P. 1
Copy of UP08 SpecPro

Copy of UP08 SpecPro

|Views: 64|Likes:
Published by jojitus
bar
bar

More info:

Published by: jojitus on Jun 21, 2010
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

10/27/2011

pdf

text

original

Sections

SPECIAL PROCEEDINGS I.

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)]

Family Court Family Court or InterCountry Adoption Board Family Court

XXXXX

XXXXX

XXXXXX

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

ORDINARY ACTIONS VIS-À-VIS SPECIAL PROCEEDINGS
Ordinary action 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 Special proceeding 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

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

VENUES AND JURISDICTIONS FOR DIFFERENT SPECIAL PROCEEDINGS
Venue 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 MTC - If estate's gross value does not exceed P300K (P400K in Metro Manila) RTC - If estate's gross value exceed MTC's jurisdiction XXXXX Jurisdiction

XXXXX

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

Local civil registry or Philippine consulate XXXXX

100% UP LAW

UP BAROPS 2008

Page 92 of 227

SPECIAL PROCEEDINGS
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.

WHERE ESTATE IS SETTLED
1) If decedent is a resident of the Philippines (whether citizen or alien) – Court of the place where the decedent resided at the time of death. 2) If decedent is a non-resident of the Philippines – Court of the place where the decedent had his estate. a) RTC if estate is greater than P300K (P400K in Metro Manila) b) MTC if estate is less than P300K (P400K in Metro Manila) • Note: Upon dissolution of marriage by the death of either the husband or the wife, the partnership affairs must be liquidated in the in/testate proceedings of the deceased spouse. If both have died, liquidation may be made in the in/testate proceedings of either. [Rule 73, Sec. 2] • 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 court’s 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 decedent’s lawful wife. [Torres v. Javier] e) Validity of a waiver of hereditary rights. [Borromeo-Herrera v. Borromeo] f) Status of each heir.

100% UP LAW

UP BAROPS 2008

Page 93 of 40

SPECIAL PROCEEDINGS
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]

EXCLUSIONARY RULE [Rule 73, Sec. 1]

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.

C. WAYS OF SETTLING THE ESTATE

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]

REMEDY IF THE VENUE IS IMPROPERLY LAID

1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN/AMONG HEIRS

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]

ISSUANCE OF WRIT OF EXECUTION

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]

100% UP LAW

UP BAROPS 2008

Page 94 of 227

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.

Division of estate in public instrument or affidavit of adjudication

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

Death of the decedent

Filing of bond equivalent to the value of personal property

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:

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

Filing of bond fixed by the court

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.

100% UP LAW

UP BAROPS 2008

Page 95 of 40

SPECIAL PROCEEDINGS
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]

EXTRAJUDICIAL SETTLEMENT VS. SUMMARY SETTLEMENT
Extra-judicial settlement No court intervention Estate's value is immaterial There must be no outstanding debts at the time of settlement Resorted to at the instance and by agreement of all the heirs Amount of bond is equal to the value of the personal property Summary settlement 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

REMEDIES OF AGGRIEVED PARTIES AGAINST EXTRAJUDICIAL SETTLEMENT / SUMMARY SETTLEMENT
1. CLAIM AGAINST THE BOND OR REAL ESTATE OR BOTH [Rule 74, Sec. 4]

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

Petition for probate of the will, if any

Court order fixing the time and place for probate

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

Issuance of Letters Testamentary/Administration

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]

Payment of claims: sale/mortgage/encumbrance of estate properties

Distribution of remainder, if any (but can be made before payment if a bond is filed by the heirs)

100% UP LAW

UP BAROPS 2008

Page 96 of 227

SPECIAL PROCEEDINGS

REMEDIAL LAW
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]

a. VENUE AND JURISDICTION

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 court’s authority is limited to: 1) Extrinsic validity of the will. 2) Due execution thereof. 3) Testator’s 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]

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. • But no defect shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.

c. DUTY OF CUSTODIAN/ EXECUTOR OF WILL
DUTY OF THE CUSTODIAN OF THE WILL [Rule 75, Sec. 2] • To deliver the will within 20 days after he knows of the death of the testator to the court having jurisdiction or to the executor named in the will. DUTY OF THE EXECUTOR NAMED IN THE WILL [Rule 75, Sec. 3] 1) It is his duty to present the will within 20 days after (a) he knows of the death of the testator or (b) after he knows that he is named the executor to the court having jurisdiction, unless the will has reached the court in any other manner. 2) Signify to the court in writing his acceptance of the trust or his refusal to accept it. FAILURE TO FULFILL ABOVE DUTIES

100% UP LAW

UP BAROPS 2008

Page 97 of 40

SPECIAL PROCEEDINGS

REMEDIAL LAW
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.

EVIDENCE REQUIRED IN SUPPORT OF THE WILL
1) Uncontested wills: [Rule 76, Sec. 5] a) Notarial wills – Testimony of at least 1 of the subscribing witnesses may be allowed, if such witness testifies that the will was executed as is required by law. • If all subscribing witnesses reside outside the province – Deposition is allowed. • If the subscribing witnesses are dead, insane, or if none of them resides in the Philippines – The court may admit testimony of other witnesses to prove the sanity of the testator and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses or of any of them. b) Holographic wills – The testimony of 1 witness who knows the handwriting and signature of the testator may be admitted. In the absence thereof, the testimony of an expert witness may be admitted. If the testator himself petitioned for the allowance of his holographic will, his affirmation is sufficient evidence of the genuineness and due execution of the will. 2) Contested wills: [Rule 76, Sec. 11] a) Notarial wills – All subscribing witnesses and the notary public before whom the will was acknowledged must be produced and examined. • However, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law if any or all of them either: (1) Testify against the due execution of the will; (2) Do not remember having attested to it; (3) Are otherwise of doubtful credibility. b) Holographic will – 3 witnesses who know the handwriting of the testator must be produced. In the absence thereof, the testimony of an expert witness may be resorted to. FACTS THAT SHOULD BE PROVED TO ALLOW A LOST OR DESTROYED WILL [Rule 76, Sec. 6] 1) That the will has been duly executed by the testator;

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.

ALLOWANCE OF WILL PROVED OUTSIDE THE PHILIPPINES

• •

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.

100% UP LAW

UP BAROPS 2008

Page 98 of 227

SPECIAL PROCEEDINGS
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

g. LETTERS TESTAMENTARY/ ADMINISTRATION QUALIFICATIONS
PERSONS WHO MAY BE EXECUTORS/ADMINISTRATORS 1) EXECUTOR – The person named in the will to administer the decedent’s 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. • An administrator may also be one appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such. 3) A corporation/association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward. [Art. 1060, CC] 4) The marriage of a single woman also shall not affect her authority to serve under a previous appointment. [Rule 78, Sec. 3] PERSONS WHO ARE INCOMPETENT TO SERVE AS EXECUTORS/ADMINISTRATORS [Rule 78, Sec. 1 and 2] 1) A minor. 2) A non-resident. 3) One who, in the opinion of the court, is unfit to exercise the duties of the trust by reason of: a) Drunkenness. b) Improvidence. c) Want of understanding/integrity. d) Conviction of an offense involving moral turpitude. 4) The executor of an executor cannot administer the estate of the first testator.
Executor Nominated by the testator and appointed by the court 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

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 decedent’s 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.

