the landowner. You can propose for example to pay for the arrears but this should be part of the purchase price already. You need a written notarized document for this agreement on the payment of back taxes.

5. Ask a geodetic engineer to survey the land and check the title’s technical description

Ask the landowner permission to have the land surveyed. The purpose is to determine the actual land area. If the title says that the land area is 2,000 square meters but the survey only shows that the area is 1,500 then you can ask for a proportional reduction in the price.

6. Conduct an ocular inspection of the land

Check the land for potential problems (for examples, if the area is prone to floods, if the property has access roads or right of way, etc).

7. Clarify with the seller who will pay the transfer taxes and notarial fee

Clarify with the landowner as to who will shoulder the payment of the taxes (transfer, capital gains, etc).

You have to clarify also with the landowner as to who will pay the notarial fee for the deed of sale. The notary public usually charges one percent of whatever the price mentioned in the deed is. For example, if the price mentioned in the deed of sale is two million pesos, the notary public will charge Php 20,000.00 as notarial fee.

8. Have a paper trail of your payment

In the actual payment, paying in cash is not recommended. You must have a paper trail of your payment. You can ask your bank to issue a manager’s check or cashier’s check. Before signing the deed of sale, the landowner can verify from the bank if the check is genuine or is funded, etc.

“Dapat kaliwaan,” as we say in the vernacular. When you present the check for payment, the landowner must at the same time give you the title. After you receive the title, “dapat malinis na.” Meaning, all you have to do after paying and receiving the title, is to work on the transfer of the title to your name.

9. Submit required documents with the Register of Deeds

In transferring the title to your name, you will have to submit all the documents to the Register of Deeds (RD). Beforehand, you need to get the confirmation receipts from the BIR and the Assessor’s office. If the documents are complete and the BIR and Assessor’s office issue the proper documents saying that the taxes have been paid, then the RD will now transfer the title to the church’s name.

9.What to do if the land is donated to you

There is no such thing as “verbal donation” when it comes to lands. The New Civil Code of the Philippines requires donations worth more than five thousand pesos and the acceptance of such donation to be made in a notarized document. In a donation, the donor’s tax (20% of the value of the property) must be paid within 30 days from the time the deed of donation is executed.

10. What to do if the landowner refuses to hand over the title despite your full payment

If you have fully paid for a property but the landowner refuses to hand over the title, you should file immediately an “affidavit of adverse claim” with the Register of Deeds. Within 30 days from the time the adverse claim was annotated, you must file a case in court either for:

• specific performance (for the landowner to hand over the title), or
• rescission (cancellation of the contract).

With either case, you can ask for attorney’s fees and damages.

11. Paying by installment

In a contract of sale by installments, there is sometimes a part of the contract that provides for an “acceleration clause.” This means that failure to pay one or more installments will make the whole amount due and demandable. For example, you are bound to pay two million pesos in 24 monthly installments for the land. You paid the January and February installments, failed to pay the March installment, and then continued paying again. If there is an acceleration clause in the contract, then that failure to pay the March installment, for example, gives the landowner the right to demand that you pay the total sale price at once.

12. Make sure the real estate developer complies with government regulations

If you are buying a subdivision lot, make sure that the developer has all the necessary government permits. Keep all receipts for payment.

Heirs and inheritance (Part 6): Settle the estate of your deceased spouse before marrying again

Related posts: Heirs and inheritance (Part 1): If your spouse dies without a last will, who will inherit? Heirs and inheritance (Part 2): Legitimes, free portions, and intestate shares Heirs and inheritance (Part 3): Rights of illegitimate children when their parent dies without a last will Heirs and inheritance (Part 4): Who inherits from an illegitimate child? Heirs and inheritance (Part 5): The right of legitimate children to inherit

Articles 103 and 130 of the Family Code provide that before getting married again, you must:

[1] liquidate the community property or the conjugal partnership, and

[2] settle the estate of your deceased spouse.

If you don’t do these things, your subsequent marriage will be governed automatically by the regime of complete separation of property under Articles 143 to 146 of the Family Code. In simple terms, you and your subsequent spouse will not have any community property or conjugal partnership property to speak of.

Why? The Family Code seeks to protect the heirs of the deceased spouse, especially the children, by preventing:

[a] the dissipation of the assets of the first marriage, and

[b] complications in determining which property belongs to what marriage.

If you are the child of a parent who wants to get married again after the death of your other parent, you can insist that your share in the inheritance be given first to you. If your parent refuses, as a final resort, you can file a petition for judicial settlement of your deceased parent’s estate.

Liquidating the community property and settling the estate of the deceased spouse

Liquidating the conjugal partnership property and settling the estate of the deceased spouse

Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Heirs and inheritance (Part 5): The right of legitimate children to inherit

Related posts: Disinheriting children and descendants, legitimate as well as illegitimate If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?

Situation A: Several years ago, several Filipino-Chinese brothers and sisters asked me about their eldest brother’s claim that under Chinese custom, only the eldest child is entitled to inherit, with other siblings, especially the sisters, not being entitled to anything.

I told these brothers and sisters that since they (and their parents) are Filipino citizens, they are all entitled to inherit from their parents under Article 979 of the New Civil Code of the Philippines.

Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.

Chinese customs or traditions cannot prevail over the express provisions of Philippine law.

Situation B: Jose and Myrna have two legitimate children, A and B. When Myrna died, Jose got married to Susan. Jose and Susan have three children, namely, C, D, and E. When Jose dies, who among his children will inherit?

Article 979 is clear that all of Jose’s children (from his marriage to Myrna and his marriage to Susan) will inherit from him.

Situation C: When the mother died, the father started dating a younger woman, spending lavishly for her and even giving her the mother’s jewelry. When the children objected, the father said that they do not have any right to inherit yet since he was still alive.

The father is wrong. What the children are asking for is their inheritance from their deceased mother. Their right to inherit from their mother began when she died, as provided under Article 777 of the New Civil Code of the Philippines.

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent.

Situation D: You are a father or mother and one of your children has led an immoral life or threatened your life. What can you do to prevent this prodigal child from inheriting from you?

You must execute a last will disinheriting this child based on Article 919 of the New Civil Code of the Philippines. The requirements for a valid disinheritance under Article 918 are very strict (see the graphic below); you must consult a very competent notary public.

Please read also the Supreme Court decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006. In this case, the father executed a document entitled “Kasulatan ng Pag-Aalis ng Mana” where he disinherited his oldest child. The Court upheld the disinheritance.

Requirements and grounds for a valid disinheritance (click the picture to see the clearer, enlarged view)


Related posts:

• Heirs and inheritance (Part 1): If your spouse dies without a last will, who will inherit?
• Heirs and inheritance (Part 2): Legitimes, free portions, and intestate shares
• Heirs and inheritance (Part 3): Rights of illegitimate children when their parent dies without a last will
• Heirs and inheritance (Part 4): Who inherits from an illegitimate child?
• Heirs and inheritance (Part 6): Settle the estate of your deceased spouse before marrying again