Professional Documents
Culture Documents
PRELIMINARY MATTERS
Where ward resides or where his property is located (if non-resident)
REMEDIAL LAW
Family Court - If minor ward RTC - If other than minor ward Trusteeship Where the will was allowed or where the property affected by the trust is located Adoption If domestic - Where adopter resides If inter-country - Where adoptee resides (if filed with Family Court) If rescission of adoption - Where adoptee resides Habeas corpus Where detainee is detained (if filed in RTC) RTC
DEFINITION
SPECIAL PROCEEDINGS A remedy by which a party seeks to establish a status, right or a particular fact. [Rule 1, Sec. 3(c)]
APPLICABLE RULES
If special rules are provided, they shall apply. But in the absence of such special provisions, the rules applicable in special proceedings shall be applied. [Rule 72, Sec. 2] There are special proceedings which are not part of the ROC (e.g. Writs of amparo and habeas data), as special proceedings are in general cases wherein one seeks to establish the status/right of a party or a particular fact. The State has an overriding interest in each special proceeding, and the matter is not a controversy between private parties purely. [Bautista] The distinction between final and interlocutory orders in civil actions for purposes of determining the issue of applicability, is not strictly applicable to orders in special proceedings. Rule 109 specifies the orders from which appeals may be taken. [Regalado] Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings. [Matute v. CA (1969)]
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SC (on any day and at any time, enforceable anywhere in the Philippines) Sandiganbayan (only in aid of its appellate jurisdiction) CA (in instances authorized by law, enforceable anywhere in the Philippines) RTC (on any day and at any time, enforceable only within its judicial district) SC, CA, Sandiganbayan, RTC
Writ of amparo Where the threat or act/comission or any of its elements occurred, at any day and time) (if filed in RTC) Writ of habeas data Petitioner's residence or where the place the informaion is gathered/collected/store d, at the petitioner's option
RTC
SC, CA, Sandiganbayan If the action concerns public data files of government offices Change of name If judicial - Where the person applying for the change of his name resides If administrative RTC
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a) Local civil registry where the record sought to be changed is kept b) Local civil registry of XXXXX the place of residence of interested party (only if petitioner migrated to another place in the Philippines and it would be impractical to file in the place where records sought to be changed are kept) c) Philippine consulates xXXXX (only for Philippine citizens who reside in foreign countries) Cancellation/correction of entries in the civil registry If judicial - Where the concerned civil registry is located RTC
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If administrative Local civil registry or Philippine consulate XXXXX
REMEDIAL LAW II. SETTLEMENT OF ESTATE OF DECEASED PERSONS A. VENUE AND JURISDICTION
a) Local civil registry where the record sought to be changed is kept b) Local civil registry of XXXXX the place of residence of interested party (only if petitioner migrated to another place in the Philippines and it would be impractical to file in the place where records sought to be changed are kept) c) Philippine consulates XXXXX (only for Philippine citizens who reside in foreign countries) Declaration of absence and appointment of their representative Where absentee resided RTC before his disappearance
Special proceedings for settlement of estate may be testate (where the deceased left a will) or intestate (if there is no will). Probate of a will is mandatory and takes precedence over intestate proceedings. If in the course of intestate proceedings, it is found that the decedent left a will, proceedings for the probate of the latter should replace the intestate proceedings.
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g) Whether property in inventory is conjugal or exclusive property of deceased spouse. h) All other matters incidental/collateral to the settlement and distribution of the estate. Exception: [Coca v. Borromeo] Where a particular matter should be resolved by the RTC in the exercise of its general jurisdiction or its limited probate jurisdiction is not a jurisdictional issue but a mere question of procedure and can be waived.
REMEDIAL LAW
1) To satisfy the contributive shares of the devisees/legatees/heirs when the latter had entered prior possession over the estate. [Rule 88, Sec. 6] 2) To enforce payment of the expenses of partition. [Rule 90, Sec. 3] 3) To satisfy the costs when a person is cited for examination in probate proceedings. [Rule 142, Sec. 13]
B. PRESUMPTION OF DEATH
DETERMINATION OF OWNERSHIP
General rule: Not allowed. Exceptions: 1) Provisionally, ownership may be determined for the purpose of including property in inventory, without prejudice to its final determination in a separate action. 2) If all the parties are heirs and they submit the issue of ownership to probate court, provided that the rights of 3rd parties are not prejudiced. 3) If the question is one of collation or advancement. 4) If the parties consent to the assumption of jurisdiction by the probate court.
General rule: A person is dead for the purpose of settling his estate if he has been missing for 10 years. [Art. 390, CC] However, if the absentee disappeared after the age of 75 years, an absence of 5 years is sufficient for the opening of succession. However, the following persons would be considered absent even for the purpose of opening succession after just 4 years: [Art. 391, CC] 1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing. 2) A person in the armed forces who has taken part in war. 3) A person who has been in danger of death under other circumstances. If the absentee turns out to be alive, 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. [Rule 73, Sec. 4]
General rule: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts. The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties (e.g. if they entered into an extrajudicial partition settlement). [Sandoval v. Santiago] Note: In Rodriguez v. Borja, the SC said that the delivery of the will is sufficient for jurisdiction to be acquired, even if no petition is filed. Exception: Estoppel by laches.
General rule: Estate settlement should be judicially administered through an administrator/executor. Exceptions: 1) Extrajudicial settlement by agreement between/among heirs. [Rule 74, Sec. 1] 2) Summary settlement of estates of small value. [Rule 74, Sec. 2]
General rule: Ordinary appeal, and not certiorari or mandamus. Exception: If want of jurisdiction appears on the record of the case. [Rule 73, Sec. 1; Eusebio v. Eusebio]
General rule: Probate court cannot issue writ of execution. Rationale: Its orders usually refer to the adjudication of claims against the estate which the executor/administrator may satisfy without the need of executory process. Exception: [Vda. de Valera v. Ofilada]
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SPECIAL PROCEEDINGS
PROCEDURE IN EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN/ AMONG HEIRS
Death of the decedent
REMEDIAL LAW
from such distribution and such lien cannot be substituted by a bond. The bond is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims filed under Rule 74, Sec. 4.
2. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE PROCEDURE IN SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE
The public instrument or affidavit of adjudication must be filed with the proper Registry of Deeds Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation
An application for summary settlement with an allegation that the gross value of the estate does not exceed P10K
REQUISITES
A. Substantive 1) The decedent left: a) No will. b) No debts. It is sufficient if any debts that the decedent incurred has been paid at the time of the extra-judicial settlement. [Guico v. Bautista] There is also the disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent. 2) The heirs are all of age If there are minors, they should be represented by their judicial or legal representatives duly authorized for the purpose. B. Procedural 1) Division of estate must be in a public instrument or by affidavit of adjudication in the case of a sole heir Private instrument is valid. The requirement of a public instrument in Rule 74, Sec. 1 is not constitutive of the validity but is merely evidentiary in nature. (Hernandez v. Andal) However, reformation of the instrument may be compelled. [Regalado] 2) Filed with proper registry of deeds. 3) Publication of notice of the fact of extrajudicial settlement at least once a week for 3 consecutive weeks. An extrajudicial settlement, despite the publication thereof in a newspaper, shall not be binding on any person who has not participated therein or who had no notice thereof. [Rule 74, Sec. 1] 4) Bond filed equivalent to the value of the personal property. The bond is required only when personalty is involved. If it is a real estate, it shall be subject to a lien in favor of creditors, heirs or other persons for the full period of 2 years
Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation (the court may also order notice to be given to other persons as such court may direct
Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication of notice
Court to proceed summarily, without appointing an executor/administrator, and to make orders as may be necessary such as:
Partition of estate
REQUISITES
1) Gross value of the estate must not exceed P10K. 2) Application must contain allegation of gross value of estate. 3) Date of hearing: a) Shall be set by court not less than 1 month nor more than 3 months from date of last publication of notice. b) Order of hearing published once a week for 3 consecutive weeks in a newspaper of general circulation.
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4) Notice shall be served upon such interested persons as the court may direct. A summary settlement is not binding upon heirs/creditors who were not parties therein or had no knowledge thereof. [Sampilo v. CA] 5) Bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Rule 74, Sec. 4.
