Professional Documents
Culture Documents
Up08 Specpro 2
Up08 Specpro 2
I.
REMEDIAL LAW
PRELIMINARY MATTERS
DEFINITION
Trusteeship
APPLICABLE RULES
Special proceeding
To protect/enforce a right
or prevent/redress a
wrong
Involves 2 or more
parties
Governed by ordinary
rules, supplemented by
special rules
Initiated by a pleading,
and parties respond
through an answer
To establish a right/status
or fact
May involve only 1 party
Governed by special
rules, supplemented by
ordinary rules
Initiated by a petition,
and parties respond
through an opposition
Jurisdiction
Estate settlement
Province of decedent's
residence at the time of
death
If non-resident decedent
- Province where he had
estate
Escheat
If decedent dies
intestate and without
heirs - Province where
decedent last resided or
where estate is
If reversion - Province
where land lies
wholly/partially
Guardianship
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XXXXX
RTC
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
Family Court
Where detainee is
detained (if filed in RTC)
XXXXX
XXXXX
XXXXXX
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
RTC
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RTC
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SPECIAL PROCEEDINGS
If administrative -
REMEDIAL LAW
II.
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SETTLEMENT OF ESTATE OF
DECEASED PERSONS
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If
separate
proceedings
have
been
instituted for each estate, both proceedings
may be consolidated if they were filed in
the same court [Bernardo v. CA].
RESIDENCE
Personal/actual/physical
habitation, his actual residence or place of
abode [Fule v. CA], and not his permanent
legal residence of domicile [Pilipinas Shell v.
Dumlao].
Wrong venue is a waivable procedural defect,
and such waiver may occur by laches where a
party had been served notice of the filing of the
probate petition for a year and allowed the
proceedings to continue for such time before
filing a motion to dismiss. [Uriarte v. CFI]
Extent
of
courts
jurisdiction:
Limited
jurisdiction. It may only determine and rule
upon the following issues:
1) Administration of the estate;
2) Liquidation of the estate;
3) Distribution of the estate.
4) Other issues that may be adjudicated on:
a) Who are the heirs of the decedent.
[Reyes v. Ysip]
b) Recognition of a natural child. [Gaas v.
Fortich]
c) Validity of disinheritance effected by
the testator. [Hilado v. Ponce de Leon]
d) Status of a woman who claims to be
the decedents lawful wife. [Torres v.
Javier]
e) Validity of a waiver of hereditary rights.
[Borromeo-Herrera v. Borromeo]
f) Status of each heir.
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SPECIAL PROCEEDINGS
REMEDIAL LAW
B. PRESUMPTION OF DEATH
DETERMINATION OF OWNERSHIP
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.
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]
1. EXTRAJUDICIAL
SETTLEMENT BY
AGREEMENT
BETWEEN/AMONG HEIRS
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PROCEDURE IN EXTRAJUDICIAL
SETTLEMENT BY AGREEMENT BETWEEN/
AMONG HEIRS
2. SUMMARY SETTLEMENT OF
ESTATES OF SMALL VALUE
REQUISITES
A. Substantive
1) The decedent left:
a) No will.
b) No debts.
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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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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]
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Requires summary
judicial adjudication
Gross estate value must
not exceed P10K
Available even if there
are debts (since the
court will make
provisions for payment)
May be instituted by any
interested party, even
by a creditor of the
estate, without the
consent of all the heirs
Amount of bond is to be
determined by the court
Summary settlement
3. JUDICIAL SETTLEMENT
THROUGH AN
ADMINISTRATOR/ EXECUTOR
Filing of Claims
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a. VENUE AND
JURISDICTION
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]
b. ALLOWANCE/
DISALLOWANCE OF THE
WILL
PERSONS WHO MAY FILE PETITION [Rule 76, Sec.
1]
1) Executor;
2) Devisee/legatee named in the will;
3) Person interested in the estate;
4) Testator himself during his lifetime;
5) Any creditor as a preparatory step for filing of
his claim therein.