100% UP LAW

UP BAROPS 2008

Page 99 of 40

SPECIAL PROCEEDINGS
SPECIAL ADMINISTRATORS

REMEDIAL LAW
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

DUTIES AND GENERAL POWERS OF ADMINISTRATORS AND SPECIAL ADMINISTRATORS
DUTIES/POWERS OF THE GENERAL ADMINISTRATOR 1) To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner. 2) To examine and make invoices of the property belonging to the partnership in case of a deceased partner. 3) To make improvements on the properties under administration with the necessary court approval except for necessary repairs. 4) To maintain in tenantable repair the houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed to do so by the court. 5) To possess and manage the estate when necessary for (1) the payment of debts, and (2) for the payment of expenses of administration. 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).

100% UP LAW

UP BAROPS 2008

Page 100 of 227

SPECIAL PROCEEDINGS
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]

ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS
ACCOUNTABILITY FOR THE ENTIRE ESTATE: • The executor/administrator is accountable for the entire estate of the deceased. However, he is not accountable for properties which never came to his possession. [Rule 85, Sec. 1] • However, he would still be liable for properties which never came to his possession if through unfaithfulness to the trust or his own fault or lack of necessary action, the executor/administrator failed to recover part of the estate which came to his knowledge. • Generally, the executor/administrator is not liable for debts due the estate which are not yet paid; unless it remained uncollected because of his fault. [Rule 85, Sec. 1] • Income from realty when used by the administrator/executor: The administrator shall account for it as may be agreed upon by him and the parties interested, or adjusted by the court with their assent. If the parties do not agree upon the sum to be allowed, the same may be ascertained by the court whose determination shall be final. [Rule 85, Sec. 4] • Neglects or delays to raise or pay money: The administrator shall be liable therefore on his bond. [Rule 85, Sec. 5] EXPENSES OF ADMINISTRATION Expenses necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits.

REVOCATION OF ADMINISTRATION; DEATH/RESIGNATION/REMOVAL OF ADMINISTRATORS AND EXECUTORS
ROLE OF ADMINISTRATOR IF A WILL IS DISCOVERED • If the letters of administration have been granted because of the belief that the decedent had died intestate, and then a will is discovered and allowed by the court, the administration shall be revoked and the administrator shall surrender the letters of administration to the court and render his account of administration. • It is within the court’s discretion on WON the intestate proceeding should be discontinued and a new proceeding should be constituted. • The discovery of a will does not ipso facto nullify the administration unless the will has been proved and allowed. [De Parreño v Aranzanso] • Acts of the administrator done before his removal/resignation/revocation are valid unless proven otherwise. [Rule 82, Sec.3] GROUNDS FOR REMOVAL OF EXECUTOR/ADMINISTRATOR [Rule 82, Sec. 2] 1) Neglect to render accounts (within 1 year when the court directs). 2) Neglect to settle estate according to the ROC. 3) Neglect to perform an order/judgment of the court or a duty expressly provided by the ROC. 4) Absconding. 5) Insanity or incapacity or unsuitability to discharge the trust

h. CLAIMS AGAINST THE ESTATE STATUTE OF NON-CLAIMS
• Definition: Period fixed by the ROC for the filing of claims against the estate for examination and allowance. The Statute of Non-Claims applies only to claims that do not survive.

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, ½% in excess of P30K up to P100K, and ¼% 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).

100% UP LAW

UP BAROPS 2008

Page 101 of 40

SPECIAL PROCEEDINGS

REMEDIAL LAW
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.

EXECUTOR’S/ ADMINISTRATOR’S CLAIM AGAINST THE ESTATE
• If executor/administrator has a claim: He shall give notice to the court in writing and the court thereafter shall appoint a special administrator. [Rule 86, Sec. 8]

PROCESS FOR CLAIMS [Rule 86, Sec. 10]
1) Deliver the claim with the necessary vouchers to the clerk of court. 2) Serve a copy thereof on the executor/administrator. 3) If the claim is due, it must be supported by affidavit stating the amount due and the fact that there has been no offsets. 4) If the claim is not due or contingent, it must be accompanied by an affidavit stating the particulars thereof. 5) Executor must file his answer to the claim within 15 days after service of a copy of the claim. • Answer should contain: • Either admit or deny the claim and set forth the substance of the matters which are relied upon to support such admission or denial. • If the executor/administrator has no knowledge sufficient to enable him to admit or deny specifically, he shall state such want of knowledge. • The answer must also set forth claims which the decedent has against the claimant or else it will forever be barred. • A claim admitted by the executor/administrator may be opposed by an heir/legatee/devisee. [Rule 86, Sec. 11] • The court may refer contested claims to a commissioner. [Rule 86, Sec. 12]

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.

SOLIDARY OBLIGATION OF DECEDENT
• The claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution from the other debtor. [Rule 86, Sec. 6] If the obligation of the decedent is joint with another debtor: The claim shall be confined to the portion belonging to him. [Rule 86, Sec. 6]

APPEAL FROM JUDGMENT ON A CLAIM AGAINST ESTATE
• • Judgment is appealable like in ordinary cases. A judgment against executor/administrator shall be that he pay the amount ascertained to be due and shall not create any lien upon the property of the estate, or give the judgment creditor any priority of payment. [Rule 86, Sec. 13] The mode of appeal is record on appeal and must be filed within 30 days from notice of judgment. When the executor /administrator admits and offers to pay part of a claim, and the claimant refuses to accept the amount offered in satisfaction of his claim, if he fails to obtain a more favorable judgment, he cannot recover costs, but must pay to the executor/administrator costs from the time of the offer. Where an action commenced against the deceased for money has been discontinued and the claim embraced therein presented as in

MORTGAGE DEBT DUE FROM ESTATE
• Remedies of a creditor holding a claim against the deceased secured by a mortgage or other collateral security: [Rule 86, Sec. 7] 1) ABANDON the security and prosecute his claim against the estate and share in the general distribution of the assets of the estate. 2) FORECLOSE his mortgage or realize upon his security by action in court making the executor or administrator a party defendant and if there is judgment for deficiency, he may file a claim (contingent) against the estate within the Statute of Non-Claims. 3) RELY SOLELY ON HIS MORTGAGE and foreclose (judicial or extrajudicial) the same at anytime within the period of the Statute of Limitations but he cannot be

100% UP LAW

UP BAROPS 2008

Page 102 of 227

SPECIAL PROCEEDINGS
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.