REMEDIAL LAW
6. ACTION TO ANNUL A DEED OF EXTRAJUDICIAL SETTLMENT ON THE GROUND OF FRAUD WHICH SHOULD BE FILED WITHIN 4 YEARS FROM THE DISCOVERY OF FRAUD [Gerona v. De Guzman]
Remedies: 1) If there is an undue deprivation of lawful participation in the estate 2) The existence of debts against the estate or undue deprivation of lawful participation payable in money This remedy can be availed of only within 2 years after the settlement and distribution of the estate. Such bond and such real estate shall remain charged with a liability to creditors/heirs, or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made. Period for claim of minor or incapacitated person: Within 1 year after the minority or incapacity is removed. 2. PETITION FOR RELIEF [Rule 38]
3. JUDICIAL SETTLEMENT THROUGH AN ADMINISTRATOR/ EXECUTOR PROCEDURE IN JUDICIAL SETTLEMENT THROUGH AN ADMINISTRATOR/ EXECUTOR
Death of the decedent
Grounds for petition for relief: FAME fraud, accident, mistake, excusable negligence. Period: 60 days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered. 3. REOPENING BY INTERVENTION WITHIN REGLEMENTARY PERIOD
Who is allowed to intervene with leave of court: A person who either: 1) Has a legal interest in the matter in litigation; 2) Has such legal interest in the success of either of the parties, or an interest against both; 3) Is so situated as to be adversely affected by a distribution/disposition of property in the custody of the court or of an officer thereof. Period: Anytime before rendition of judgment by the TC. As long as within reglementary period of 2 years. 4. NEW ACTION TO ANNUL SETTLEMENT WITHIN REGLEMENTARY PERIOD
The court shall cause notice of such time and place to be published 3 weeks successively in a newspaper of general circulation. Notice shall also be given to the designated/known heirs, legatees and devisees, and the executor if the one petitioning for allowance of the will is not the testator
Filing of Claims
Reglementary period: The 2 years, and not the prescription period. 5. RESCISSION IN CASE OF PRETERITION OF COMPULSORY HEIR IN PARTITION TAINTED WITH BAD FAITH [Art. 1104, CC]
Distribution of remainder, if any (but can be made before payment if a bond is filed by the heirs)
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PROCEDURE AFTER WILL IS DELIVERED TO, OR WHEN A PETITION FOR ALLOWANCE OF A WILL IS FILED IN, THE COURT: 1) The court shall fix a time and place for proving the will. Rationale: So that all concerned may appear to contest the allowance thereof, if such is the case. 2) The court shall cause notice of such time and place to be published 3 weeks successively in a newspaper of general circulation. This rule on newspaper publication does not apply if the probate of the will has been filed by the testator himself. 3) The court shall give notice of the designated time and place to: a) Designated/known heirs, legatees and devisees. b) Executor and co-executor (if not the petitioner). The probate court acquires jurisdiction over the interested persons and the res only after the publication and notices are sent. Also, if the testator himself is the one asking for the allowance of the will, the notice shall be sent only to his compulsory heirs. MODES OF NOTIFICATION [Rule 76, Sec. 4] 1) If by mail 20 days before hearing. 2) If through personal notice 10 days before hearing. DISALLOWANCE OF WILL [Rule 76, Sec. 9] 1) If the formalities required by law have not been complied with 2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution 3) If it was executed through force or under duress, or the influence of fear, or threats 4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person 5) If the signature of the testator was procured by fraud 6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto
Special proceedings for estate settlement may be testate (where the deceased left a will) or intestate (if there is no will). There must be judicial settlement through an administrator/executor if it does not fall under the 2 exceptions, regardless of the existence or non-existence of a will. The allowance of the will shall be conclusive as to its due execution. [Rule 75, Sec. 1]
RTC if estate is greater than P300K (P400K in Metro Manila). MTC if estate is less than P300K (P400K in Metro Manila). AS TO THE INTRINSIC VALIDITY OF A WILL General rule: No. The probate courts authority is limited to: 1) Extrinsic validity of the will. 2) Due execution thereof. 3) Testators testamentary capacity. 4) Compliance with the requisites or solemnities prescribed by law. Exception: PRINCIPLE OF PRACTICAL CONSIDERATION Waste of time/effort/expense plus added anxiety are the practical considerations that induce us to a belief that we might as well meet head-on the issues of the validity of the provisions of the will. [Nuguid v. Nuguid] If there is a defect that is apparent on the face of the will. [Nepomuceno v. CA]
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2) That the will was in existence when the testator died, or if it was not, that it has been fraudulently/accidentally destroyed in the lifetime of the testator without his knowledge; and 3) The provisions of the will are clearly established by at least 2 credible witnesses.
Without a satisfactory excuse, they shall be fined a sum not exceeding P2K. [Rule 75, Sec. 4] If he retains the will and does not deliver it to the court, he may be committed to prison and kept there until he delivers the will. [Rule 75, Sec. 5]
d. PROOF OF WILL
In the hearing for the probate of a will, the compliance of publication and notice must first be shown before introduction of testimony in support of the will. [Rule 76, Sec. 5]
When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.
PROBATE OF LOST/DESTROYED HOLOGRAPHIC WILL General rule: Not allowed. Exception: A lost/destroyed holographic will could be proved by photostatic or xerox copies thereof. [Rodelas v. Aranza] PROOF OF HOLOGRAPHIC WILL IF TESTATOR PETITIONS FOR PROBATE [Rule 76, Sec. 12] The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. If contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant. The testator may present such additional proof as may be necessary to rebut the evidence for the contestant.
e. CONTEST TO WILL
Procedure: The person contesting the will must state his opposition in writing and serve a copy thereof on the petitioner and other parties interested in the estate. [Rule 76, Sec. 10]
f.
A will allowed/probated in a foreign country must be reprobated in the Philippines. Administration of an estate extends only to the assets of the decedent found within the state or country where it was granted. The administrator appointed in one state has no power over property in another state or country. [Leon & Ghezzi v. Manufacturer Life Insurance] Petition to be filed in the RTC. The RTC where such petition is filed shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance. [Rule 77, Sec. 1 and 2]
PROOF IN THE REPROBATE OF THE FOREIGN WILL [Suntay v. Suntay] 1) The testator had his domicile in the foreign country; 2) The will has been admitted to probate in such country; 3) The fact that the foreign tribunal is a probate court; 4) The law on probate procedure of the said foreign country and proof of compliance therewith; 5) The legal requirements in said foreign country for the valid execution of the will.
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EFFECTS OF REPROBATE [Rule 77, Sec. 3 and 4] 1) The will shall have the same effect as if originally proved and allowed in the Philippines. 2) Letters testamentary or administration with a will annexed shall extend to all estates of the Philippines. 3) Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country.
Compensation may be provided for by the testator in the will; otherwise, Rule 85, Sec. 7 shall apply
REMEDIAL LAW
Compensation is to be governed by Rule 85, Sec. 7
SEVERAL CO-EXECUTORS NAMED IN THE WILL BUT NOT ALL CAN ACT If all of the named co-executors cannot act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will. [Rule 78, Sec. 5] ORDER OF PREFERENCE IN GRANTING LETTERS OF ADMINISTRATION 1) Surviving spouse or next of kin. NEXT OF KIN Those persons who are entitled under the statute of distribution to the decedents property. 2) Any one or more of the principal creditors. 3) Stranger.
Rationale: The underlying assumption is that those who will reap the benefits of a wise/speedy/economical administration of the estate or those who will most suffer the consequences of waste/improvidence/mismanagement, have the higher interest and most influential motive to administer the estate correctly. Letters of administration may be granted to any person or any other applicant even if there are other competent persons with a better right to the administration, if such persons fail to appear when notified and claim the letters to themselves. [Rule 79, Sec. 6] If a petition for letters of administration is filed, such court shall fix a time and place for hearing the petition and shall cause notice thereof to be given to the known heirs and creditors of the decedent, and other persons believed to have an interest in the estate. [Rule 79, Sec. 3]
OPPOSITION TO ISSUANCE
OPPOSITION OF THE ISSUANCE OF LETTERS TESTAMENTARY [Rule 79, Sec. 1] Any interested person in the will. He should state the grounds in writing why he is opposing and he may attach a petition for letters of administration. CONTENTS OF A PETITION [Rule 79, Sec. 2] 1) Jurisdictional facts. 2) Names/ages/residences of heirs and creditors. 3) Probable value and character of the estate. 4) Name of the person for whom the letters are prayed for.
But no defect in the petition shall render void the issuance of letters of administration
Duty to present the will to court Testator may provide that executor may serve without bond (but the court may direct him to give bond to pay debts)
GROUNDS FOR OPPOSING [Rule 79, Sec. 4] 1) in Letters Testamentary: Incompetence. 2) in Letters of Administration: Incompetence. Preferential right under Rule 78, Sec. 6.
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7) To render true an just account of his administration within 1 year of appointment. 8) To perform all orders by the court. 9) Discharge all debts/legacies/charges as shall be decreed by the court. 10) Give allowance to legitimate surviving spouse or children of the decedent if the court decrees such (grandchildren are not entitled). DUTIES/POWERS OF THE SPECIAL ADMINISTRATOR 1) Possession and charge of the goods, chattels, rights, credits and estate of the deceased. 2) Preserve the same. 3) Commence and maintain suit for the estate. 4) Sell only: (1) perishable property; and (2) property ordered by the court. 5) Pay debts only as may be ordered by the court. 6) Make a true inventory and appraisal of all real/personal property of decedent within 3 months after his appointment (except clothes of family, marriage bed, and other articles for subsistence of family). 7) To render true an just account of his administration within 1 year of appointment. 8) To perform all orders by the court. 9) Give allowance to legitimate surviving spouse or children of the decedent if the court decrees such (grandchildren are not entitled). 10) Deliver property he received to person appointed as executor or administrator or to such other person as may be authorized by the court. RESTRICTIONS ON THE POWER OF AN ADMINISTRATOR/EXECUTOR 1) Cannot acquire by purchase, even at public or judicial auction, either in person or mediation of another, the property under administration. 2) Cannot borrow money without authority of the court. 3) Cannot peculate with funds under administration. 4) Cannot lease the property under administration for more than 1 year. 5) Cannot continue the business of the deceased unless authorized by the court. 6) Cannot profit by the increase/decrease in the value of the property under administration. POWERS OF A NEW EXECUTOR/ADMINISTRATOR (AFTER THE FIRST RESIGNS, IS REMOVED, OR REVOKED) 1) Collect and settle the estate not administered. 2) Prosecute/defend actions commenced by or against the former executor/administrator. 3) Recover execution on judgments in the name of former executor/administrator. BOND A bond is necessary. Even if the testator provides that the executor shall serve without a bond, the court may still require the executor to give a bond, but the only condition which attaches to the bond is the payment of the debts of the testator. [Rule 81, Sec. 2] Additional bond may be required: 1) When there is a change in circumstances of the executor/administrator or for other sufficient cause. [Rule 81, Sec. 2] 2) In case of sale/mortgage/encumbrance of the property of the estate conditioned that the administrator/executor account for the
Court EEs should not be appointed special administrators as their objectivity and impartiality may be compromised by extraneous considerations.[Medina v. CA] The order of preference in the appointment of regular administrators does not apply to the appointment of a special administrator, but such order of preference may be followed by the judge in the exercise of sound discretion. [Matias v. Gonzales] Similarly, the grounds for the removal of the regular administrator do not apply strictly to the special administrator as he may be removed by the court on other grounds in its discretion. [Junquera v. Borromeo] The order appointing a special administrator is an interlocutory and is not appealable. [Garcia v. Flores]
WHEN APPOINTED 1) Delay in granting of letters including appeal in the probate of the will. [Rule 80, Sec. 1] 2) Executor is a claimant of the estate he represents. [Rule 86, Sec. 8] In this case, the administrator shall have the same powers as that of a general administrator.
