P. 1
Copy of UP08 SpecPro

Copy of UP08 SpecPro

|Views: 76|Likes:
Published by cindysungahid503

More info:

Published by: cindysungahid503 on Sep 19, 2011
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

02/02/2012

pdf

text

original

Sections

  • I. PRELIMINARY MATTERS
  • II. SETTLEMENT OF ESTATE OF DECEASED PERSONS
  • III. GUARDIANSHIP
  • IV. TRUSTEES
  • V. ADOPTION
  • VI. HOSPITALIZATION OF INSANE PERSONS
  • VII. ABSENTEES
  • VIII. WRITS
  • IX. CHANGE OF NAME
  • X. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY
  • XI. APPEALS IN SPECIAL PROCEEDINGS

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

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. 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. Period: 60 days after the petitioner learns of the judgment. 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. CA] 5) Bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Rule 74. Notice shall also be given to the designated/known heirs. Period for claim of minor or incapacitated person: Within 1 year after the minority or incapacity is removed. accident. and not more than 6 months after such judgment or final order was entered. or an interest against both. Sec. PETITION FOR RELIEF [Rule 38] 3. As long as within reglementary period of 2 years. CC] Payment of claims: sale/mortgage/encumbrance of estate properties Distribution of remainder. • A summary settlement is not binding upon heirs/creditors who were not parties therein or had no knowledge thereof. or other persons for the full period of 2 years after such distribution. final order or other proceeding to be set aside. notwithstanding any transfers of real estate that may have been made. [Sampilo v. Period: Anytime before rendition of judgment by the TC. 4. REMEDIAL LAW 6. 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. legatees and devisees. RESCISSION IN CASE OF PRETERITION OF COMPULSORY HEIR IN PARTITION TAINTED WITH BAD FAITH [Art. and not the prescription period. even by a creditor of the estate. 2) Has such legal interest in the success of either of the parties.SPECIAL PROCEEDINGS 4) Notice shall be served upon such interested persons as the court may direct. 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. 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. 1104. 2. 3. 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 . 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. 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. De Guzman] EXTRAJUDICIAL SETTLEMENT VS. CLAIM AGAINST THE BOND OR REAL ESTATE OR BOTH [Rule 74. 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. 5. excusable negligence. mistake. REOPENING BY INTERVENTION WITHIN REGLEMENTARY PERIOD Petition for probate of the will. Such bond and such real estate shall remain charged with a liability to creditors/heirs. 4. Sec.

[Rule 75. This rule on newspaper publication does not apply if the probate of the will has been filed by the testator himself. 5) Name of the person having custody of the will if it has not been delivered to the court. Sec. if such is the case. the notice shall be sent only to his compulsory heirs. Sec. The allowance of the will shall be conclusive as to its due execution. Also.SPECIAL PROCEEDINGS • REMEDIAL LAW PROCEDURE AFTER WILL IS DELIVERED TO. 4] 1) If by mail – 20 days before hearing. Nuguid] • If there is a defect that is apparent on the face of the will. 3) Person interested in the estate. • Rationale: So that all concerned may appear to contest the allowance thereof. • 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. CONTENTS IN THE PETITION FOR PROBATE [Rule 76. OR WHEN A PETITION FOR ALLOWANCE OF A WILL IS FILED IN. or the influence of fear. or threats 4) If it was procured by undue and improper pressure and influence. • But no defect shall render void the allowance of the will. MTC if estate is less than P300K (P400K in Metro Manila). Sec. [Nepomuceno v. at the time of its execution 3) If it was executed through force or under duress. Sec. Sec. 2) Due execution thereof. FAILURE TO FULFILL ABOVE DUTIES 100% UP LAW UP BAROPS 2008 Page 97 of 40 . 4) Compliance with the requisites or solemnities prescribed by law. Sec. [Nuguid v. DUTY OF CUSTODIAN/ EXECUTOR OF WILL DUTY OF THE CUSTODIAN OF THE WILL [Rule 75. 5) Any creditor – as a preparatory step for filing of his claim therein. VENUE AND JURISDICTION • • RTC if estate is greater than P300K (P400K in Metro Manila). b) Executor and co-executor (if not the petitioner). 1] a. There must be judicial settlement through an administrator/executor if it does not fall under the 2 exceptions. 2) Names/ages/residences of the heirs. ALLOWANCE/ DISALLOWANCE OF THE WILL PERSONS WHO MAY FILE PETITION [Rule 76. 2) If through personal notice – 10 days before hearing. or the issuance of letters testamentary or of administration with the will annexed. 9] 1) If the formalities required by law have not been complied with 2) If the testator was insane. The probate court’s authority is limited to: 1) Extrinsic validity of the will. 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). and devisees. • The probate court acquires jurisdiction over the interested persons and the res only after the publication and notices are sent. 2) Signify to the court in writing his acceptance of the trust or his refusal to accept it. legatees. DUTY OF THE EXECUTOR NAMED IN THE WILL [Rule 75. 2) The court shall cause notice of such time and place to be published 3 weeks successively in a newspaper of general circulation. 1] 1) Executor. or otherwise mentally incapable of making a will. CA] • b. THE COURT: 1) The court shall fix a time and place for proving the will. 3) Probable value and character of the estate property. 4) Testator himself during his lifetime. 2) Devisee/legatee named in the will. if the testator himself is the one asking for the allowance of the will. regardless of the existence or non-existence of a will. 3) The court shall give notice of the designated time and place to: a) Designated/known heirs. 4) Name of the person for whom the letters are prayed. 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. AS TO THE INTRINSIC VALIDITY OF A WILL General rule: No. c. DISALLOWANCE OF WILL [Rule 76. 3) Testator’s testamentary capacity. 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. MODES OF NOTIFICATION [Rule 76. 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. legatees and devisees. unless the will has reached the court in any other manner.