ACTIONS BY OR AGAINST EXECUTORS/ ADMINISTRATORS

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]

CLAIMS THAT SURVIVE
• CLAIMS THAT SURVIVE - Actions that may be commenced directly against the executor and administrator. [Rule 87, Sec. 1] 1) Recovery of real/personal property (or any interest therein) from the estate. 2) Enforcement of a lien thereon. 3) Action to recover damages arising from tort.

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.

PROCEEDINGS WHERE PROPERTY ENTRUSTED BY EXECUTOR/ ADMINISTRATION TO 3RD PERSON [Rule
87, Sec. 7] • Complaint of executor/administrator against person entrusted with estate: The court may require such person entrusted with the estate to appear before it and render a full account of all property which came into his possession. Refusal to appear or give an accounting may be punished with contempt.

PROCEEDINGS ON MORTGAGE DUE ESTATE
• Executor/administrator can foreclose a mortgage belonging to the decedent. [Rule 87, Sec. 5]

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.

PAYMENT OF DEBTS OF THE ESTATE

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

100% UP LAW

UP BAROPS 2008

Page 103 of 40

SPECIAL PROCEEDINGS
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.

REMEDIAL LAW
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 decedent’s 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 latter’s 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]


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;

PAYMENT OF CONTINGENT CLAIMS [Rule
88, Sec. 4] • • CONTINGENT CLAIM – Claim that is subject to the happening of a future uncertain event. If the court is satisfied that a contingent claim duly filed is valid, it may order the executor/administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or, if the estate is insolvent, sufficient to pay a portion equal to the dividend of the other creditors. Requisites for the estate to be retained to meet contingent claims:

100% UP LAW

UP BAROPS 2008

Page 104 of 227

SPECIAL PROCEEDINGS
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.

ORDER OF PAYMENT OF DEBTS
• Before the expiration of the time limited for the payment of debts (1 year, but may be extended), the court shall order the payment thereof. [Rule 88, Sec. 11] The court may suspend the order for the payment of debts or may order the distribution if an appeal is taken, among the creditors whose claims are definitely allowed, leaving in the hands of the executor/administrator sufficient assets to pay the claim disputed and appealed. [Rule 88, Sec. 12]

CONTRIBUTIVE SHARE OF DEVISEES/LEGATEES/HEIRS IN POSSESSION OF PORTIONS OF ESTATE FOR DEBTS
• If heirs have taken possession of portions of the estate before the debts have been settled, they shall become liable to contribute for the payment of debts and expenses, and the court may, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute. [Rule 88, Sec. 6]

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.

PAYMENT IF ESTATE INSOLVENT OR ASSETS INSUFFICIENT
• If insufficient estate to pay all debts: The executor/administrator shall pay the debts according to the concurrence and preference of credits provided by Art. 1059 and 2239-2251, CC. [Rule 88, Sec. 7] After following the order of preference of credits, if all the creditors belonging to that class cannot be paid in full, then all of them will suffer a reduction in proportion to that creditors claim No creditor of any one class shall receive any payment until those of the preceding class are paid. [Rule 88, Sec. 8] Estate of an insolvent non-resident disposed of: His estate in the Philippines shall be so disposed of that his creditors in and outside the Philippines may receive an equal share, in proportion to their respective credits. [Rule 88, Sec. 9] Claim proven outside the Philippines against an insolvent resident’s estate paid: Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance therein may be added to the list of claims in the Philippines against the estate of an insolvent resident and the estate will be distributed equally among those creditors. The claims of foreign creditors against insolvent non-residents and against insolvent residents would not be able to recover from the estate if there is no reciprocity with that creditor’s country granting the same benefit to Filipinos. [Rule 88, Sec. 10] • However, the benefit of this and the preceding sections shall not be extended to the creditors in another country if the

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.

CONVEYANCE OF REALTY WHICH DECEASED CONTRACTED TO CONVEY DURING LIFETIME
AUTHORIZATION OF CONVEYANCE OF REALTY WHICH DECEASED CONTRACTED TO CONVEY [Rule 88, Sec. 8] • If the decedent was in his lifetime under contract, binding in law, to deed real property on an interest therein, the court may authorize the executor/administrator to convey such property according to such contract, or with

100% UP LAW

UP BAROPS 2008

Page 105 of 40

SPECIAL PROCEEDINGS
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.

REMEDIAL LAW
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.

REMEDIES AGAINST JUDGMENT OF PARTITION
• Partition may be set aside only if interested party is left out by reason of circumstances beyond his control or mistake/inadvertence not imputable to negligence. Remedies: Motion to reopen within the 30-day reglementary period; then appeal from the order of denial (the latter is not an independent action. • Since it is a proceeding in rem, all interested persons have constructive notice, and jurisdiction of probate court is exclusive. • Non-distribution of estate is not a ground for reopening. Remedy for such case is a motion for execution, or, if beyond the reglementary period, a separate action for recovery of shares.

CONVEYANCE OF REALTY WHICH DECEASED HELD IN TRUST

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.

PARTITION AND DISTRIBUTION OF ESTATE

WHEN ORDER FOR DISTRIBUTION OF RESIDUE IS MADE

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.

PROCEDURE [Rule 90, Sec. 1, 2 and 4]
1) There should be an application by the executor/administrator or any person interested in the estate. 2) The requirements for notice and hearing must be fulfilled. 3) Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated. 4) The final order of the court as to questions on advancement shall be binding on the person raising the questions and on the heir.

100% UP LAW

UP BAROPS 2008

Page 106 of 227

SPECIAL PROCEEDINGS III. GUARDIANSHIP

REMEDIAL LAW
proceedings may be served. [Gorostiaga v. Sarte]

PROCEDURE FOR GUARDIANSHIP UNDER RULES 92-97
Petition for the appointment of a guardian

SCOPE AND APPLICABILITY
• Rules 92-97 have been amended by AM-03-0205-SC (April 1, 2003). Guardianship of incompetents who are not minors continues to be under the jurisdiction of the regular courts and governed by Rules 92-97. Guardianship of minors, however, is now governed by AM-0302-05-SC. [Regalado] In a guardianship case, if an issue arises as to who has the better right/title to the properties conveyed in the guardianship proceedings, the issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. [Parco v. CA (1982)] However, where the ward’s right/title to the property is clear and indisputable, the guardianship court may issue an order directing its delivery/return. [Paciente v. Dacuycuy (1982)]

Court order fixing the hearing of the petition

Notice of the hearing

Hearing and appointment of the guardian

INCOMPETENTS [Rule 92, Sec. 2]
Service of judgment on the local civil registrar

Filing of bond by the guardian

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 ward’s person and property. BASIS • It is the State’s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-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 incompetent’s 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.

TRANSFER OF VENUE [Rule 92, Sec. 3]
• The court taking cognizance of a guardianship proceeding may transfer the same to the court of another province/municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence. The latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees.