Regular administrator Appointment may be the subject of appeal Special administrator Appointment is an interlocutory order and may not be the subject of an appeal He cannot pay the estate's debts Appointed if there is delay in granting letters testamentary or letters of administration, or if the executor is a claimant of the estate he represents
One of the obligations is to pay the estate's debts Appointed if decedent died intestate or did not appoint an administrator, or if the appointee refused or is not qualified
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proceeds of the sale or encumbrance. [Rule 89, Sec. 7(c)] For joint executors and administrators: The court may take separate bonds from each or a joint bond from all. [Rule 81, Sec. 3]
REMEDIAL LAW
Before the account is allowed, notice shall be given to interested persons in order for them for examination. [Rule 85, Sec. 10]
COMPENSATION TO EXECUTOR/ADMINISTRATOR [Rule 85, Sec. 7] That provided by the will is controlling. However, if there is no compensation provided, the compensation shall be either: 1) P4/day for the time actually and necessarily employed; 2) Commission upon the value of so much of the estate as comes into his possession and finally disposed of by him; 3) 2% of the first P5K, 1% in excess of P5K up to P30K, % in excess of P30K up to P100K, and % in excess of P100K. For 2 or more executors/administrators: The compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. Charge of legal fees rendered by executor/administrator to the estate: Not allowed. RENDER OF ACCOUNT Within 1 year from receiving letters testamentary/letters of administration. [Rule 85, Sec. 8] The court also may examine the executor/administrator upon oath as to any matter relating to the account rendered by him. [Rule 85, Sec. 9]
PERIOD FOR CLAIMS [Rule 86, Sec. 2] General rule: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Otherwise, the claims are barred forever. Even if the testator acknowledged the debt in his will and instructed the executor to pay such debt, the Statute of Non-Claims must still be complied with. Exception: BELATED CLAIMS Claims not filed within the original period fixed by the court. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed not exceeding 1 month from the order allowing belated claims (the order may be in open court or not).
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admitted as creditor and shall receive no share in the distribution of the other assets of the estate. These remedies are alternative; the availment of one bars the availment of the other remedies.
The Statute of Non-Claims and the Statute of Limitations must concur in order for a creditor to collect. A creditor barred by the Statute of NonClaims may file a claim as a counterclaim in any suit that the executor or administrator may bring against such creditor.
CLAIMS THAT DO NOT SURVIVE [Rule 86, Sec. 5] 1) Money claims, debts incurred by the deceased during his lifetime, arising from contract: a) Express or implied; b) Due or not due; c) Absolute or contingent. 2) Claims for funeral expenses or for the last illness of the decedent. 3) Judgment for money against decedent. However, a creditor barred by the statute of non-claims may file a claim as a counterclaim in any suit that the executor or administrator may bring against such creditor.
NOTICE REQUIREMENT IN CLAIMING AGAINST THE ESTATE: 1) The court, after granting letters testamentary/letters of administration, may immediately issue notices to creditors to file their claims. 2) This notice must be published for 3 successive weeks in a newspaper of general circulation and province, and post the same in 4 public places in the province and 2 public places in the municipality where the decedent last resided. 3) Within 10 days after the notice has been published and posted in accordance with the preceding section, the executor/administrator shall file or cause to be filed in the court a printed copy of the notice accompanied with an affidavit setting forth the dates of the first and last publication thereof and the name of the newspaper in which the same is printed.
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this rule provided, the prevailing party shall be allowed the costs of his action up to the time of its discontinuance. [Rule 86, Sec. 14]
REMEDIAL LAW
1) The creditors making the application pay such part of the costs and expenses; 2) Give security therefore to the executor/administrator. Requisites before creditor may bring action [Rule 87, Sec. 10] 1) There is a deficiency of assets in the hands of an executor/administrator for the payment of debts and expenses of administration. 2) In his lifetime, the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law, the conveyance would be void as against other creditors. 3) The subject of the attempted conveyance would be liable to attachment in his lifetime. 4) The executor/administrator has shown no desire to file the action or failed to institute the same within a reasonable time. 5) Leave is granted by the court to the creditor to file the action. 6) A bond is filed by the creditor. 7) The action by the creditor is in the name of the executor/administrator. The last 3 requisites are unnecessary where the grantee is the executor/administrator himself, in which event, the action should be in the name of all the creditors.
i.
Heirs may not sue the executor/administrator for recovery of property left by the decedent until there is an order of the court assigning such lands to such heir or until the time for paying debts has expired. [Rule 87, Sec. 3]
PROCEEDINGS WHERE PROPERTY CONCEALED, EMBEZZLED, OR FRAUDULENTLY CONVEYED Concealment/embezzlement/conveyance away any of the property of the deceased: The court may cite such suspected person to appear before it and examine him on oath on the matter of such complaint. [Rule 87, Sec. 6] If the suspected person refuses to appear or to answer questions asked him during the examination, the court may punish him for contempt and may commit him to prison until he submits to the order of the court. [Rule 87, Sec. 6] If even before the granting of the letters testamentary/letters of administration, such person shall be liable for double the value of the property sold, embezzled, or alienated to be recovered for the benefit of the estate. [Rule 87, Sec. 8] If decedent who fraudulently conveys the property to defraud creditors and there is a deficiency of assets in the hands of the administrator: Executor/administrator may commence and prosecute an action for the recovery of such property for the benefit of credits BUT he shall not be bound to commence the action unless either: [Rule 87, Sec. 9]
j.
IF ESTATE IS SUFFICIENT
General rule: The payment of the debts of the estate must be taken: (a) from the portion or property designated in the will; (b) from the personal property; and (c) from the real property, in that order. If there is still a deficiency, it shall be met by contributions by devisees, legatees, or heirs who have been in possession.[Rule 88, Sec. 2, 3 and 6] Exception: Instances when realty can be charged first: 1) When the personal property is not sufficient. [Rule 88, Sec. 3] 2) Where the sale of such personalty would be detriment of the participants (everyone) of the estate. [Rule 88, Sec. 3] 3) When sale of personal property may injure the business or interests of those interested in the estate. [Rule 89, Sec. 2] 4) When the testator has not made sufficient provision for payment of such
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debts/expenses/legacies. [Rule 89, Sec. 2] 5) When the decedent was, in his lifetime, under contract, binding in law, to deed real property to beneficiary. [Rule 89, Sec. 8] 6) When the decedent during his lifetime held real property in trust for another person. [Rule 89, Sec. 9] Requisites for exception to ensue: 1) Application by executor/administrator; 2) Written notice to persons interested; 3) Hearing. The same principles apply if the debt of the estate is in another country. The court may authorize an executor/administrator to sell/mortgage/encumber real estate acquired by him on execution or foreclosure sale, under the same circumstances and under the same regulations as prescribed in this rule for the sale/mortgage/encumbrance of other real estate. If testator orders the payment of a debt he believes he owes but does not in fact owe: The disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. Order of the sale of personal property: [Rule 89,Sec. 1] 1) To pay the debts and expenses of administration; 2) To pay legacies; 3) To cover expenses for the preservation of the estate.
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2) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of the petition, the reason for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper; 3) If the court requires it, the executor/administrator shall give an additional bond, in such sum as the court directs, conditioned that such executor/administrator will account for the proceeds of the sale/mortgage/encumbrance; 4) If the requirements in the preceding subdivisions of this section have been complied with, the court, by order stating such compliance, may authorize the executor/administrator to sell/mortgage/encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court may authorize it to be public or private, as would be most beneficial to all parties concerned. The executor/administrator shall be furnished with a certified copy of such order; 5) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale; 6) There shall be recorded in the registry of deeds of the province in which the real estate thus sold/mortgaged/encumbered is situated, a certified copy of the order of the court, together with the deed of the executor/administrator for such real estate, which shall be as valid as if the deed had been executed by the deceased in his lifetime. If sale/mortgage/encumbrance of the property of the decedent prevented by an interested person: That person can give a bond, in a sum fixed by the court, conditioned to pay the debts, expenses of administration, and legacies, and such bond shall be for the security of the creditors, as well as of the executor/administrator, and may be prosecuted for the benefit of either. [Rule 89, Sec. 3] Effect if the sale, mortgage, or encumbrance of the decedents property is done without notice: Void. Since the heirs are the presumptive owners, they succeed to the rights and obligations of the deceased at the moment of the latters death, and are the persons directly affected by the sale/mortgage and therefore cannot be deprived of the property, except in the manner provided by law. [Maneclang v. Baun]
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1) Contingent claim is duly filed within the 2 year period allowed for the creditors to present claims; 2) Court is satisfied that the claim is valid; 3) The claim has become absolute. If contingent claim that is not presented after becoming absolute within the 2 year period allowed: The assets retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same; but the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received form the property of the deceased.
REMEDIAL LAW
property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims.
TIME FOR PAYMENT OF DEBTS AND LEGACIES; PERIOD FOR SUCCESSOR OF DECEASED ADMINISTRATOR/EXECUTOR
[Rule 88, Sec. 15 and 16] Need not exceed 1 year in the first instance; but court may extend on application of executor/administrator and after hearing and notice thereof. Extension must not exceed 6 months for single extension. The whole period allowed to the original executor/administrator shall not exceed 2 years. The successor of dead executor/administrator may be allowed an extension not to exceed 6 month.
k. SALES AND CONVEYANCE OF PERSONALTY/REALTY FOR OTHER REASONS WHEN BENEFICIAL TO INTERESTED PERSONS
Authorization of sale as beneficial to interested persons: [Rule 89, Sec. 4] 1) Upon application by the executor/administrator and on notice to interested persons (heirs/devisees, etc.), the court may authorize the executor/administrator to sell the whole or part of the estate. 2) Authority shall not be granted if inconsistent with the provisions of a will. The proceeds of such sale shall be assigned to the persons entitled to the estate in the proper proportions.
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such modifications as are agreed upon by the parties and approved by the court. If the property is to be conveyed to the executor/administrator, it is the clerk of court which shall execute the deed.