b) Holographic will – 3 witnesses who know the handwriting of the testator must be produced. ALLOWANCE OF WILL PROVED OUTSIDE THE PHILIPPINES • • • A will allowed/probated in a foreign country must be reprobated in the Philippines. 5] d. [Rule 76. 100% UP LAW UP BAROPS 2008 Page 98 of 227 . or if it was not. 6] 1) That the will has been duly executed by the testator. PROOF OF WILL • In the hearing for the probate of a will. If the testator himself petitioned for the allowance of his holographic will. • If the subscribing witnesses are dead. the burden of disproving the genuineness and due execution thereof shall be on the contestant. 5) The legal requirements in said foreign country for the valid execution of the will. 4) The law on probate procedure of the said foreign country and proof of compliance therewith. • However. • • Without a satisfactory excuse. his affirmation is sufficient evidence of the genuineness and due execution of the will. and the certificate must be filed and recorded as other wills are filed and recorded. [Leon & Ghezzi v. 5] a) Notarial wills – Testimony of at least 1 of the subscribing witnesses may be allowed.SPECIAL PROCEEDINGS • REMEDIAL LAW 2) That the will was in existence when the testator died. [Rule 75. Aranza] PROOF OF HOLOGRAPHIC WILL IF TESTATOR PETITIONS FOR PROBATE [Rule 76. • If contested. 10] f. 2) The will has been admitted to probate in such country. Suntay] 1) The testator had his domicile in the foreign country. Sec. and as evidence of the execution of the will. 11] a) Notarial wills – All subscribing witnesses and the notary public before whom the will was acknowledged must be produced and examined. 3) The fact that the foreign tribunal is a probate court. Manufacturer Life Insurance] Petition to be filed in the RTC. [Rodelas v. FACTS THAT SHOULD BE PROVED TO ALLOW A LOST OR DESTROYED WILL [Rule 76. under the seal of the court. 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. b) Holographic wills – The testimony of 1 witness who knows the handwriting and signature of the testator may be admitted. 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. it may admit proof of the handwriting of the testator and of the subscribing witnesses or of any of them. the testimony of an expert witness may be admitted. PROBATE OF LOST/DESTROYED HOLOGRAPHIC WILL • General rule: Not allowed. Sec. 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. [Rule 77. The testator may present such additional proof as may be necessary to rebut the evidence for the contestant. (3) Are otherwise of doubtful credibility. Administration of an estate extends only to the assets of the decedent found within the state or country where it was granted. [Rule 76. e. Sec. they shall be fined a sum not exceeding P2K. if such witness testifies that the will was executed as is required by law. 4] If he retains the will and does not deliver it to the court. The administrator appointed in one state has no power over property in another state or country. the provisions thereof must be distinctly stated and certified by the judge. In the absence thereof. the testimony of an expert witness may be resorted to. Sec. Sec. 2) Contested wills: [Rule 76. 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. In the absence thereof. • If all subscribing witnesses reside outside the province – Deposition is allowed. EVIDENCE REQUIRED IN SUPPORT OF THE WILL 1) Uncontested wills: [Rule 76. he may be committed to prison and kept there until he delivers the will. the compliance of publication and notice must first be shown before introduction of testimony in support of the will. Sec. 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. • Exception: A lost/destroyed holographic will could be proved by photostatic or xerox copies thereof. Sec. (2) Do not remember having attested to it. 5] When a lost will is proved. Sec. that it has been fraudulently/accidentally destroyed in the lifetime of the testator without his knowledge. 1 and 2] PROOF IN THE REPROBATE OF THE FOREIGN WILL [Suntay v. and 3) The provisions of the will are clearly established by at least 2 credible witnesses. [Rule 75. Sec.