PETITION FOR APPOINTMENT OF A GUARDIAN
WHO MAY PETITION 1) For resident incompetents: [Rule 93, Sec. 1] a) Any relative/friend/person on behalf of the incompetent who has no parent or lawful guardian; b) Health Secretary, in favor of: (1) an insane person who should be hospitalized; (2) an isolated leper. 2) For non-resident incompetents: [Rule 93, Sec. 6] a) Any relative/friend; b) Anyone interested in the incompetent’s estate. • If the interested person is a creditor and mortgagee of the ward’s estate, he cannot be appointed guardian of the

100% UP LAW

UP BAROPS 2008

Page 107 of 40

SPECIAL PROCEEDINGS
ward’s person and property. No man can serve two masters. [Garchitorena v. Sotelo] • PETITION’S CONTENTS [Rule 93, Sec. 2] 1) Jurisdictional facts; 2) Incompetency rendering the appointment necessary/convenient; 3) Names/ages/residences of the incompetent’s relatives, and of the persons having him in their care; 4) Estate’s 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 guardian’s appointment is good until set aside; and, despite and appeal therefrom, the guardian can do what is necessary (under court’s 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]

GUARDIAN’S 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 estate’s inventory; 2) To faithfully execute the duties of his trust, to manage and dispose of the estate according to ward’s best interests, and to provide for the ward’s 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 bond’s 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 ward’s 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)] GUARDIAN’S 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]

GUARDIAN’S GENERAL POWERS AND DUTIES
1) To pay the ward's just debts out of: a) the personal estate and the real estate’s income; b) if insufficient, the real estate (upon obtaining court order). [Rule 96, Sec. 2] 2) To settle all the ward’s accounts; demand/sue/receive for all debts due the ward, or for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; and appear for the ward in all actions/proceedings, unless another person is appointed for that purpose. [Rule 96, Sec. 3] 3) To manage the ward’s estate frugally and without waste; apply the income/profits to the comfortable and suitable maintenance of the ward and his family; and if the income/profits are insufficient, sell/encumber the real estate (upon court authorization). [Rule 96, Sec. 4] • If the guardian delegates his duties to another, he shall be responsible for the

100% UP LAW

UP BAROPS 2008

Page 108 of 227

SPECIAL PROCEEDINGS
other’s 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 ward’s 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 ward’s relatives, and a careful investigation as to the proposed action’s necessity/propriety. [Rule 96, Sec. 5] Upon complaint of the guardian/ward or any person interested in the ward’s estate, that anyone is suspected of having embezzled/concealed/conveyed away any of the ward/estate’s 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 ward’s 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]

REMEDIAL LAW
2) If it appears that it is for the ward’s 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 ward’s 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 ward’s 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 petition’s prayer as the ward’s 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 guardian’s original bond shall stand as security for the proper appropriation of the sale’s 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/encumbrance’s 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 ward’s 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 guardian’s sale may subsequently be annulled by the court. [Mendoza v. Labrador] However, the cancellation of the guardian’s authority to sell will not affect the buyer’s rights. [Margate v. Rabacal]

5)

6)

7)

SELLING/ENCUMBERING THE WARD’S PROPERTY
PETITION [Rule 95, Sec. 1] • Grounds for the petition: 1) If the estate’s income is insufficient to maintain the ward and his family;

100% UP LAW

UP BAROPS 2008

Page 109 of 40

SPECIAL PROCEEDINGS
• Appeal is the proper remedy against a court order authorizing the sale of the ward’s property. [Lopez v. Teodoro (1950)] •

REMEDIAL LAW
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-resident’s estate. [Rule 93, Sec. 6]

GUARDIANSHIP’S 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 (court’s 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 ward’s 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 guardian’s 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 guardianship’s 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]

GUARDIANSHIP OF NON-RESIDENT INCOMPETENTS
• The guardian of a nonresident’ estate has management of all the ward’s estate within the Philippines. [Rule 96, Sec. 1] Only the court which appointed the nonresident’s guardian has jurisdiction over the guardianship. [Rule 96, Sec. 1]

100% UP LAW

UP BAROPS 2008

Page 110 of 227

SPECIAL PROCEEDINGS IV. TRUSTEES
• •

REMEDIAL LAW
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. Beneficiary’s 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.

PROCEDURE FOR APPOINTMENT OF TRUSTEES UNDER RULE 98
Allowance of the instrument creating the trust


Petition by the executor/administrator or the person appointed as trustee in the instrument

Appointment of trustee by the court

Notice to all interested parties

Filing of bond by the trustee

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)]

VENUE [Rule 98, Sec.1]
• If a trustee is necessary to carry into effect a will/instrument, the trustee shall be appointed by the RTC where: 1) the will was allowed; or 2) the property was located.

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.

TRUSTEE’S 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]

SCOPE AND APPLICABILITY

SUCCESSOR TRUSTEES • If the trustee declines/resigns/dies or is removed before the trust’s 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 trustee’s executor/administrator) is not required to accept the trust. [Rule 98, Sec. 2]

100% UP LAW

UP BAROPS 2008

Page 111 of 40

SPECIAL PROCEEDINGS
TRUSTEES APPOINTED ABROAD • TERRITORIALITY OF TRUSTEE’S 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

REMEDIAL LAW
TRUSTEE’S COMPENSATION
• If the trustee’s compensation is not determined in the instrument creating the trust, it shall be fixed by the court. [Rule 98, Sec. 7]

TRUSTEE’S REMOVAL/RESIGNATION [Rule
98, Sec. 8] • Grounds for removal of a trustee: 1) If essential to the interests of the party petitioning the removal; • Requires petition of a beneficially interested person, notice to trustee and hearing. 2) If trustee becomes insane or otherwise incapable/unsuitable of discharging the trust; • Requires notice to all interested parties. 3) If trustee assumes to be possessing in his own right and thus renounces the trust. [Martinez v. Grano] • General Rule: A trustee cannot acquire the trust estate by prescription because for the purpose of prescription, the possession of the property by the trustee is not an adverse possession, but only a possession in behalf of the owner of the same. [Palma v. Cristobal] • Exception: If there is an open, clear and unequivocal repudiation of the trust, and the beneficiary knows of the repudiation. [Salinas v. Tuazon] A trustee may resign if it is proper for the court to allow him, whether the trustee was ppointed by the court or by a will.

Petition filed in the RTC of the province where the land is situated

Notice to all interested parties

Trustee is ordered by the court to apply for appointment

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.

TRUSTEE’S BOND [Rule 98, Sec.5]
• Before entering his duties, a trustee must file a bond with the COC in an amount fixed by the court, payable to the Philippine government and sufficient and available to protect any party in interest. Failure to file bond is considered as decline/resignation of the trust. Court may exempt from giving bond: 1) A trustee under a will, if the testator so directed/requested; or 2) Any trustee, if all persons beneficially interested are of full age and request the exemption. The court may cancel the bond exemption anytime; the trustee shall then file the bond.