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EXPENSES OF PARTITION [Rule 90, Sec. 3]
PROCEDURE There should be an application for such purpose and notice should be given to the interested persons and such further notice, by publication or otherwise, as the court deems proper. [Rule 89, Sec. 8] While Rule 89, Sec. 8 does not specify who should file the application, it stands to reason that the proper party must be one who is to be benefited/injured from the judgment or one who is entitled to the avails of the suit (i.e. even people not the executor/administrator can file the application). [Heirs of Spouses Sandejas v. Lina]
General rule: If there are sufficient effects in the hands of the executor/administrator, and if it not inconsistent with the intention of the testator, then such may be applied for the payment of the expenses of partition. Exception: If it cannot be paid by the executor/administrator, it should be paid by the parties in proportion to their respective shares or interest in the estate, and the apportionment shall be settled and allowed by the court. Person interested in the partition does not pay his proportion/share of the expenses of partition, the court may issue an execution in the name of the executor/administrator against him.
Authorization of conveyance of realty which the deceased held in trust: Following the notice requirement required as in the case where the decedent was under contract to convey realty, the court may allow the executor/administrator to deed such property to the person for whose use and benefit the property was held. The court may order the execution of such trust whether by deed or by law. [Rule 89, Sec. 9]
l.
General rule: Order of distribution shall be made after payment of all debts, funeral expenses, expenses for administration, allowance of widow, and inheritance taxes. [Rule 90, Sec. 1] Exception: If the distributes or any of them gives a bond conditioned for the payment of said obligation, the order of distribution may be made even before the payment of the debts and expenses. Title to the property is vested from the finality of the order of distribution. An order which determines the distributive share of heirs is appealable. If not appealed, it becomes final.
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proceedings may be served. [Gorostiaga v. Sarte]
Termination of guardianship
DEFINITION
KINDS OF GUARDIANS [Regalado] 1) LEGAL GUARDIAN Deemed as guardian by provision of law, without need of court appointment. [Art. 320, CC; Art. 225, FC] 2) GUARDIAN AD LITEM Appointed by the courts of justice to prosecute or defend a minor, insane or person declared to be incompetent, in a court action. 3) JUDICIAL GUARDIAN Appointed by the court in pursuance to law, as guardian for insane persons, prodigals, minor heirs or deceased war veterans and other incompetent persons. a) Guardian over the person; b) Guardian of the property; c) GENERAL GUARDIAN Has custody and care of the wards person and property. BASIS It is the States duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis--vis other parties. This parens patriae is inherent in the supreme power of the State. It is a most beneficent function and often necessary to be exercised in the interest of humanity and for the prevention of injury to those who cannot protect themselves. [Nery v. Lorenzo, (1972)] NECESSITY Jurisdiction over an incompetents person cannot be had unless a guardian was appointed upon whom summons and notice of the
1) Persons suffering the penalty of civil interdiction; 2) Hospitalized lepers; 3) Prodigals; 4) Deaf and dumb who are unable to read and write; 5) Those who are of unsound mind, even though they have lucid intervals; 6) Persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, thereby becoming an easy prey for deceit and exploitation.
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wards person and property. No man can serve two masters. [Garchitorena v. Sotelo] PETITIONS CONTENTS [Rule 93, Sec. 2] 1) Jurisdictional facts; 2) Incompetency rendering the appointment necessary/convenient; 3) Names/ages/residences of the incompetents relatives, and of the persons having him in their care; 4) Estates probable value and character; 5) Name of the person for whom letters of guardianship are prayed. The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship. [Rule 93, Sec. 2]
REMEDIAL LAW
person in question is an incompetent, the court shall appoint a suitable guardian of his person/estate/both. [Rule 93, Sec. 5] The guardians appointment is good until set aside; and, despite and appeal therefrom, the guardian can do what is necessary (under courts direction) for the protection of the ward/estate. [Zafra-Sarte v. CA (1970)]
SERVICE OF JUDGMENT The final order or judgment shall be served upon the civil registrar of the municipality/city where the incompetent resides or where his property is situated. [Rule 93, Sec. 8]
GUARDIANS BOND
Before an appointed guardian enters upon the execution of his trust, or letters of guardianship issue, he shall give a bond. [Rule 94, Sec. 1] Conditions on the bond: [Rule 94, Sec. 1] 1) To make and return, within 3 months, the estates inventory; 2) To faithfully execute the duties of his trust, to manage and dispose of the estate according to wards best interests, and to provide for the wards proper care/custody/education; 3) To account for the estate and all proceeds/interest derived therefrom; 4) At the expiration of his trust, to settle his accounts with the court and deliver the remaining estate to the person lawfully entitled thereto; 5) To perform all court orders. In case of breach of the bonds conditions, the bond may be prosecuted in the same proceeding or in a separate action, for the use and benefit of the ward or of any person legally interested in the estate. [Rule 94, Sec. 3]
HEARING
When a petition is filed, the court shall fix a time and place for hearing. The court shall cause notice to be given to the persons mentioned in the petition residing in the province, including the incompetent himself. [Rule 93, Sec. 3] Notice to the wards relatives is a jurisdictional requirement. [Yangco v. CFI]
OPPOSITION [Rule 93, Sec. 4] Any interested person may file a written opposition and pray that: 1) Petition be dismissed; 2) Letters of guardianship issue to himself or to any suitable person named in the opposition. Grounds for opposition: 1) Competency of the alleged incompetent; 2) Unsuitability of the person for whom letters are prayed. CONSIDERATIONS IN THE CHOICE OF THE GUARDIAN [Francisco v. CA (1984)] The court may consider the financial situation, the physical condition and sound judgment, prudence and trustworthiness, the morals, character and conduct, and the present and past history of a prospective appointee, as well as the probability of his being able to exercise the powers and duties of a guardian for the full period during which guardianship will be necessary. The courts should not appoint as a guardian any person who is not personally subject to their jurisdiction (e.g. non-residents). [Guerrero v. Teran] The best interests of a ward can override procedural rules and even the rights of parents to the custody of their children. A person who is incompetent to act as an executor/administrator does not necessarily need to be placed under guardianship. But if a person is incompetent to act as executor or administrator, then he is not the incompetent person envisaged in the law of guardianship. [Lopez Vda. De Baluyot v. Ines-Luciano (1976)] GUARDIANS APPOINTMENT The alleged incompetent must be present at the hearing, if able to attend. It must also be shown that the required notice was given. The court shall then hear parties evidences. If the
NEW BOND Whenever necessary, the court may require a new bond to be given by the guardian. After notice to interested persons, the sureties on the old bond may then be discharged from further liability when no injury will result to interested parties. [Rule 94, Sec. 2]
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others actions in the premises and for any resulting loss. [Zubeldia v. Hermanos] Exception: If he shows that he used reasonable care and discretion in the manner of selecting those whom he employs. To render an inventory of the wards estate within 3 months after his appointment; and an inventory and account annually after the appointment. [Rule 96, Sec. 7] The inventory and account may be compelled upon the application of an interested person. The inventories and accounts shall be sworn to by the guardian. All the estate described in the first inventory shall be appraised. The court may request the assistance of inheritance tax appraisers. If any property of the ward not included in an inventory already rendered is discovered/acquired by the ward, like proceedings shall be had for inventory and appraisement within 3 months. The court may authorize the guardian to join in an assent to an estate partition held by the ward jointly or in common with others. The authority shall only be granted after hearing, notice to the wards relatives, and a careful investigation as to the proposed actions necessity/propriety. [Rule 96, Sec. 5] Upon complaint of the guardian/ward or any person interested in the wards estate, that anyone is suspected of having embezzled/concealed/conveyed away any of the ward/estates property, the court may cite the suspected person to appear for examination and may order to secure the estate. [Rule 96, Sec. 6] Purpose: To secure evidence from persons suspected of embezzling, concealing or conveying away any property of the ward so as to enable the guardian to institute the appropriate action to obtain possession of and secure title to the property. [Cui v. Piccio] Upon the expiration of a year from his appointment, and as often thereafter as required, the guardian must present his account to the court for settlement and allowance. [Rule 96, Sec. 8] A non-parent guardian is allowed the amount of his reasonable expenses incurred in the execution of his trust, plus just compensation for his services, not exceeding 15% of the wards net income. Extra allowance may be made in each case as the importance and difficulty of the management of the estate may require. [Ramos v. PNB (1957)] A guardian may be imprisoned for failure to render his account and ordered to deliver the estate to his successor. [Doronila v. Lopez]
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2) If it appears that it is for the wards benefit that his real estate (or part thereof) be sold/encumbered and the proceeds put out at interest or invested. The grounds enumerated in this section are exclusive. No order will be issued for another purpose not found in this rule. Sale of the wards realty without court order is void. [Inton v. Quintana] The guardian may file a verified petition with the court which appointed him. The petition shall set forth the grounds, and pray for authorization of the sale/encumbrance.