or failure to give bond. but it shall not be appointed guardian of the person of a ward. shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country. 3] PERSONS WHO ARE INCOMPETENT TO SERVE AS EXECUTORS/ADMINISTRATORS [Rule 78. or trustee. Sec. 2) Names/ages/residences of heirs and creditors. is unfit to exercise the duties of the trust by reason of: a) Drunkenness. d) Conviction of an offense involving moral turpitude. or if appointed. 7 shall apply REMEDIAL LAW Compensation is to be governed by Rule 85. 4) The executor of an executor cannot administer the estate of the first testator. 7 g. on the part of one or more of them. guardian of an estate. Sec. said person is either incapacitated or unwilling to serve as such. Sec. 3) Probable value and character of the estate. and they may perform the duties and discharge the trust required by the will. Sec. 3) A corporation/association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor. [Rule 79. 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. 3) Such estate. CC] 4) The marriage of a single woman also shall not affect her authority to serve under a previous appointment. 3 and 4] 1) The will shall have the same effect as if originally proved and allowed in the Philippines. shall be disposed of according to the will. 2) ADMINISTRATOR (regular or special) – The person appointed by the court to administer the estate where the decedent died intestate. after the payment of just debts and expenses of administration. Rule 85. • An administrator may also be one appointed by the court in cases when. • 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. although there is a will. Sec. otherwise. if any. so far as such will may operate upon it. and other persons believed to have an interest in the estate. • NEXT OF KIN – Those persons who are entitled under the statute of distribution to the decedent’s property. 5] ORDER OF PREFERENCE IN GRANTING LETTERS OF ADMINISTRATION 1) Surviving spouse or next of kin. 2] 1) Jurisdictional facts. administrator. c) Want of understanding/integrity. 6. 2) Letters testamentary or administration with a will annexed shall extend to all estates of the Philippines. if such persons fail to appear when notified and claim the letters to themselves. letters testamentary may issue to such of them as are competent. • He should state the grounds in writing why he is opposing and he may attach a petition for letters of administration. and the residue. Sec. Sec. [Rule 78. b) Improvidence. in the opinion of the court. 6] If a petition for letters of administration is filed. 1060. 2) in Letters of Administration: • Incompetence. accept and give bond. 3) Stranger. • Preferential right under Rule 78. 1] • Any interested person in the will. 4) Name of the person for whom the letters are prayed for. [Rule 79. Sec.SPECIAL PROCEEDINGS EFFECTS OF REPROBATE [Rule 77. 3) One who. 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. 3] OPPOSITION TO ISSUANCE OPPOSITION OF THE ISSUANCE OF LETTERS TESTAMENTARY [Rule 79. • • • 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. refusal to accept the trust. Sec. 1 and 2] 1) A minor. [Rule 78. 2) A non-resident. CONTENTS OF A PETITION [Rule 79. Executor Nominated by the testator and appointed by the court Administrator Appointed by the court if the testator did not appoint. 100% UP LAW UP BAROPS 2008 Page 99 of 40 . 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. in like manner as an individual. Sec. 2) Any one or more of the principal creditors. 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. Compensation may be provided for by the testator in the will. Sec. 4] 1) in Letters Testamentary: • Incompetence. the will does not appoint any executor. [Art. Sec.