CONTENTS IN THE PETITION FOR PROBATE [Rule
76, Sec. 2]
1) Jurisdictional facts: Death of the testator and
his residence at the time of death or the place
where the estate was left by the decedent who
is a non-resident.
2) Names/ages/residences of the heirs, legatees,
and devisees.
3) Probable value and character of the estate
property.
4) Name of the person for whom the letters are
prayed.
5) Name of the person having custody of the will if
it has not been delivered to the court.
c. DUTY OF CUSTODIAN/
EXECUTOR OF WILL
DUTY OF THE CUSTODIAN OF THE WILL [Rule 75,
Sec. 2]
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d. PROOF OF WILL
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e. CONTEST TO WILL
f.
ALLOWANCE OF WILL
PROVED OUTSIDE THE
PHILIPPINES
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g. LETTERS TESTAMENTARY/
ADMINISTRATION
QUALIFICATIONS
PERSONS WHO MAY BE
EXECUTORS/ADMINISTRATORS
1) EXECUTOR The person named in the will to
administer the decedents estate and carry out
the provisions thereof.
2) ADMINISTRATOR (regular or special) The
person appointed by the court to administer the
estate where the decedent died intestate.
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Administrator
Appointed by the court if
the testator did not
appoint, of if the
appointee is
incapacitated or refused
No such duty
Administrator must
always give a bond
Compensation may be
provided for by the
testator in the will;
otherwise, Rule 85, Sec.
7 shall apply
Compensation is to be
governed by Rule 85,
Sec. 7
OPPOSITION TO ISSUANCE
OPPOSITION OF THE ISSUANCE OF LETTERS
TESTAMENTARY [Rule 79, Sec. 1]
Incompetence.
2) in Letters of Administration:
Incompetence.
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SPECIAL PROCEEDINGS
REMEDIAL LAW
SPECIAL ADMINISTRATORS
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]
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
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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]
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SPECIAL PROCEEDINGS
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COMPENSATION TO EXECUTOR/ADMINISTRATOR
[Rule 85, Sec. 7]
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]
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REVOCATION OF ADMINISTRATION;
DEATH/RESIGNATION/REMOVAL OF
ADMINISTRATORS AND EXECUTORS
ROLE OF ADMINISTRATOR IF A WILL IS
DISCOVERED
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A
claim
admitted
by
the
executor/administrator may be opposed by
an heir/legatee/devisee. [Rule 86, Sec. 11]
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SPECIAL PROCEEDINGS
REMEDIAL LAW
i.
ACTIONS BY OR AGAINST
EXECUTORS/
ADMINISTRATORS
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.
Executor/administrator
can
foreclose
a
mortgage belonging to the decedent. [Rule 87,
Sec. 5]
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]
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j.
IF ESTATE IS SUFFICIENT
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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.
EXCEPTIONS;
SALE/MORTGAGE/ENCUMBRANCE OF
REALTY EVEN IF PERSONALTY IS
SUFFICIENT TO PAY DEBTS
WHEN REALTY IS 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
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]
REGULATIONS FOR GRANTING AUTHORITY TO
SELL/MORTGAGE/ENCUMBER ESTATES [Rule 89,
Sec. 7]
1) The executor/administrator shall file a written
petition setting forth the debts due from the
deceased, the expenses of administration, the
legacies, the value of the personal estate, the
situation
of
the
estate
to
be
sold/mortgaged/encumbered, and such other
facts
as
show
that
the
sale/mortgage/encumbrance is necessary or
beneficial;
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CONTRIBUTIVE SHARE OF
DEVISEES/LEGATEES/HEIRS IN
POSSESSION OF PORTIONS OF ESTATE
FOR DEBTS
However, the benefit of this and the preceding sections shall not be extended to
the creditors in another country if the
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SPECIAL PROCEEDINGS
REMEDIAL LAW
PROCEDURE
PARTITION AND
DISTRIBUTION OF ESTATE
l.