4)
SHOW CAUSE ORDER [Rule 95, Sec. 2] If it seems probable that the sale/encumbrance is necessary/beneficial, the court shall direct the wards next of kin and all interested persons to appear and show cause why the petition should not be granted. Next of kin - Relatives whose relationships are such as to entitle them to shares in the estate as distributes. [Lopez v. Teodoro] HEARING [Rule 95, Sec. 3] At the time and place designated in the show cause order, the court shall hear evidences and grant/refuse the petitions prayer as the wards best interests require. ORDER FOR SALE/ENCUMBRANCE [Rule 95, Sec. 4] After full examination, if it appears that it is necessary/beneficial to the ward to sell/encumber the estate (or some portion of it), the court shall order the sale/encumbrance. Contents of the order: 1) That the proceeds be expended for the maintenance of the ward and his family, or put out at interest, or invested; 2) Specific causes why the sale/encumbrance is necessary/beneficial; 3) May direct that estate be disposed of at either public or private sale, subject to conditions on time and manner of payment and security. The guardians original bond shall stand as security for the proper appropriation of the sales proceeds; but the judge may require an additional bond as a condition for the granting of the order of sale. The order of sale cannot continue in force for more than 1 year without a sale being had. The court may authorize and require the guardian to invest the sale/encumbrances proceeds or the ward's money, for the best interest of all concerned. The court may make other orders for the management/investment/disposition of the estate and effects. [Rule 95, Sec. 5] This seeks to protect the wards funds against imprudent or unsafe investments by the guardian. [Philippine Trust Co. v. Ballesteros] The guardian cannot acquire by purchase, even at a public or judicial auction, the property of his ward. [Art. 1491, CC] If the authority to sell was obtained under suspicious circumstances indicative of fraud and collusion, the guardians sale may subsequently be annulled by the court. [Mendoza v. Labrador] However, the cancellation of the guardians authority to sell will not affect the buyers rights. [Margate v. Rabacal]
5)
6)
7)
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Appeal is the proper remedy against a court order authorizing the sale of the wards property. [Lopez v. Teodoro (1950)]
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ANCILLARY GUARDIANSHIP Guardianship in a state other than that in which guardianship is originally granted and which is subservient and subsidiary to the later. [Johannes v. Harvey] After filing of petition, notice and hearing, if the court is satisfied that the nonresident is an incompetent rendering a guardian necessary/convenient, it may appoint a guardian for the non-residents estate. [Rule 93, Sec. 6]
GUARDIANSHIPS TERMINATION
GROUNDS FOR TERMINATION 1) If the incompetent is no longer incompetent. [Rule 97, Sec. 1] The person who was declared incompetent, or his guardian/relative/friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that the subject person is then competent. Upon receipt of the petition, the court shall fix the time for hearing, and cause notice to be given to the guardian and the ward. On the trial, the guardian, the relatives and (courts discretion) any person may contest the right to the relief demanded. Witnesses may be called and examined by the parties or by the court. If it is found that the person is no longer incompetent, his competency shall be adjudged and guardianship shall cease. 2) If the incompetent dies. 3) If the guardian: [Rule 97, Sec. 2] a) becomes insane or incapable/unsuitable of discharging his trust; b) wasted/mismanaged the estate; c) failed for 30 days after it is due to render an account or make a return; d) resigns. Upon notice to the guardian, the court may remove him and compel him to surrender the wards estate to the person lawfully entitled to it. An order removing a guardian is an order constituting a final determination of his rights. Hence, the guardian may appeal. [Olarte v. Enriquez (1960)] A guardian may resign if it appears proper to allow him. Upon the guardians resignation/removal, the court may appoint another in his place. 4) If it appears that the guardianship is no longer necessary, the court may discharge the guardian. [Rule 97, Sec. 3] The court which appointed the guardian is also the court competent to decide the petition for restoration of to capacity. This is because the latter is merely a continuation of the original guardianship proceeding. [Crisostomo v. Endencia] Final orders or judgments on the guardianships termination shall be served upon the civil registrar of the municipality/city where the incompetent resides or where his property is situated. [Rule 97, Sec. 5]
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Rule 98 applies only to express trusts under CC. [Regalado] Express trust on an immovable, or interests in it, may not be proved by parole evidence. [Art. 1443, CC] While an implied trust may be established by parol evidence, an express trust cannot. Even then, an implied trust cannot be established upon vague and inconclusive proof. [Heirs of Lorenzo Yap v. CA (1999)] No particular words are required to create an express trust. It is sufficient that a trust is clearly intended. [Art. 1444, CC] The right creating/declaring a trust need not be contemporaneous or inter-parties. An express trust may even be declared by a writing made after the legal estate has vested in the trustee. The fact that an express trust was created by a deed which was absolute on its face may be shown by a writing separate from the deed itself. [De Leon v. Molo-Peckson (1962)] A trust shall not fail because the trustee appointed declines. [Art. 1445, CC] Exception: The contrary appears in the instrument constituting the trust. Beneficiarys acceptance is necessary. But if the trust does not impose any onerous condition on the beneficiary, his acceptance is presumed; Exception: If there is contrary proof. [Art. 1446, CC] General rule: A voluntary trust is irrevocable without the consent of the beneficiary. [De Leon v. Molo-Peckson (1962)] Exception: If the power to revoke was reserved.
DEFINITION
The legal relationship between a person having an equitable ownership in the property and another person owning the legal title to the property; the equitable ownership of the former entitles him to performance of certain duties and the exercise of certain powers by the latter. [Saltiga v. CA (1999)] DECLARATION OF TRUST Act by which a person acknowledges that the property, title to which he holds, is held by him for the use of another. [De Leon v. Molo-Peckson (1962)]
PARTIES TO A TRUST [Regalado] 1) Trustor 2) Trustee 3) Beneficiary (cestui que trust) KINDS OF TRUST [Saltiga v. CA (1999)] 1) EXPRESS Created by parties direct and positive acts; by some writing/words evidencing an intention to create a trust. 2) IMPLIED Deducible from the nature of the transaction as matters of intent; or superinduced on the transaction by operation of law as a matter of equity, independently of the parties particular intention. a) RESULTING TRUSTS Based on equity that valuable consideration (and not title) determines the equitable title/interest, and are presumed always to have been contemplated by parties. b) CONSTRUCTIVE TRUSTS Created by the construction of equity in order to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to intention against one who fraudulently obtains/holds the legal right to property which he should not, in equity, hold.
TRUSTEES APPOINTMENT
If testator omitted appointment of trustee, the court may appoint a trustee. That trustee shall have the same rights, powers and duties as if he was appointed by the testator. [Rule 98, Sec. 2] The power to appoint a trustee is discretionary with the court, and the appellate court will decline to interfere except in cases of clear abuse. Thereafter, it is likewise the discretion of the court to remove the trustee. [Tiangco v. Francisco]
SUCCESSOR TRUSTEES If the trustee declines/resigns/dies or is removed before the trusts objects are accomplished, and there is no adequate provision in the instrument creating the trust, the court may appoint a new trustee to act alone or jointly with others. That trustee shall have the same rights, powers and duties as if he was originally appointed. The court may order former/remaining trustees to convey the estate to him. [Rule 98, Sec. 3] A person succeeding to a trust (as the former trustees executor/administrator) is not required to accept the trust. [Rule 98, Sec. 2]
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TRUSTEES APPOINTED ABROAD TERRITORIALITY OF TRUSTEES AUTHORITY The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the Philippine territory. Proceedings if the trustee is appointed abroad:
Philippine land is held in trust for Philippine residents, by a trustee who derives authority from outside the Philippines
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TRUSTEES COMPENSATION
If the trustees compensation is not determined in the instrument creating the trust, it shall be fixed by the court. [Rule 98, Sec. 7]
Petition filed in the RTC of the province where the land is situated
If trustee fails to comply with the court order, the court will declare the trust vacant and appoint a new trustee. The trust shall vest in the new trustee as if he was originally appointed.
TRUSTEES DUTIES
Conditions upon the bond, WON written: [Rule 98, Sec. 6] 1) To make and return the estates inventory; Exception: If inventory was already filed, succeeding trustees need not file. Court may order inheritance tax appraisers to assist in the appraisal of the estate. [Rule 98, Sec. 7] 2) To manage the estate and faithfully discharge his trust; 3) To render an accounting under oath, once a year until the trust is fulfilled; Exception: If excused by the court in any year. 4) To settle his accounts in court and deliver the remaining estate to those entitle, at the trusts expiration. It is the trustees duty to deliver the properties to the beneficiary free from all liens and encumbrances. [De Leon v. Molo-Peckson (1962)]
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exceeding 60 days in 1 year does not break the continuity requirement. 14) ALIEN Any person, not a Filipino citizen, who enters and remains in the Philippines and is in possession of a valid passport or travel documents and visa.
NATURE OF PROCEEDING
Adoption is a juridical act which created between two persons a relation similar to that which results from legitimate filiation. [Prasnick v. Republic] Adoption is a privilege not innate or fundamental, but rather a right created by statute. It is a privilege which is governed by the states determination of what is for the best welfare of the child. [Lahum v. Sibulo (2003)]
IN REM PROCEEDING Adoption is not an adversarial proceeding since it has no particular defendant. [Republic v. Elepano (1991)] No court may entertain it unless it has jurisdiction over the parties and the res the personal status of the parties. Constructive notice is enough where the residence of the parents unknown. When the parent has abandoned the child to be adopted, notice to the former is not required. [Santos v. Arazanso, (1966)]
A. DOMESTIC ADOPTION
PROCEDURE FOR DOMESTIC ADOPTION UNDER AM-02-6-02-SC
Petition for domestic adoption
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1) The childs best interest is the paramount consideration in the childs care/custody/adoption. 2) The State shall provide alternative protection and assistance to foundlings, neglected, orphaned and abandoned children.
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QUALIFIED ADOPTEES [Sec. 5, Rule on
Adoption] 1) Any person below 18 years of age who was voluntarily committed to DSWD or judicially declared available for adoption; 2) The legitimate child of one spouse, by the other spouse; 3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy; 4) A person of legal age regardless of civil status, if, prior to the adoption, said he was consistently considered and treated by the adopters as their own child since minority; 5) A child whose adoption was rescinded; 6) A child whose biological/adoptive parents died. But no proceedings shall be initiated within 6 months from the time of the parents death; 7) A child not disqualified by law or these rules.
specific allegations If Filipino adopter a) b) c) Jurisdictional facts Adopter's qualifications That adopter has undergone pre-adoption services Jurisdictional facts Adopter's qualifications
If alien adopter
a) b)
If guardian-adopter If foundling-adoptee
Adopter's qualifications Entries which should appear in the birth certificate a) b) Child's registered name Aliases or other names by which the child has been known The full name by which the child is to be known
c)
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If petition for rectification a) of simulated birth b) That it is an application for rectification of a simulated birth That the simulation was made prior to the effectivity date of RA 8552, and that the application for rectificaion and the petition for adoption were filed within 5 years from that date That the petitioner made the simulation for the adoptee's best interests That the adoptee was consistently considered and treated by petitioner as his own child Facts showing that the child is a foundling, abandoned, dependent or neglected Parents' names and residence, if known, and their residence. If unknown, then those of the guardian Name of the duly licensed child-placement agency or individual who has care and custody of the child That the DSWD/agency is authorized to give its consent
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If the petition and attachments are sufficient in form and substance, the court shall issue an order. Orders contents: 1) Adoptees registered name in the birth certificate, and the names by which the adoptee has been known (to be stated in the caption); 2) Petitions purpose; 3) Complete name which the adoptee will use if the petition is granted; 4) Hearings date and place of hearing (within 6 months from the date of the orders issuance) Copy of the order shall be published at least once a week for 3 successive weeks before the hearing, in a newspaper of general circulation in the province/city where the court is situated. If the application is for change of name, the hearing shall not be within 4 months after the last publication of the notice nor within 30 days prior to an election. 5) Directive to the social worker to prepare and submit child and home study reports before the hearing, if such reports were not attached to the petition due to unavailability at the time of the filing; and 6) Directive to the social worker to conduct counseling sessions with the biological parents and to submit a report before the hearing. Court has discretion to furnish copies of the order to OSG, DSWD and the adoptees biological parents. If a change in the adoptees name is prayed for, notice to OSG is mandatory.