• •

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) Executor/ Administrator Holds an office of trust Duties are fixed and/or limited by law

TRUSTEE’S DUTIES
• Conditions upon the bond, WON written: [Rule 98, Sec. 6] 1) To make and return the estate’s 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 trust’s expiration. • It is the trustee’s duty to deliver the properties to the beneficiary free from all liens and encumbrances. [De Leon v. Molo-Peckson (1962)]

[Araneta v. Perez (1962)]

ESTATE’S SALE/ENCUMBRANCE [Rule 98,
Sec. 9] • If estate’s 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 guardian’s sale/encumbrance of a ward’s properties.

100% UP LAW

UP BAROPS 2008

Page 112 of 227

SPECIAL PROCEEDINGS V. ADOPTION

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.

DEFINITION [Sec. 3, Rule on Adoption]
1) CHILD – Person below 18 years of age at the time of the filing of the petition for adoption. 2) CHILD LEGALLY AVAILABLE FOR ADOPTION – Child who was in/voluntarily committed to DSWD or to a duly licensed and accredited child-placing/child-caring agency, freed of the parental authority of his biological parents, or in case of rescission of adoption, his guardian/adopter. 3) VOLUNTARILY COMMITTED CHILD – One whose parents knowingly and willingly relinquish parental authority over him in favor of DSWD. 4) INVOLUNTARILY COMMITTED CHILD – One whose parents have been permanently and judicially deprived of parental authority over him due to abandonment; substantial/continuous/repeated neglect and abuse; or incompetence to discharge parental responsibilities. 5) FOUNDLING – 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 child’s 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 person’s 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

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 state’s 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

Order of hearing by the court

Child and home study reports by the social worker

Hearing on the petition for adoption

Supervised trial custody

Adoption decree issued by the court

SCOPE AND APPLICABILITY
• The Rule on Adoption [AM-02-6-02-SC (July 31, 2002)] expressly repealed Rules 99 and 100. [Sec. 25, Rule on Adoption] RA 8552 (Domestic Adoption Act) governs the domestic adoption of Filipino children. [Sec. 1, Rule on Adoption]

OBJECTIVES [Sec. 2, Rule on Adoption]

100% UP LAW

UP BAROPS 2008

Page 113 of 40

SPECIAL PROCEEDINGS
1) The child’s best interest is the paramount consideration in the child’s care/custody/adoption. 2) The State shall provide alternative protection and assistance to foundlings, neglected, orphaned and abandoned children.

REMEDIAL LAW
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.

QUALIFIED ADOPTERS [Sec. 4, Rule on
Adoption] 1) Any Filipino citizen: a) of legal age; b) in possession of full civil capacity and legal rights; c) of good moral character; d) has not been convicted of any crime involving moral turpitude; e) who is emotionally and psychologically capable of caring for children; f) at least 16 years older than the adoptee; • Exception: when the adopter is: (1) the adoptee’s biological parent; (2) the spouse of the adoptee’s parent. g) who is in a position to support and care for his children in keeping with the means of the family. 2) Any alien: a) possessing the same qualifications as Filipinos; b) whose country has diplomatic relations with the Philippines; c) who has been living in the Philippines for at least 3 continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered; d) certified by his diplomatic/consular office to have the legal capacity to adopt in his country; e) whose government allows the adoptee to enter his country as his adopted child. Residency and certification requirements on alien may be waived for: (1) a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity/affinity; (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 a relative within the 4th degree of consanguinity/affinity of the Filipino spouse. 3) The guardian with respect to the ward, after the termination of the guardianship and clearance of his financial accountabilities. • JOINT ADOPTION BY SPOUSES • General rule: Husband and wife shall jointly adopt. • 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. • If the spouses jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

VENUE [Sec. 6, Rule on Adoption]
• Family Court of the province/city where the prospective adoptive parents reside.

PETITION FOR ADOPTION
ALLEGATIONS COMMON TO ALL PETITIONS [Sec. 7, Rule on Adoption] 1) Adoptee’s first name, surname or names, age and residence as shown by his birth record, baptismal/foundling certificate and school records; 2) That the adoptee is not disqualified by law; 3) Adoptee’s estate’s value and character; 4) First name, surname or names by which the adoptee is to be known and registered in the Civil Registry. SPECIFIC ALLEGATIONS Adoption] [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 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

If petition also prays for change of name

c)

100% UP LAW

UP BAROPS 2008

Page 114 of 227

SPECIAL PROCEEDINGS
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

REMEDIAL LAW
• If the petition and attachments are sufficient in form and substance, the court shall issue an order. Order’s contents: 1) Adoptee’s registered name in the birth certificate, and the names by which the adoptee has been known (to be stated in the caption); 2) Petition’s purpose; 3) Complete name which the adoptee will use if the petition is granted; 4) Hearing’s date and place of hearing (within 6 months from the date of the order’s 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 adoptee’s biological parents. If a change in the adoptee’s name is prayed for, notice to OSG is mandatory.

c)

d)

If petition for adoption of foundling, abandoned, dependent or neglected children

a)

b)

c)

d)

• PETITION’S ANNEXES [Sec. 11, Rule on Adoption] 1) Birth/baptismal/foundling certificate and school records, showing adoptee’s name, age and residence; 2) Affidavit of consent of: a) The adoptee, if 10 years of age or over; b) The child’s biological parents or legal guardian, child-placement/child-caring agency or proper government agency; c) The adopter’s and the adoptee’s legitimate and adopted children who are 10 years of age or over; d) The adopter’s illegitimate children living with him who are 10 years of age or over; e) The adopter’s and the adoptee’s 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 adoptee’s biological parents, if any.

CHILD AND HOME STUDY REPORTS [Sec.
13, Rule on Adoption] • The social worker shall verify with the Civil Registry the adoptee’s real identity and registered name. If the adoptee’s birth was not registered, the social worker shall register the adoptee and secure a certificate of foundling or late registration. The social worker shall establish that: 1) the child is legally available for adoption; 2) the documents in support thereof are valid and authentic; 3) that the adopter has sincere intentions; 4) that the adoption shall inure to the child’s best interests. If the adopter is an alien, the home study report must show: 1) his legal capacity to adopt; 2) that his government allows the adoptee to enter his country as his adopted child in the absence of the certification required under Sec. 7(b), RA 8552. If the social worker finds that there are grounds to deny the petition, he shall make the proper recommendation to the court, with copy furnished the petitioner.

ORDER OF HEARING [Sec. 12, Rule on
Adoption]

HEARING [Sec. 14, Rule on Adoption]
• Upon satisfactory proof of publication and jurisdiction, the court shall hear the petition.

100% UP LAW

UP BAROPS 2008

Page 115 of 40

SPECIAL PROCEEDINGS
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.

REMEDIAL LAW
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 adoptee’s 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.