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III.
REMEDIAL LAW
proceedings may be served. [Gorostiaga v.
Sarte]
GUARDIANSHIP
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
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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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HEARING
SERVICE OF JUDGMENT
GUARDIANS BOND
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NEW BOND
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4)
5)
6)
7)
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GUARDIANSHIPS TERMINATION
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]
GUARDIANSHIP OF NON-RESIDENT
INCOMPETENTS
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SPECIAL PROCEEDINGS
IV.
REMEDIAL LAW
TRUSTEES
DEFINITION
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TRUSTEES APPOINTMENT
SUCCESSOR TRUSTEES
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TERRITORIALITY
OF
TRUSTEES
AUTHORITY The powers of a trustee
appointed by a Philippine court cannot extend
beyond the confines of the Philippine territory.
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]
98, Sec. 8]
Grounds for removal of a trustee:
1) If essential to the interests of the party
petitioning the removal;
TRUSTEE VS.
EXECUTOR/ADMINISTRATOR
Trustee
Holds an office of trust
Duties may cover a wider
range, and are usually
governed by the intention
of the trustor or the
parties (if established by
contract)
TRUSTEES DUTIES
Executor/
Administrator
Holds an office of trust
Duties are fixed and/or
limited by law
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If
estates
sale/encumbrance
is
necessary/expedient, court may order such
sale/encumbrance
and
reinvestment/application of the proceeds.
Proceedings shall conform as much as possible
with
the
provisions
on
a
guardians
sale/encumbrance of a wards properties.
SPECIAL PROCEEDINGS
V.
REMEDIAL LAW
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.
ADOPTION
A
deserted/abandoned
infant/child whose parents/guardian/relatives
are unknown; or a child committed to an
orphanage/institution with unknown facts of
birth and parentage and registered in the Civil
Register as a foundling.
6) ABANDONED CHILD One who has no
proper parental care or guardianship or whose
parents deserted him for at least 6 continuous
months and was judicially declared as such.
7) DEPENDENT CHILD One who is without a
parent/guardian/custodian,
or
whose
parents/guardian/custodian for good cause
desires to be relieved of his care and custody
and is dependent upon the public for support.
8) NEGLECTED CHILD One whose basic needs
have
been
deliberately
unattended
or
inadequately
attended
to
by
his
parents/guardian.
9) CHILD STUDY REPORT Study made by the
court social worker of the childs legal status,
placement
history,
psychological,
social,
spiritual, medical, ethno-cultural background
and that of his biological family needed in
determining the most appropriate placement
for him.
10) HOME STUDY REPORT Study made by the
court social worker of the motivation and
capacity of the prospective adoptive parents to
provide a home that meets the needs of a
child.
11) SUPERVISED TRIAL CUSTODY Period
during which a social worker oversees the
adjustment and emotional readiness of both
adopters and adoptee in stabilizing their filial
relationship.
12) SIMULATION OF BIRTH Tampering of the
civil registry to make it appear in the birth
records that a certain child was born to a
person who is not his biological mother, thus
causing such child to lose his true identity and
status.
13) RESIDENCE A persons actual stay in the
Philippines for 3 continuous years immediately
prior to the filing of a petition for adoption and
which is maintained until the adoption decree is
entered. Temporary absences for professional,
business, health, or emergency reasons not
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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
A. DOMESTIC ADOPTION
PROCEDURE FOR DOMESTIC ADOPTION
UNDER AM-02-6-02-SC
Petition for domestic adoption
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Exception:
1) If one spouse seeks to adopt the
legitimate child of the other spouse;
2) If one spouse seeks to adopt his own
illegitimate child; provided the other
spouse consented;
3) If the spouses are legally separated.
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[Sec.