c)
d)
a)
b)
c)
d)
PETITIONS ANNEXES [Sec. 11, Rule on Adoption] 1) Birth/baptismal/foundling certificate and school records, showing adoptees name, age and residence; 2) Affidavit of consent of: a) The adoptee, if 10 years of age or over; b) The childs biological parents or legal guardian, child-placement/child-caring agency or proper government agency; c) The adopters and the adoptees legitimate and adopted children who are 10 years of age or over; d) The adopters illegitimate children living with him who are 10 years of age or over; e) The adopters and the adoptees spouses. 3) Child study report on the adoptee and his biological parents; 4) If petitioner is an alien, certification by his diplomatic/consular office that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Sec.4(2); 5) Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and 6) Decree of annulment, nullity or legal separation of the adopter and of the adoptees biological parents, if any.
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The petitioner and the adoptee must personally appear. The petitioner must testify. The court shall verify from the social worker to: 1) determine WON the biological parent was properly counseled against making hasty decisions caused by strain/anxiety to give up the child; 2) ensure that all measures to strengthen the family have been exhausted; 3) ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest.
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1) Name by which the child is to be known and registered; 2) Order for the COC to issue to the adopter a certificate of finality upon expiration of the 15day reglementary period for appeal; 3) Order for the adopter to submit a certified true copy of the adoption decree and the certificate of finality to the Civil Registrar where the child was originally registered, within 30 days from receipt of the certificate of finality. In case of change of name, the decree shall be submitted to the Civil Registrar where the issuing court is situated. 4) Order for the Civil Registrar of the place where the adoptee was registered: a) to annotate on the adoptees original birth certificate the adoption decree, within 30 days from receipt of the certificate of finality; b) to issue a birth certificate which shall not bear any notation that it is a new/amended certificate; c) to seal the original birth certificate in the civil registry records, which can be opened only upon order of the court which issued the adoption decree; d) to submit to the court issuing the adoption decree proof of compliance within 30 days from receipt of the decree; e) If the adoptee is a foundling, to annotate the adoption decree on the foundling certificate.
ADOPTIONS RESCISSION
Adoption may not be rescinded by the adopter; but he may disinherit the adoptee under Art. 919, CC. [Sec. 19, Rule on Adoption] Rationale: Adoption is for the childs best interests.
GROUNDS FOR RESCISSION THAT ARE COMMITTED BY THE ADOPTER [Sec. 19, Rule on Adoption] 1) repeated physical and verbal maltreatment despite having undergone counseling; 2) attempt on the adoptees life; 3) sexual assault/violence; 4) abandonment or failure to comply with parental obligations. VENUE [Sec. 20, Rule on Adoption] Family Court of the city/province where the adoptee resides. WHO MAY FILE THE PETITION FOR RESCISSION [Sec. 19, Rule on Adoption]
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The adoptee who is over 18 years of age. With the assistance of: 1) DSWD, if he is a minor; 2) His guardian/counsel, if he is over 18 years of age but is incapacitated.
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cannot be placed in a foster/adoptive family or cannot be cared for in the Philippines; 2) To ensure that the child enjoys the same protection accorded to children in domestic adoption; 3) To ensure that the placement does not result in improper financial gain for those involved.
WHEN TO FILE THE PETITION FOR RESCISSION [Sec. 21, Rule on Adoption] Within 5 years: 1) After reaching the age of majority, if the adoptee is incapacitated; 2) After recovery from incompetency, if the adoptee is incompetent. ORDER TO ANSWER [Sec. 22, Rule on Adoption] The court shall order the adverse party to answer the petition within 15 days from receipt of a copy thereof. JUDGMENT [Sec. 23, Rule on Adoption] If the court finds that the petitions allegations are true, it shall order the rescission of adoption. The court shall order that: 1) The biological parents parental authority, or the DSWDs legal custody, shall be restored if the adoptee is still a minor/incapacitated. 2) The reciprocal rights and obligations of the adopter and the adoptee shall be extinguished. 3) The successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. 4) The adoptee shall use the name stated in his original birth/foundling certificate. 5) The Civil Registrar where the adoption decree was registered shall cancel the new birth certificate of the adoptee and reinstate his original birth/foundling certificate. SERVICE OF JUDGMENT [Sec. 24, Rule on Adoption] A certified true copy of the judgment and a certificate of finality shall be served by the petitioner upon the Civil Registrar within 30 days from receipt of the certificate of finality. The Civil Registrar shall enter the rescission decree in the register and submit proof of compliance to the court within 30 days from receipt of the decree.
B. INTER-COUNTRY ADOPTION
SCOPE AND APPLICABILITY [Sec. 26, Rule
on Adoption] RA 8043 (Inter-Country Adoption Act) governs the adoption of Filipino children by: 1) Foreign nationals; 2) Filipino citizens permanently residing abroad.
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7) Character reference from the local church/minister, the petitioners ER and a member of the immediate community who have known the petitioner for at least 5 years; 8) Full body postcard-size pictures of the petitioner and his immediate family taken at least 6 months before the filing of the petition.
COURTS DUTY
If the court finds that petition is sufficient in form and substance and that there is a proper case for inter-country adoption, it shall transmit the petition to the Inter-Country Adoption Board. [Sec. 32, Rule on Adoption] An adoption created under the law of a foreign country is entitled to registration in the corresponding civil register of the Philippines. The effects of such adoption shall be governed by the law of the Philippines. [Marcaida v. Aglubat (1967)]
Court order fixing the date and place for hearing and ordering the sheriff to produce the alleged insane person in the hearing
Service of notice of the court order to the alleged insane person and to the person who has custody of him/her
INSANITY
Definition: Condition of the mind where it is so impaired in function or so deranged as to induce deviation from normal conduct in the person so afflicted.
Petition is filed in the RTC of the province where the person alleged to be insane is found. Who may file: 1) Person in custody or having charge of the insane person. 2) If the above refuses, and commitment is for the public welfare or the welfare of insane person, the Health Secretary with the assistance of the city/provincial fiscal.
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5) The court shall make proper provisions for the custody of the wards property until a guardian is properly appointed.
The Health Secretary may file a petition for the discharge of the insane person in the RTC which ordered the commitment when he is of the opinion that the person is permanently/temporarily cured or may be released without danger. [Rule 101, Sec. 4] The Health Secretary cannot order release without the approval of the RTC. [Chin Ah Foo v. Concepcion]. On the other hand, the RTC cannot order release without recommendation from the Health Secretary.
Termination of administration/trusteeship
APPOINTMENT OF A REPRESENTATIVE
[Rule 107, Sec. 1; Art. 381, CC] If a person disappears from his domicile, his whereabouts is unknown, and there is no agent left to administer his property or the agents power has expired, any interested party may petition for the appointment of the absentees representative.
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2) Heirs instituted in a will; 3) Relatives who will succeed by intestacy; 4) Those who have some (over the absentees property) subordinated to the condition of his death. PETITIONS CONTENTS [Rule 107, Sec. 3] 1) Jurisdictional facts; 2) Names/ages/residences of: a) Heirs instituted in the will; b) Relatives who would succeed by intestacy; 3) Names/residences of creditors and others who may have any adverse interest over the absentees property; 4) Absentees properties.
Service by leaving the original with the person to whom the writ is directed and preserving a copy
HEARING
Anyone appearing to contest the petition shall state his grounds in writing, and serve a copy on the other interested parties on or before the hearing. [Rule 107, Sec. 5] Upon proof of notice, publication and the petitions allegations, the court shall grant the petition and appointing the absentees representative/trustee/administrator. [Rule 107, Sec. 6] The court shall safeguard the absentees rights and interests and shall specify the representative/trustee/administrators powers, obligations and remuneration, regulating them by the rules on guardians. [Rule 107, Sec. 6; Art. 382, CC] Declaration of absence takes effect 6 months after its publication in a newspaper of general circulation and in the OG. [Rule 107, Sec. 6; Art. 386, CC]
Execution of the writ by conveying the detained person before the court, with return of service
DEFINITION
HC WRIT Writ directed to the person detaining another and commanding him to produce the body of the detained at a certain time and place, with the day and the cause of his caption and detention, to do, to submit to and receive whatever the court shall consider in that behalf. [Bouviers Law Dictionary] The HC writ is a speedy and effectual remedy to relieve persons from unlawful restraint, and is the best and only sufficient defense of personal freedom. It secures to a prisoner to have the cause of his detention examined and determined by a court of justice, and to have the issue ascertained as to WON he is held under lawful authority. [Feria v. CA (2000)]
WHO MAY BE APPOINTED REPRESENTATIVE/ADMINISTRATOR/TRUSTEE [Rule 107, Sec. 7; Art. 383, CC] 1) The spouse present is preferred; Exception: If there is legal separation. 2) If the absentee has no spouse, or the spouse is a minor/incompetent, any competent person
TERMINATION
GROUNDS FOR TERMINATION [Rule 107, Sec. 8] 1) If the absentee appears personally or by agent; 2) If absentees death is proved and heirs appear; 3) If a 3rd person appears, showing by a proper document that he has acquired the absentee's property by title. Administrator/trustee shall cease in the performance of his office, and the property shall be placed at the disposal of those who may have a right to it.