SUPERVISED TRIAL CUSTODY [Sec. 15, Rule
on Adoption] • Before issuance of the adoption decree, the court shall give the adopter trial custody of the adoptee for at least 6 months. Within this period, the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. The trial custody shall be monitored by the social worker who submitted and prepared the case studies. During the period, temporary parental authority shall be vested in the adopter. • Where the trial custody had not yet begun or had already been completed at the time of a quasi-delict committed by the child to be adopted, the adopting parents cannot assume any liability therefor. Accordingly, his natural parents should be joined as indispensable parties to the suit for damages. [Tamargo v. CA (1992)] The court may reduce the period or exempt the parties if it finds that the same shall be for the adoptee’s best interests. General rule: An alien adopter must complete the 6-month trial custody. • 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 latter’s 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.

CONFIDENTIALITY OF PROCEEDINGS AND RECORDS [Sec. 18, Rule on Adoption]
• 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 adoptee’s best interests, the court may order the necessary information to be released, restricting the purposes for which it may be used.

ADOPTION’S 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 child’s best interests.

ADOPTION DECREE [Sec. 16, Rule on
Adoption] • If the supervised trial custody is satisfactory to the parties, the court is convinced from the trial custody report and the evidence that the adoption shall redound to the adoptee’s best interests, an adoption decree shall be issued. The adoption decree shall take effect as of the date the original petition was filed, even if the petitioners die before its issuance.

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 adoptee’s 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]

ADOPTION DECREE’S CONTENTS

100% UP LAW

UP BAROPS 2008

Page 116 of 227

SPECIAL PROCEEDINGS
• • 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.

REMEDIAL LAW
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 petition’s allegations are true, it shall order the rescission of adoption. • The court shall order that: 1) The biological parents’ parental authority, or the DSWD’s 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.

QUALIFIED ADOPTEES [Sec. 29, Rule on
Adoption] • Only a child legally available for domestic adoption may be the subject of inter-country adoption.

VENUE [Sec. 28, Rule on Adoption]
1) Family Court having jurisdiction over the place where the child resides or may be found. 2) Directly with the Inter-Country Adoption Board.

PETITION FOR ADOPTION
PETITION’S CONTENTS [Sec. 30, Rule on Adoption] 1) Age of the petitioner and of the child to be adopted, showing that petitioner is at least 27 years of age and at least 16 years older than the child at the time of application; • Exception: If the petitioner is the child’s biological parent or the spouse of such parent. 2) If petitioner is married, the name of the spouse who must be joined as co-petitioner; • Exception: If the adoptee is the spouse’s legitimate child. 3) Petitioner’s capacity to act and assume all rights and responsibilities of parental authority under his national laws, and that he has undergone the appropriate counseling from an accredited counselor in his country; 4) Non-conviction of crimes involving moral turpitude; 5) Eligibility to adopt under his national law; 6) That he can provide the proper care and support and instill the necessary moral values and example to all his children, including the child to be adopted; 7) That he agrees to uphold the basic rights of the child; 8) That he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency; and that adoption of a Filipino child is allowed under his national laws; 9) That he possesses all the qualifications and none of the disqualifications provided in this Rule, in RA 8043 and other Philippine laws. PETITION’S ANNEXES [Sec. 31, Rule on Adoption] 1) Petitioner’s birth certificate; 2) Marriage contract, divorce decree or judgment dissolving the marriage; 3) Sworn statement of consent of petitioner’s biological/adopted children above 10 years of age; 4) Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; 5) Income tax returns or any authentic document showing the petitioner’s current financial capability; 6) Police clearance issued within 6 months before the filing of the petition;

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.

OBJECTIVES [Sec. 27, Rule on Adoption]
1) To consider inter-country adoption as an alternative means of child care, if the child

100% UP LAW

UP BAROPS 2008

Page 117 of 40

SPECIAL PROCEEDINGS
7) Character reference from the local church/minister, the petitioner’s 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.

REMEDIAL LAW VI. HOSPITALIZATION OF INSANE PERSONS

PROCEDURE IN THE HOSPITALIZATION OF INSANE PERSONS
Petition for commitment filed in RTC

COURT’S 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

Hearing on the petition

Judgment granting/denying the petition

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 FOR COMMITMENT [Rule 101, Sec.
1 and 5]

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.

COURT ACTION ON THE PETITION [Rule
101, Sec. 2-3] 1) The court shall fix a date and place for hearing where all concerned may appear to contest the petition. 2) Copies of the notice of hearing shall be served upon: a) The person alleged to be insane; and b) The one having charge of him, or on such of his relatives residing in the province/city as the judge may deem proper. 3) The court shall order the sheriff to produce the alleged insane person (if possible) on the date of hearing. 4) Upon satisfactory proof that the commitment is necessary and that his relatives are unable to take proper custody and care of him, the court shall order his commitment in a hospital/asylum.

100% UP LAW

UP BAROPS 2008

Page 118 of 227

SPECIAL PROCEEDINGS
5) The court shall make proper provisions for the custody of the ward’s property until a guardian is properly appointed.

REMEDIAL LAW VII. ABSENTEES

BURDEN TO PROVE INSANITY

PROCEDURE FOR DECLARATION OF ABSENCE UNDER RULE 107
Petition for declaration of absence

To prove insanity, the burden is on the party who alleges insanity.

WHEN THE PERSON IS CURED

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.

Court order fixing the hearing for petition

Notice and publication of the notice of hearing

Hearing and appointment of administrator/trustee

Termination of administration/trusteeship

SCOPE AND APPLICABILITY
• Rule 107 is proper only where the absentee has properties to be administered. [Regalado] • Rationale: The declaration of absence made according to CC has the sole purpose of enabling the taking of necessary precautions for the administration of the absentee’s estate. [Jones v. Hortiguela (1937)] Note: However, Art. 41-43, FC and Rule 131, Sec. 3 (w)(4) provide that if the spouse was absent for 4 or 2 years and the spouse present has a well-founded belief that the absent spouse is already dead, the spouse present must institute a summary proceeding for the declaration of presumptive death, for purposes of contracting a subsequent marriage. [Regalado]

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 agent’s power has expired, any interested party may petition for the appointment of the absentee’s representative.

PETITION FOR DECLARATION OF ABSENCE AND APPOINTMENT OF ADMINISTRATOR/TRUSTEE
WHEN TO PETITION [Rule 107, Sec. 2; Art. 384, CC] 1) After 2 years: a) from the disappearance and without any news about the absentee; or b) since the receipt of the last news about him; 2) After 5 years, if he left an administrator of his property. WHO MAY PETITION [Rule 107, Sec. 2; Art. 385, CC] 1) Spouse present;

100% UP LAW

UP BAROPS 2008

Page 119 of 40

SPECIAL PROCEEDINGS
2) Heirs instituted in a will; 3) Relatives who will succeed by intestacy; 4) Those who have some (over the absentee’s property) subordinated to the condition of his death. PETITION’S 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 absentee’s property; 4) Absentee’s properties.

