Can a Guardian’s Notarized Affidavit Suffice for a Minor’s Consent in an Extrajudicial Settlement of Estate?

Introduction

In the Philippines, the settlement of a deceased person's estate can occur through judicial or extrajudicial means. An extrajudicial settlement is a simplified, out-of-court process allowed under Philippine law when the decedent dies intestate (without a will), leaves no outstanding debts, and all heirs agree on the division of the estate. This process is governed primarily by Rule 74 of the Rules of Court and relevant provisions of the Civil Code and Family Code. It offers efficiency and cost savings compared to probate proceedings but comes with strict requirements to ensure validity and protect the interests of all parties involved.

A common complication arises when one or more heirs are minors (persons under 18 years of age, as defined under Republic Act No. 6809, which lowered the age of majority from 21 to 18). Minors lack the legal capacity to enter into contracts or consent to legal acts on their own, necessitating representation by a parent exercising parental authority or a court-appointed guardian. The central question addressed in this article is whether a guardian's notarized affidavit—essentially a sworn statement affirming consent on behalf of the minor—can stand alone as sufficient for the minor's participation in the extrajudicial settlement, without the guardian directly executing the settlement deed itself.

This article explores the legal framework, requirements, procedural nuances, potential pitfalls, relevant jurisprudence, and practical considerations in the Philippine context. It aims to provide a comprehensive overview, drawing on established legal principles to conclude on the sufficiency of such an affidavit.

Legal Framework Governing Extrajudicial Settlements

Rule 74 of the Rules of Court

Rule 74, Section 1, provides the foundational rule for extrajudicial settlements:

"If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal guardians duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds..."

Key elements include:

No will and no debts.
Agreement among all heirs.
Execution of a public instrument (typically a notarized Deed of Extrajudicial Settlement).
Publication in a newspaper of general circulation for three consecutive weeks.
Filing with the Register of Deeds and payment of estate taxes within the prescribed period.

Notably, the rule explicitly allows for minors to be represented by their "judicial or legal guardians duly authorized for the purpose." This implies that extrajudicial settlements are permissible even with minor heirs, provided proper representation is in place. However, the representation must be "duly authorized," which ties into guardianship laws.

Guardianship Under the Civil Code and Family Code

Parental Authority as Legal Guardianship: Under Article 225 of the Family Code, parents jointly exercise legal guardianship over the property of their unemancipated minor children without the need for court appointment. In the absence of one parent (e.g., due to death), the surviving parent assumes sole authority. This includes the power to administer and represent the child in legal matters concerning their property.
Court-Appointed Guardians: If no parent is available or fit, or if the parents' authority is suspended, a guardian may be appointed by the court under Rule 92-97 of the Rules of Court. Such guardians must secure court approval for significant acts affecting the ward's property, such as sales or encumbrances (Article 234 of the Family Code).
Limitations on Guardians' Powers: While parents or guardians can represent minors, certain acts require additional safeguards. For instance, if the market value of the minor's property exceeds P50,000, the guardian must post a bond (Article 225, Family Code). Moreover, acts that amount to disposition or encumbrance of the minor's property (e.g., selling inherited land) generally require court authorization to prevent prejudice to the minor (Article 226, Family Code).

In the context of inheritance, upon the decedent's death, the heirs' rights vest immediately (Article 777, Civil Code). Thus, a minor heir owns their share outright, and any settlement involving partition affects that ownership.

Notarization and Public Instruments

A notarized document is a public instrument under Article 1358 of the Civil Code, which requires certain contracts (including those involving real property) to be in writing and notarized for validity against third parties. An affidavit is a sworn statement, often notarized, but it is not inherently a contract or deed—it is evidentiary in nature.

Role of the Guardian in Representing Minors

In an extrajudicial settlement, the guardian's role is to act as the minor's representative, ensuring the minor's interests are protected. This typically involves:

Reviewing the proposed division to confirm it is fair and not prejudicial.
Signing the Deed of Extrajudicial Settlement on behalf of the minor, often with language like "as legal guardian of [minor's name]."
Providing supporting documents, such as birth certificates to prove the minor's heirship and the guardian's relationship.

The deed itself must reflect unanimous consent, as any dissent could invalidate the settlement and necessitate judicial proceedings.

Sufficiency of a Guardian's Notarized Affidavit

Why an Affidavit Might Be Considered

A notarized affidavit from the guardian could theoretically serve as a declaration of consent, waiver of rights, or affirmation of the settlement terms on behalf of the minor. It might include statements like:

Confirming the guardian's authority.
Acknowledging the estate's composition and proposed division.
Consenting to the settlement without further claims.