KINDS OF HC WRIT [Lee Yick Hon v. Insular Collector of Customs] 1) PRELIMINARY CITATION If the person is detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court issues the citation to the government officer having custody to show cause why the HC writ should not issue. 2) PEREMPTORY WRIT If the cause of the detention appears to be patently illegal. Noncompliance with this is punishable.
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General rule: HC writ shall not issue if the restraint is voluntary. [Kelly v. Director of Prisons] Exception: HC is a proper remedy to enable parents to regain custody of a minor, even if the minor is in the custody of a 3rd person of his own free will. [Tijing v. CA] Rationale: Custody cases involving minors are prosecuted to determine custody rights over a child. 3) If, as a consequence of a judicial proceeding: [Feria v. CA (2000)] a) There is deprivation of a constitutional right resulting in the persons restraint; b) The court has no jurisdiction to impose the sentence; or c) An excessive penalty was imposed, because the sentence is void as to the excess. ACTUAL AND EFFECTIVE RESTRAINT The essential object of the HC writ is to inquire into inbvoluntary restraint and to relieve the detained person. Thus, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action which must be actual and effective, not merely nominal/moral. [Ilusorio v. Bildner (2000)] It is not physical restraint alone which is inquired into by the HC writ. Any restraint which will prejudice freedom of action is sufficient ground. [Moncupa v. Enrile (1986)] Freedom may be lost due to external moral compulsion, fear or erroneous belief in the existence of the will. If the actual effect of such psychological spell is to plow a person at the mercy of another, the victim is entitled to the courts protection as much as an individual who is illegally deprived of liberty by physical coercion. [Caunca v. Salazar] Jurisprudence extended the definition of restraint to an accused who is out on bail and to convicts on parole. [In re: Azucena Garcia (2000)] RELEASE OF THE DETAINED The sole issue in HC proceedings is detention. When the release of the detained person is effected, the petition for the issuance of the HC writ becomes moot and academic. [Olaguer v. Military Commission (1987)] The release that renders a petition for the HC writ moot and academic is one that is free from involuntary restraints. Hence, the writ may still be applied for if: [Moncupa v. Enrile (1986)] 1) A person continues to be denied any of his constitutional rights; 2) The restraints are not merely involuntary but appear to be unnecessary; 3) An originally valid deprivation of liberty became arbitrary, in light of subsequent developments. NOT A SUBSTITUTE FOR TRIALS ORDINARY COURSE The HC writ does not lie to correct errors of fact or law. If a court has jurisdiction, its judgment/order is not subject to collateral attack by HC. The writ cannot perform the function of a writ of error, even if the judgment/order is erroneous, provided the
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court had jurisdiction. [Harden v. Director (1948)] HC writ is not intended as a substitute for the functions of a trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. HC writ is not ordinarily available in advance of trial to determine jurisdictional errors that may arise. [Galvez v. CA (1994)] HC writ may not be validly resorted to in lieu of a lost/dismissed appeal. [In re: Azucena Garcia (2000)] It is necessary that the court judgment which resulted in the illegal deprivation of liberty is no longer appealable, in which case the writ is in the nature of a collateral attack against a final but void judgment. [Chavez v. CA (1968)]
HC PETITION
A signed and verified petition must allege: [Rule 102, Sec. 3] 1) Fact of confinement/detention; 2) By whom; If the restraining person is unknown/uncertain, use an assumed appellation. But the person served is deemed the person intended. 3) Where; and 4) Cause or commitment order (if it can be procured without impairing HC writs efficiency), or lack thereof.
HC WRITS ISSUANCE
General rule: If it appears that the writ should issue, the COC issues the writ under the courts seal. [Rule 102, Sec. 5] Exception: In emergency cases, the judge may issue the writ under his own hand and deputize any person to serve it. The law even makes it the duty of the court to grant the HC writ if there is evidence that a person is unjustly restrained within the courts jurisdiction, though no application for the writ was made. [Villavicencio v. Lukban (1919)] Contents of the writ: [Rule 102, Sec. 6]
distraint by officer directed to him distraint NOT by officer directed to an officer
orders him to produce the orders officer to: 1) take person before the court and produce the person before the court and 2) summon the person detaining to show the cause of destraint
Grounds for denying the writ: [Rule 102, Sec. 4] 1) Custody under process/order by a court with jurisdiction; 2) If jurisdiction appears after the writ is allowed, the detained cannot be discharged because of informality/defect in the process/order; 3) Charge/conviction for an offense in the Philippines; 4) Imprisonment under lawful order.
HC WRITS SERVICE
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If the person to whom the writ is directed cannot be found or does not have custody of the detained person, serve the writ on any person who has such custody. [Rule 102, Sec. 7]
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apparent effect of the process. [Feria v. CA (2000)] Exception: [Rule 102, Sec. 13]
if custody is under warrant of commitment pursuant to law if custody is by any alleged private authority
HC WRITS EXECUTION
General rule: Officer to whom writ is directed shall convey the detained person on the day specified in the writ: 1) Before the judge who allowed the writ; 2) If he is absent, before any judge of the same court. [Rule 102, Sec. 8] Exception: If the person to be produced has sickness/infirmity such that he cannot be brought before the court without danger. The writ cannot be disobeyed for formal defect, if it sufficiently appears therefrom: 1) Who has custody of the detained; and 2) The judge/court before whom the detained must be produced. [Rule 102, Sec. 9]
return is considered prima return is only a plea of facie evidence of the cause the facts set forth of restraint therein, and the party claiming custody must prove such facts
HC WRITS RETURN The return is signed by the person who made it. It shall be sworn to if: 1) The detained is not produced; or 2) If it was not made and signed by a sworn public officer in his official capacity. [Rule 102, Sec. 11] Contents of the return: [Rule 102, Sec. 10] 1) WON he has custody of the detained; 2) Copy of the authority for the custody; 3) If the person is not produced in court, the nature and gravity of sickness/infirmity; 4) If custody is transferred, the circumstances of the transfer. General rule: A person imprisoned for any criminal matter cannot be removed from one custody to another. [Rule 102, Sec. 18] Exception: 1) By legal process; 2) To be delivered to an inferior officer to carry to jail; 3) For trial; 4) In cases of necessity or public calamity.
If detained person is admitted to bail, he shall file a bond conditioned on appearance in court; otherwise, he will be recommitted. [Rule 102, Sec. 14] Person set at liberty by the writ shall not be imprisoned for the same offense. [Rule 102, Sec. 17] Exception: If there is lawful order/process of a court having jurisdiction.
BURDEN OF PROOF
General rule: The burden of proving illegal restraint rests on the petitioner who attacks the restraint. If the return sets forth process which prima facie shows good ground for the prisoners detention, petitioner must allege and prove new matter that tends to invalidate the
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HD WRIT An independent remedy to protect the right to privacy, especially the right to informational privacy. Rationale: The privacy of ones person/family/home is a sanctified right in the history of constitutional law. A persons home is his kingdom, which even the king has to respect. The right to privacy is accorded a recognition independent of its identification with liberty. In itself, it is fully deserving of constitutional protection. A system of limited government safeguards a private sector, which belongs to the individual; firmly distinguishing it from the public sector, which the government can control. Protection of this private sector (i.e. of the individuals dignity and integrity) has become increasingly important as modern society developed. All the forces of technological age operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society. [Morfe v. Mutuc (1968) The HD writ is also a remedy to protect the right to life/liberty/security of a person from violation (or threat thereof) by an unlawful act/omission of a public official/EE or of a private individual/entity.]
B. WRIT OF AMPARO
AMPARO Literally, to protect. The instrument originated in Mexico and has been constitutionally adopted by Latin American countries (except Cuba) to protect against human rights abuses, especially during the time when they were governed by military juntas. The writ was adopted to provide for a remedy to protect the whole range of constitutional rights, including socio-economic rights. In light of the recent prevalence of extralegal killings and enforced disappearances (ELKED), SC exercised its enhanced power to promulgate rules to protect and enforce constitutional rights. [Art. 8, Sec. 5[5], Consti] EXTRALEGAL KILLINGS Killings committed without due process of law (i.e. without legal safeguards or judicial proceedings). ENFORCED DISAPPEARANCES Attended by the following circumstances: 1) Arrest/detention/abduction of a person by a government official or organized groups or private individuals acting with the in/direct acquiescence of the State; 2) Refusal of the State to disclose the fate/whereabouts of the person concerned, or refusal to acknowledge the deprivation of liberty, which places such persons outside the protection of the law. [Declaration on the Protection of All Persons from Enforced Disappearances] The Philippine Constitution does not explicitly provide for the writ. However, several amparo protections are available under the 1987 Constitution. The Grave Abuse Clause in Art. 8, Sec. 1, Consti accords the same protection to human rights given by amparo.