REMEDIAL LAW VIII. WRITS A. HABEAS CORPUS
PROCEDURE FOR ISSUANCE OF THE WRIT OF HABEAS CORPUS UNDER RULE 102
Petition alleging illegal confinement/detention

Issuance of the writ by a court with jurisdiction

NOTICE AND PUBLICATION [Rule 107, Sec.
4] • • When a petition is filed, the court shall fix the hearing’s date and place. Copies of the notice of hearing shall be served upon the known interested persons, at least 10 days before the hearing. Publish the notice of hearing once a week for 3 consecutive weeks before the hearing, in a newspaper of general circulation in the province/city where the absentee resided.

Service by leaving the original with the person to whom the writ is directed and preserving a copy

Hearing by the court

Recommitment, bail or discharge of the detained

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 petition’s allegations, the court shall grant the petition and appointing the absentee’s representative/trustee/administrator. [Rule 107, Sec. 6] The court shall safeguard the absentee’s rights and interests and shall specify the representative/trustee/administrator’s 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. [Bouvier’s 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 absentee’s 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.

SCOPE AND APPLICABILITY
• HC writ extends to: 1) All cases of illegal confinement/detention by which any party is deprived of his liberty. [Cruz v. CA (2000)] 2) If the rightful custody of a person is withheld from the one entitled to it. [Ilusorio v. Bildner (2000)]

100% UP LAW

UP BAROPS 2008

Page 120 of 227

SPECIAL PROCEEDINGS
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 person’s 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 TRIAL’S 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

REMEDIAL LAW
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 writ’s efficiency), or lack thereof.

HC WRIT’S ISSUANCE
• General rule: If it appears that the writ should issue, the COC issues the writ under the court’s 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 court’s 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 WRIT’S SERVICE

100% UP LAW

UP BAROPS 2008

Page 121 of 40

SPECIAL PROCEEDINGS
• 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]

REMEDIAL LAW
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 WRIT’S 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

RECOMMITMENT, BAIL OR DISCHARGE
if unlawfully restrained if lawfully committed for an offense court shall order 1) if offense is punishable discharge from by death - detained confinement; but person cannot be discharge is not effective released/discharged. until copy of order is 2) if offense is NOT served on detaining punishable by death person. If detaining either: person does not desire to a) recommit to prison; appeal, detained person b) admit to bail. shall be released. [Rule 102, Sec. 15] [Rule 102, Sec. 14]

HC WRIT’S 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.

PENALTY FOR REFUSING/DISOBEYING THE HC WRIT [Rule 102, Sec. 16]
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.

HEARING ON THE RETURN [Rule 102, Sec.
12] • • When the writ is returned, the court must immediately hear the case. Hearing may be adjourned for good causes, with the court making provisions for the safekeeping of the detained person. If the detained person is not produced, the court must be satisfied of the gravity of the alleged sickness/infirmity. In the hearing, the court shall disregard matters of form and technicalities of the authority/order of commitment.

HC WRIT AND CERTIORARI
• The writs of HC and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. [Regalado] • Rationale: An HC writ reaches the body and the jurisdictional matters, but not the record. A certiorari writ reaches the record, but not the body. Hence, the two may be used together for review purposes.

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 prisoner’s detention, petitioner must allege and prove new matter that tends to invalidate the

100% UP LAW

UP BAROPS 2008

Page 122 of 227

SPECIAL PROCEEDINGS

REMEDIAL LAW
HD WRIT – An independent remedy to protect the right to privacy, especially the right to informational privacy. Rationale: • The privacy of one’s person/family/home is a sanctified right in the history of constitutional law. A person’s 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 individual’s 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

Amparo administrative Amparo libertad

C. WRIT OF HABEAS DATA
WRIT OF AMPARO VIS-À-VIS WRIT OF HABEAS DATA 100% UP LAW UP BAROPS 2008 Page 123 of 40

SPECIAL PROCEEDINGS
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

REMEDIAL LAW
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

Contents of petition Xxx Xxx Xxx Xxx Xxx

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

Xxx Issuance of writ Xxx Xxx Xxx

* 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, but within 10 days from issuance

Penalty for refusing to issue writ Service of writ

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

Return on the writ Xxx Xxx 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

Xxx Xxx Xxx

100% UP LAW

UP BAROPS 2008

Page 124 of 227

SPECIAL PROCEEDINGS
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

REMEDIAL LAW

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

Effect of failure to file return 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 Interim reliefs

xxx xxx

Xxx Xxx

xxx xxx

Xxx Xxx Availability of interim reliefs to respondent Contempt Burden of proof Required standard of diligence Xxx Xxx

xxx 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

SAME xxx xxx xxx xxx

Judgment Xxx

SAME * SAME

Xxx Return of service

* Upon judgment's finality, enforce within 5 days Executing officer must make return within 3 days from enforcement

100% UP LAW

UP BAROPS 2008

Page 125 of 40

SPECIAL PROCEEDINGS
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

REMEDIAL LAW
* Notice and hearing on the executing officer's return SAME

Xxx Archiving and revival of cases Xxx

* Appeal has same priority as HC and amparo cases Xxx

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

Substantive rights ROC application

SAME SAME

100% UP LAW

UP BAROPS 2008

Page 126 of 227

SPECIAL PROCEEDINGS IX. CHANGE OF NAME
VENUE [Rule 103, Sec. 1]

REMEDIAL LAW

A. CHANGE OF NAME UNDER RULE 103
PROCEDURE IN CHANGE OF NAME UNDER RULE 103
Petition for change of name

In the RTC of the province where the petitioner has been residing for years prior to the filing of the petition.

PETITION’S CONTENTS [Rule 103, Sec. 2]
• A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf. It shall contain: [Secan Kok v. Republic (1973)] 1) That the petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of such filing; 2) The cause for which the change of the petitioner's name is sought; 3) The name asked for; 4) All names by which petitioner is known. All aliases of the applicant must be set forth in the petition’s title; otherwise, such defect would be fatal even if said aliases are contained in the body of the petition. [Go Chiu Beng v. Republic (1972)] Verification is a formal, not a jurisdictional requirement. The lack of verification is not a ground for dismissing the petition. [Oshito v. Republic] Petition should be filed by applicant upon reaching the age of majority. [Regalado]

Court order fixing the date and place for hearing

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

Hearing on the petition


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

VALID GROUNDS FOR CHANGE OF NAME
1) When the name is ridiculous, dishonorable, or extremely difficult to write/pronounce. 2) Consequence of a change in status (e.g. legitimation). 3) To avoid confusion. [Alfon v. Republic (1980)] 4) Having continuously used and been known since childhood by a Filipino name, unaware of his/her alien parentage. [Ang Chay et al. v. Republic (1970)] 5) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody. [Uy v. Republic (1965)]

Includes change in surname

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 one’s first name (applies to both Rule 103 and RA 9048). [Silverio v. Republic (2007)]

COURT ACTION [Rule 103, Sec. 3]
• The court shall promulgate an order: 1) Reciting the purpose of the petition; 2) Fixing a date and place of hearing; 3) Directing that a copy of the order be published before hearing at least once a week for 3 successive weeks in a newspaper of general circulation. The date for hearing shall not be within 30 days prior to an election nor within 4 months after the last publication of notice of hearing.