This approach might appeal in scenarios where the guardian cannot physically sign the deed (e.g., due to distance) or prefers a separate document for clarity. However, Philippine law and jurisprudence indicate that such an affidavit alone does not suffice for several reasons.

Legal Insufficiency

Requirement of a Unified Public Instrument: Rule 74 mandates a single "public instrument" embodying the agreement of all heirs. Fragmenting consent across multiple documents (e.g., a main deed signed by adult heirs and a separate affidavit for minors) risks invalidating the settlement. The deed must encapsulate the entire partition, and the guardian's signature thereon directly binds the minor. An affidavit, while notarized, is supplementary and not a substitute for execution of the deed.
Capacity and Binding Effect: Consent in legal acts must be manifested in the instrument itself to ensure enforceability. Under Article 1318 of the Civil Code, contracts require consent, object, and cause. An affidavit may express consent but lacks the contractual structure of a deed, which includes detailed property descriptions, partitions, and warranties. Jurisprudence, such as in Heirs of Spouses Balite v. Lim (G.R. No. 152168, December 10, 2004), emphasizes that extrajudicial settlements must be in a form that clearly binds all parties, including representatives of minors.
Protection of Minors' Interests: Minors are wards of the state, and the law prioritizes their protection (Article 226, Family Code). Relying solely on an affidavit could bypass scrutiny, potentially allowing prejudicial settlements. If the partition involves real property, registration requires the deed to show clear representation, not a detached affidavit.
Publication and Registration Requirements: The affidavit would not fulfill the publication requirement under Rule 74, which applies to the settlement instrument. Registers of Deeds often reject filings without a comprehensive deed signed by all representatives.

Exceptions and Special Cases

If Incorporated into the Deed: An affidavit can be attached as an annex to the deed, but the guardian must still sign the main document. This is common for proving guardianship (e.g., an affidavit of guardianship).
Court Approval in Doubtful Cases: If the settlement might prejudice the minor (e.g., unequal shares), guardians are advised to seek court approval via a petition for guardianship or special proceedings. In Sampilo v. Court of Appeals (G.R. No. L-10474, February 28, 1958), the Supreme Court held that acts affecting minors' property without proper authorization are voidable.
When Minors Are Not Direct Heirs: If the minor is a substitute heir or beneficiary, different rules apply, but consent still requires direct representation.

Relevant Jurisprudence

Philippine case law underscores the need for proper representation:

Neri v. Heirs of Hadji Yusoph Uy (G.R. No. 194366, October 10, 2012): Affirmed that extrajudicial settlements with minor heirs are valid if guardians sign with authority, but emphasized the deed's integrity.
Heirs of Reese v. Republic (G.R. No. 151605, April 10, 2008): Highlighted that incomplete consent (e.g., missing signatures) renders the settlement ineffectual.
Guillas v. Court of First Instance (G.R. No. L-26695, January 31, 1972): Stressed that guardians must act within their powers; unauthorized acts are unenforceable against the minor.

No case directly holds that a standalone notarized affidavit suffices, and attempts to use such have been challenged as insufficient.

Practical Considerations and Risks

Procedure if Affidavit Is Used: If attempted, the settlement may face challenges during registration or in future disputes, leading to annulment under Article 1390 of the Civil Code (voidable contracts due to incapacity).
Alternatives: Opt for judicial settlement under Rule 83-91 if minors are involved, ensuring court oversight. Or, wait until the minor reaches majority.
Tax Implications: The Bureau of Internal Revenue requires the deed for estate tax clearance; an affidavit alone won't suffice.
Costs and Time: While extrajudicial is faster, improper handling can lead to litigation, negating benefits.
Best Practices: Consult a lawyer to draft a deed with explicit guardian representation. Include clauses protecting the minor's share (e.g., trust provisions).

Conclusion

In summary, a guardian's notarized affidavit does not suffice as a standalone substitute for a minor's consent in an extrajudicial settlement of estate under Philippine law. The guardian must directly execute the Deed of Extrajudicial Settlement to ensure binding effect, compliance with Rule 74, and protection of the minor's rights. While affidavits can support the process (e.g., proving authority), they cannot replace the unified public instrument required. Parties should prioritize legal consultation to avoid voidable settlements, potential disputes, and prejudice to vulnerable heirs. In cases of uncertainty, judicial intervention remains the safest path to uphold equity and legality in estate distribution.