Constitutional basis Amparo contra leyes Art. 5, Sec.5(2)(a), Consti: SC has review powers over all cases in which the constitutionality/validity of any treaty, international/executive agreement, law, presidential issuances, or regulation is in question Art. 5, Sec.5(2), Consti: SC has explicit review powers over judicial decisions Recognized in form by the 1987 Consti Comparable to HC remedy under the ROC (which adopted the Old English rule on protection of individual liberty) and Consti provisions (Art. 3, Sec. 13 and 15; Art. 7, Sec. 18; Art. 8, Sec. 5, par. 1)
Amparo casacion
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Xxx Nature of remedy writ of amparo If right to life/liberty/security is violated (or threatened to be so) by a public official/EE or a private individual/entity
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writ of HD If right to privacy is so violated (or threatened to be so) in gathering/collecting/storing data or information about aggrieved party's person/family/home/correspondence 1) SAME 2) If ELKED cases (in order): a) SAME b) SAME Xxx Xxx Xxx If indigent petitioner, exempt SAME, but without prejudice to submission of proof of indigency within 15 days from filing Xxx 1) SAME 2) SAME 3) File/database location and person/entity in possession/control 4) Petitioner's actions/recourses to secure the data/information
Who may file Xxx Xxx Xxx Xxx Xxx Xxx Docket fees
1) Aggrieved party; 2) In order: a) Immediate family members b) Ascendant/descendant or collateral relative within 4th civil degree c) Concerned citizen/organization * Aggrieved party's filing suspends the right to file of others * Filing by an authorized party suspends the right of all others down the order Exempt Docket petition and act immediately
Signed, verified and allege: 1) Petitioner's circumstances 2) Respondent's circumstances 3) Right violated or threatened to be violated, and how violated/threatened 4) Investigations conducted 5) Petitioner's actions/recourses to determine aggrieved party's identity/whereabouts and violator's identity 6) Relief prayed for
Xxx
5) SAME, including the update/rectification/suppression/destruction of the file/database or enjoinment of the threat * SAME SAME SAME SAME, and he shall serve it within 3 days from issuance * SAME
* Include general prayer for other just and equitable reliefs Upon filing and petition's prima facie validity: Court shall immediately issue the writ Clerk of court shall issue the writ under the court's seal * If urgent, the judge/justice may issue the writ in his own handwriting and deputize anyone to serve it * The writ shall set the date and time for summary hearing, which should be within 7 days from issuance Contempt, without prejudice to other disciplinary actions Serve a copy on respondent and retain a copy on which to make a return of service * If respondent cannot be served personally, apply substituted service rules
Xxx
SAME SAME * SAME SAME, but within 5 working days (the court may extend the period for justifiable reasons) 1) SAME 2) If respondent has possession/control of the data/information: a) Disclosure of the data/information, its nature, and the purpose of its collection b) Steps/actions taken to secure the data/information's confidentiality c) Data/information's currency and accuracy 3) Other relevant allegations xxx
Respondent must file a verified written return within 72 hours after service Contents of return: 1) Lawful defenses 2) Steps/actions taken to determine the whereabouts of the aggrieved party and the violator 3) All relevant information
Xxx
Xxx
4) If respondent is a public official/EE, actions that were taken or will be taken: a) To verify the aggrieved party's identity b) To recover and preserve evidence for prosecution c) To determine death's/disappearance's circumstances
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Xxx Xxx Xxx Defenses raised d) To identify and apprehend persons involved e) To bring suspected offenders to court * General denial of petition's allegations is not allowed All defenses not raised in the return are deemed waived Xxx xxx xxx * SAME
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Hearing may be in chambers if respondent invokes the following defenses: 1) Release of the data/information will compromise national security or State secrets 2) Data/information cannot be divulged to public because of its nature or privileged character SAME xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
Xxx
Xxx
Xxx
Prohibited pleadings/motions Xxx Xxx Xxx Xxx Xxx Xxx Xxx Xxx Xxx Xxx Xxx
1) MTD 2) Motion for extension to file pleading 3) Dilatory motion for postponement 4) Motion for bill of particulars 5) Counter/cross complaint 6) 3rd party complaint 7) Reply 8) Motion to declare respondent in default 9) Intervention 10) Memorandum 11) MFR of interlocutory orders or interim relief orders 12) Petition for certiorari/mandamus/prohibition against interlocutory orders Ex parte hearing Xxx
SAME May grant petitioner relief as petition warrants, although it is the court's discretion to require petitioner to submit evidence SAME
Summary hearing
Allowed, but the court may call for a preliminary conference to simplify issues and determine possibility of obtaining stipulations and admissions Hearing will be day to day until completed, and has the same priority as HC petitions Upon filing and anytime before judgment, the court may grant any of the following: 1) Temporary protection order 2) Inspection order = To permit entry for inspecting relevant objects/operations 3) Production order = To produce and permit inspection of evidence 4) Witness protection order Only #2 and #3
xxx xxx
Xxx Xxx
xxx xxx
Xxx Xxx Availability of interim reliefs to respondent Contempt Burden of proof Required standard of diligence Xxx Xxx
For disobeying lawful court orders/processes Substantial evidence If respondent is: 1) Private individual/entity: Ordinary 2) Public official/EE: Extraordinary; and cannot invoke presumption of regularity in performance of official duty to evade liability Must be rendered within 10 days from petition's submission for decision * If petition's allegations are proven by substantial evidence, grant writ and reliefs; otherwise, deny Xxx Xxx
Judgment Xxx
SAME * SAME
* Upon judgment's finality, enforce within 5 days Executing officer must make return within 3 days from enforcement
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Xxx Appeal Xxx Appeal to SC under Rule 45, on questions of law, and within 5 days from notice of adverse judgment * Appeal has same priority as HC cases If petition cannot proceed for a valid cause, the court shall not dismiss it but shall archive it * After 2 years from notice of archiving to petitioner, petition shall be dismissed with prejudice upon failure to prosecute Not precluded
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* Notice and hearing on the executing officer's return SAME
Xxx
Institution of separate actions (criminal/civil) Effect of filing a criminal action Consolidation with another action
SAME
A separate petition for the amparo writ cannot be filed, but the remedy may be availed by motion in the criminal action If a separate criminal (and civil) action is filed subsequent to the filing of petition for the writ, consolidate the petition into the criminal action Cannot be increased/decreased/modified Suppletory
SAME
Xxx
SAME SAME
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In the RTC of the province where the petitioner has been residing for years prior to the filing of the petition.
Publication of the court order fixing the date and place of hearing, at least once a week for 3 successive weeks in a newspaper of general circulation
Judgment granting/denying the change of name. Copy of the judgment shall be served upon the civil registrar, who shall annotate the same
NATURE
Change of Name (Rule 103) Judicial Correction of clerical or typographical error (RA 9048) Administrative: Local civil registrar or consul general (for nonresident citizens) Clerical/typographical errors and change in first/nick name
A change of name is a proceeding in rem. As such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction. [Regalado] An alien can petition for a change of name but he must be domiciled in the Philippines. [Ong Huan Tin v. Republic (1967)] The name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that by which the person is known in the community. [Ng Yao Siong v. Republic (1966)] Legal separation is not a ground for the female spouse for a change of name under Rule 103. [Laperal v. Republic (1962)] A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his/her spouse and children. [Secan Kok v. Republic (1973)] Sex reassignment is not a valid ground to change ones first name (applies to both Rule 103 and RA 9048). [Silverio v. Republic (2007)]
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must be notified by service of a copy of the petition.
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APPLICATION OF RA 9048 TO CHANGES OF NAME OR CORRECTIONS OF ENTRIES IN THE CIVIL REGISTRY [RA 9048, Sec. 1]
RA 9048 can only be used with regards clerical or typographical errors and change of first or nickname which can be corrected or changed by the Civil Registrar or by the Consul General as regards non-residents.
A discrepancy in the name sought to be adopted as stated in the petition and in the published order constitutes a substantial defect because it did not correctly identify the parties to the proceedings. As such, there is no strict compliance with the publication requirement and renders the entire proceedings null and void since the court has not acquired jurisdiction. [Jacobo v. Republic]
Posting by the civil registar of the petition in a conspicuous place for 10 consecutive days
Decision by the civil registrar within 5 days after the completion of the posting requirement
[RA 9048, Sec. 4] 1) When the name is ridiculous, dishonorable or extremely difficult to write/pronounce. 2) The new first/nick name has been habitually and continuously used by the petitioner and he has been publicly known by that first/nick name in the community. 3) To avoid confusion.
The Civil Registrar General may impugn the decision based on grounds in RA 9048, and exercise appellate jurisdiction
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[RA 9048, Sec. 5] The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by the law to administer oaths and shall set forth: [Secan Kok v. Republic (1973)] 1) The facts necessary to establish the merits of the petition; 2) That the petitioner is competent to testify to the matters stated; 3) The erroneous entry which are sought to be corrected; 4) All names by which petitioner is known.
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1) Within 10 working days from receipt of the decision granting a petition, the Civil Registrar General shall exercise the power to impugn such decision by way of an objection based on the following grounds: a) The error is not clerical/typographical. b) The correction of entries is substantial/controversial as it affects the civil status of a person. c) The basis used in changing the first/nick name of a person does not fall under those provided by law. 2) The Civil Registrar General shall immediately notify the city/municipal civil registrar or the consul general of the action taken on the decision. 3) He has appellate powers over the decision of the local civil registrars/consul generals. If the Civil Registrar General fails to exercise his power to impugn within the prescribed period, the decision of the city/municipal civil registrar or the consul general shall become final and executory.
DUTIES AND POWERS OF THE CIVIL REGISTRAR GENERAL [RA 9048, Sec. 7]
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SPECIAL PROCEEDINGS X. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY A. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY UNDER RULE 108
PROCEDURE IN CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY UNDER RULE 108
Petition for change of name Civil registar is not a party to the proceeding
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Civil registrar concerned is made a party to the proceeding as a respondent. The OSG must also be served a copy of the petition Petition is filed by any person interested in any act/event/order/decree concerning the civil status of persons Order for hearing shall be published once a week for 3 consecutive weeks AND the court shall cause reasonable notice to be given to persons named in the petition
Order for hearing shall be published once a week for 3 consecutive weeks. No mention of causing notice to be sent
Cancellation/correction of entries in the civil registry is a proceeding in rem. As such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction.
Publication of the court order at least once a week for 3 successive weeks in a newspaper of general circulation, with reasonable notice given to persons named in the petition
Filing of opposition by the civil registar and any person having/claiming interest under the entry whose cancellation/correction is sought, within 15 days from notice of the petition or from the last date of publication of the notice
Judgment granting/denying the petition. Copy of the judgment shall be served upon the civil registrar, who shall annotate the same
1) Births; 2) Marriages; 3) Deaths; 4) Legal separations; 5) Judgments of annulments of marriage; 6) Judgments declaring marriages void ab initio; 7) Legitimations; 8) Adoptions; 9) Acknowledgements of natural children; 10) Naturalization; 11) Election/loss/recovery of citizenship; 12) Civil interdiction; 13) Judicial determination of filiation; 14) Voluntary emancipation of a minor; 15) Change of name.
Substantial changes (i.e. those affecting civil status, citizenship, nationality and substantial errors)
Rule 103 Petition to be filed in the RTC where the petitioner resides
Rule 108 Verified petition filed in the RTC where the corresponding civil registry is located
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upon the civil registrar concerned, who shall annotate the same.
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