7-10,
Rule
on
specific allegations
If Filipino adopter
a)
b)
c)
Jurisdictional facts
Adopter's qualifications
That adopter has
undergone pre-adoption
services
If alien adopter
a)
b)
Jurisdictional facts
Adopter's qualifications
If guardian-adopter
Adopter's qualifications
If foundling-adoptee
a)
b)
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c)
SPECIAL PROCEEDINGS
If petition for rectification a)
of simulated birth
b)
c)
d)
a)
b)
c)
d)
REMEDIAL LAW
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
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Exception:
1) A former Filipino citizen who seeks to
adopt a relative within the 4th degree;
2) One who seeks to adopt the legitimate
child of his Filipino spouse;
3) One who is married to a Filipino citizen
and seeks to adopt jointly with his
spouse the latters relative within the
4th degree.
If the child is below 7 years of age and is
placed with the prospective adopter through a
DSWD pre-adoption placement authority, the
court shall order that the prospective adopter
shall enjoy all the benefits to which the
biological parent is entitled from the date the
adoptee is placed with him.
The social worker shall submit to the court a
report on the result of the trial custody within 2
weeks after its termination.
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After
compliance
with
jurisdictional
requirements, all adoption hearings shall be
confidential and shall not be open to the public.
All related records shall be kept strictly
confidential.
If the court finds that disclosure to a 3rd
person is necessary for security reasons or for
purposes connected with or arising out of the
adoption and will be for the adoptees best
interests, the court may order the necessary
information to be released, restricting the
purposes for which it may be used.
ADOPTIONS RESCISSION
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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]
B. INTER-COUNTRY
ADOPTION
SCOPE AND APPLICABILITY [Sec. 26, Rule
on Adoption]
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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.
VI.
HOSPITALIZATION OF
INSANE PERSONS
COURTS DUTY
Petition for commitment filed in RTC
INSANITY
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ABSENTEES
VII.
Termination of administration/trusteeship
APPOINTMENT OF A REPRESENTATIVE
[Rule 107, Sec. 1; Art. 381, CC]
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VIII. WRITS
A. HABEAS CORPUS
4]
HEARING
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.
DEFINITION
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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.
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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]
distraint by officer
directed to him
HC WRITS SERVICE
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HC WRITS EXECUTION
HC WRITS RETURN
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.
PUNISHABLE ACTS/OMMISSIONS
1) If COC refuses to issue the writ after allowance
by the court and demand.
2) If person directed in the writ:
a) Neglects/refuse to obey or make the
return;
b) Makes a false return;
c) Refuses to deliver a true copy of the
warrant/order of commitment, within 6
hours after demand.
3) Imprisoning a person set at liberty by the writ,
for the same offense. [Rule 102, Sec. 17]
4) Removing a prisoner from one custody to
another. [Rule 102, Sec. 18]
PENALTIES
1) Forfeiture of P1,000 to the aggrieved party.
2) Punished for contempt.
100% UP LAW
BURDEN OF PROOF
if custody is by any
alleged private
authority
UP BAROPS 2008
SPECIAL PROCEEDINGS
REMEDIAL LAW
B. WRIT OF AMPARO
EXTRALEGAL
KILLINGS
Killings
committed without due process of law (i.e.
without
legal safeguards
or judicial
proceedings).