WHO MAY OPPOSE PETITION [Rule 103,
Sec. 4] 1) Any interested person; 2) The Solicitor General (OSG) or the proper provincial/city fiscal shall appear on behalf of the Republic of the Philippines. The OSG

100% UP LAW

UP BAROPS 2008

Page 127 of 40

SPECIAL PROCEEDINGS
must be notified by service of a copy of the petition.

REMEDIAL LAW
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.

WHEN CHANGE OF NAME MAY BE GRANTED [Rule 103, Sec. 5]
• If there is satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name by changed in accordance with the prayer of the petition. Judgments/orders allowing the change of name shall be furnished the civil registrar of the municipality/city where the court issuing the same is situated, who shall forthwith enter the same in the Civil Register.

CLERICAL OR TYPOGRAPHICAL ERROR
[RA 9048, Sec. 2(3)] • Definition: A mistake committed in the performance of clerical work in writing/copying/transcribing/ typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected/changed only by reference to other existing record/s: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner.

DISCREPANCY IN PETITION AND PUBLISHED ORDER

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]

WHO MAY FILE PETITION [RA 9048, Sec. 3]
• Any person having direct and personal interest in the correction of a clerical/typographical error in an entry and/or change of first name or nickname in the civil register.

B. CHANGE OF NAME UNDER RA 9048
PROCEDURE IN CHANGE OF NAME UNDER RA 9048
Petition with the civil registrar or consul general

VENUE UNDER RA 9048 [RA 9048, Sec. 3]
1) Local Civil Registry of the city/municipality where the record being sought is kept. 2) Local Civil Registry where the interested party is presently residing/domiciled: Only if the petitioner migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed. In this case, the 2 local civil registrars concerned will communicate to facilitate the processing of the petition. 3) Philippine consulates: Only in cases of Philippine citizens who are residing/domiciled in foreign countries. • All petitions for correction of errors/change of first names/nicknames may be availed of only once.

Publication of the petition at least once a week for 2 consecutive weeks

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

VALID GROUNDS FOR CHANGE OF FIRST NAME/NICKNAME UNDER RA 9048
Transmission by the civil registrar of a copy of his decision (together with the records of the proceeding) to the Civil Registrar General

[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

PETITION’S CONTENTS UNDER RA 9048 100% UP LAW UP BAROPS 2008 Page 128 of 227

SPECIAL PROCEEDINGS
[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.

REMEDIAL LAW
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.

ANNEXES TO THE PETITION [RA 9048,
Sec. 5] 1) A certified true machine copy of the certificate or of the page of the registry book containing the entries sought to be corrected/changed. 2) At least 2 public/private documents showing the correct entries upon which correction/change shall be based 3) Other documents which the petitioner or the city/municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. 4) Certification from appropriate law enforcement agencies that the petitioner has no pending case or no criminal record.

PUBLICATION REQUIREMENT [RA 9048,
Sec. 5] • The petition must be published at least once a week for 2 consecutive weeks in a newspaper of general circulation.

COPIES OF PETITION TO BE FILED
[RA 9048, Sec. 5] 1) For the city/municipal civil registrar, or the consul general; 2) For the Office of the Civil Registrar General. 3) For the petitioner.

DUTIES OF THE CITY/MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL
[RA 9048, Sec. 6] 1) Examine the petition and its supporting documents. 2) Post the petition in a conspicuous place provided for that purpose for 10 consecutive days after he finds the petition and its supporting documents sufficient in form and substance. 3) Act on the petition and render a decision not later than 5 working days after the completion of the posting and/or publication requirement. 4) Transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within 5 working days from the date of the decision.

DUTIES AND POWERS OF THE CIVIL REGISTRAR GENERAL [RA 9048, Sec. 7]

100% UP LAW

UP BAROPS 2008

Page 129 of 40

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

REMEDIAL LAW
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

Petition is filed by person desiring to change his name

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.

Court order fixing the date and place for hearing

WHO MAY FILE PETITION [Rule 108, Sec. 1]
• 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.

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

VENUE [Rule 108, Sec. 1]
• RTC of the place where the corresponding civil registrar is located.

ENTRIES SUBJECT TO CANCELLATION OR CORRECTION [Rule 108, Sec. 2]
Hearing on the petition

Judgment granting/denying the petition. Copy of the judgment shall be served upon the civil registrar, who shall annotate the same

RULE 103, 108 AND RA 9048 COMPARED
Cancellation/correctio n of entries in the civil registry (Rule 108) 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

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)

COURT ORDER AFTER FILING OF PETITION
1) Fix the date and place for the hearing. 2) Cause reasonable notice to be given to the persons named in the petition. 3) Cause the order to be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province. 4) Make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of parties’ rights pending such proceedings. 5) Grant/deny the petition. In either case, a certified copy of the judgment shall be served

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

100% UP LAW

UP BAROPS 2008

Page 130 of 227

SPECIAL PROCEEDINGS
upon the civil registrar concerned, who shall annotate the same.

REMEDIAL LAW XI. APPEALS IN SPECIAL PROCEEDINGS

ACTIONS TO BE TAKEN TO OPPOSE THE PETITION [Rule 108, Sec. 5]
• 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.

APPEALABLE ORDERS/JUDGMENTS [Rule
109, Sec. 1] 1) If it dis/allows a will; 2) If it determines who are the lawful heirs or the distributive shares; 3) If it wholly or partially dis/allows a claim against a decedent’s estate, or any claim presented on the estate’s behalf in offset to a claim against it; 4) If it settles the account of an executor/administrator/trustee/guardian; 5) If it constitutes a final determination in the lower court of the rights of the party appealing, in proceedings relating to estate settlement or administration of a trustee/guardian; • Exception: Appointment of a special administrator is not appealable. 6) If it is the final order/judgment rendered in the case, and affects the substantial rights of the person appealing. • Exception: Orders granting/denying a MFR/MNT. • While some of the items in Rule 109, Sec.1 may be considered as interlocutory under ordinary civil actions, the nature of special proceedings declares them as appealable and as exceptions to Rule 41, Sec. 2, [Regalado] Since multiple appeals are contemplated under this provision, appeals in special proceedings necessitate a record on appeal as the original record should remain with the trial court. [Regalado] In special proceedings, the period of appeal is 30 days, a notice of appeal and a record on appeal being required. The appeal period may be interrupted by the filing of a MFR/MNT. Once the appeal period expires without an appeal/MFR/MNT, the order becomes final. [Testate Estate of Biascan v. Biascan (2000)]

B. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY UNDER RA 9048
• Note: See the section on change of name.

ADVANCE DISTRIBUTION [Rule 109, Sec.
2] • Notwithstanding a pending controversy/appeal in estate settlement proceedings, the court may permit that the estate’s parts which are not affected by the controversy/appeal be distributed, upon compliance with Rule 90.

100% UP LAW

UP BAROPS 2008

Page 131 of 40

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->