ENFORCED
DISAPPEARANCES
Constitutional basis
Amparo contra leyes
Amparo casacion
Amparo administrative
Amparo libertad
UP BAROPS 2008
Page 123 of 40
SPECIAL PROCEEDINGS
Xxx
REMEDIAL LAW
writ of amparo
writ of HD
Nature of remedy
1) Aggrieved party;
1) SAME
Xxx
2) In order:
Xxx
Xxx
Xxx
Xxx
Xxx
Docket fees
a) SAME
b) SAME
Xxx
Xxx
Xxx
Exempt
Contents of petition
Xxx
Xxx
1) Petitioner's circumstances
1) SAME
Xxx
2) Respondent's circumstances
2) SAME
Xxx
Xxx
5) Petitioner's actions/recourses to
determine aggrieved party's
identity/whereabouts and violator's identity
Xxx
Xxx
* SAME
Xxx
Issuance of writ
Xxx
Xxx
Xxx
Xxx
SAME
SAME
SAME, and he shall serve it within 3 days
from issuance
* SAME
SAME
SAME
* SAME
Xxx
Contents of return:
Xxx
1) Lawful defenses
1) SAME
Xxx
Xxx
Xxx
Xxx
Xxx
Xxx
100% UP LAW
UP BAROPS 2008
xxx
SPECIAL PROCEEDINGS
Xxx
Xxx
Xxx
Defenses raised
REMEDIAL LAW
xxx
* SAME
xxx
Xxx
Xxx
Xxx
Xxx
Prohibited
pleadings/motions
Xxx
1) MTD
xxx
Xxx
xxx
Xxx
xxx
Xxx
5) Counter/cross complaint
xxx
Xxx
xxx
Xxx
7) Reply
xxx
Xxx
xxx
Xxx
9) Intervention
xxx
Xxx
10) Memorandum
xxx
Xxx
xxx
Xxx
Summary hearing
SAME
Xxx
xxx
Interim reliefs
xxx
Xxx
xxx
Xxx
xxx
Xxx
xxx
Only #2 and #3
xxx
SAME
Burden of proof
Substantial evidence
xxx
Required standard
of diligence
Xxx
If respondent is:
xxx
xxx
Xxx
xxx
Judgment
SAME
Xxx
Return of service
Xxx
Xxx
Effect of failure to
file return
Xxx
Xxx
Availability of
interim reliefs to
respondent
Contempt
Xxx
100% UP LAW
UP BAROPS 2008
xxx
SAME
xxx
* SAME
Page 125 of 40
SPECIAL PROCEEDINGS
REMEDIAL LAW
Xxx
Xxx
Appeal
Xxx
Archiving and
revival of cases
Xxx
Institution of
separate actions
(criminal/civil)
Effect of filing a
criminal action
Xxx
SAME
SAME
Substantive rights
Cannot be increased/decreased/modified
SAME
ROC application
Suppletory
SAME
Consolidation with
another action
100% UP LAW
UP BAROPS 2008
Xxx
SPECIAL PROCEEDINGS
IX.
REMEDIAL LAW
CHANGE OF NAME
VENUE [Rule 103, Sec. 1]
A. CHANGE OF NAME
UNDER RULE 103
Judicial
Includes change in
surname
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
100% UP LAW
NATURE
Change of Name (Rule
103)
UP BAROPS 2008
Page 127 of 40
SPECIAL PROCEEDINGS
REMEDIAL LAW
B. CHANGE OF NAME
UNDER RA 9048
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SPECIAL PROCEEDINGS
REMEDIAL LAW
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UP BAROPS 2008
Page 129 of 40
SPECIAL PROCEEDINGS
X.
REMEDIAL LAW
Civil registar is not a
party to the proceeding
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
Any
person
interested
in
any
act/event/order/ decree concerning the civil
status of persons.
The civil registrar and all persons who
have/claim any interest shall be made parties
to the proceeding.
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
Rule 103
Rule 108
100% UP LAW
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.
UP BAROPS 2008
SPECIAL PROCEEDINGS
REMEDIAL LAW
The
civil
registrar
and
any
person
having/claiming any interest under the entry
whose cancellation or correction is sought
may file an opposition in court, within 15
days from notice of the petition or from the
last date of such notice.
B. CANCELLATION OR
CORRECTION OF
ENTRIES IN THE CIVIL
REGISTRY UNDER RA
9048
XI.
APPEALS IN SPECIAL
PROCEEDINGS
100% UP LAW
UP BAROPS 2008
Notwithstanding
a
pending
controversy/appeal in estate settlement
proceedings, the court may permit that the
estates parts which are not affected by the
controversy/appeal be distributed, upon
compliance with Rule 90.
Page 131 of 40