DUTIES/POWERS OF THE SPECIAL ADMINISTRATOR 1) Possession and charge of the goods. 4) Cannot lease the property under administration for more than 1 year. the court may still require the executor to give a bond. 100% UP LAW UP BAROPS 2008 Page 100 of 227 . POWERS OF A NEW EXECUTOR/ADMINISTRATOR (AFTER THE FIRST RESIGNS. 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. 10) Give allowance to legitimate surviving spouse or children of the decedent if the court decrees such (grandchildren are not entitled). the administrator shall have the same powers as that of a general administrator. 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. even at public or judicial auction. Sec. 2) To examine and make invoices of the property belonging to the partnership in case of a deceased partner. 2) Prosecute/defend actions commenced by or against the former executor/administrator. Borromeo] The order appointing a special administrator is an interlocutory and is not appealable. 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.SPECIAL PROCEEDINGS SPECIAL ADMINISTRATORS • REMEDIAL LAW 7) To render true an just account of his administration within 1 year of appointment. [Junquera v. but such order of preference may be followed by the judge in the exercise of sound discretion. 10) Deliver property he received to person appointed as executor or administrator or to such other person as may be authorized by the court. OR REVOKED) 1) Collect and settle the estate not administered. RESTRICTIONS ON THE POWER OF AN ADMINISTRATOR/EXECUTOR 1) Cannot acquire by purchase. 1] 2) Executor is a claimant of the estate he represents. [Rule 81. 8) To perform all orders by the court. 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. 2) Preserve the same. 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. 8) To perform all orders by the court. and (2) property ordered by the court. chattels. 6) Make a true inventory and appraisal of all real/personal property of decedent within 3 months after his appointment (except clothes of family. and other articles for subsistence of family). Sec. 7) To render true an just account of his administration within 1 year of appointment. IS REMOVED. 5) Pay debts only as may be ordered by the court. CA] The order of preference in the appointment of regular administrators does not apply to the appointment of a special administrator. marriage bed. Sec. 3) Commence and maintain suit for the estate. 2) Cannot borrow money without authority of the court. 4) Sell only: (1) perishable property. [Rule 80. and other articles for subsistence of family). Sec. rights. either in person or mediation of another. 6) Make a true inventory and appraisal of all real/personal property of decedent within 3 months after his appointment (except clothes of family. 5) Cannot continue the business of the deceased unless authorized by the court. 8] • In this case. Flores] WHEN APPOINTED 1) Delay in granting of letters including appeal in the probate of the will. credits and estate of the deceased. marriage bed. [Matias v. 6) Cannot profit by the increase/decrease in the value of the property under administration. the property under administration. 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. [Garcia v. BOND • A bond is necessary. 3) To make improvements on the properties under administration with the necessary court approval except for necessary repairs.[Medina v. and (2) for the payment of expenses of administration. and examine and take copies of books and papers relating to the partnership in case of a deceased partner. Gonzales] Similarly. but the only condition which attaches to the bond is the payment of the debts of the testator. 9) Discharge all debts/legacies/charges as shall be decreed by the court. 2] • Additional bond may be required: 1) When there is a change in circumstances of the executor/administrator or for other sufficient cause. Even if the testator provides that the executor shall serve without a bond. 9) Give allowance to legitimate surviving spouse or children of the decedent if the court decrees such (grandchildren are not entitled). [Rule 86. 3) Cannot peculate with funds under administration. 5) To possess and manage the estate when necessary for (1) the payment of debts. 3) Recover execution on judgments in the name of former executor/administrator. [Rule 81.

SPECIAL PROCEEDINGS proceeds of the sale or encumbrance. ½% in excess of P30K up to P100K. 4] • Neglects or delays to raise or pay money: The administrator shall be liable therefore on his bond. [Rule 85. Sec. the executor/administrator failed to recover part of the estate which came to his knowledge. If the parties do not agree upon the sum to be allowed. Sec. the executor/administrator is not liable for debts due the estate which are not yet paid. 9] PERIOD FOR CLAIMS [Rule 86. 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. the Statute of Non-Claims must still be complied with. Sec. 5] EXPENSES OF ADMINISTRATION Expenses necessary for the management of the property. 8] • The court also may examine the executor/administrator upon oath as to any matter relating to the account rendered by him. • It is within the court’s discretion on WON the intestate proceeding should be discontinued and a new proceeding should be constituted.3] GROUNDS FOR REMOVAL OF EXECUTOR/ADMINISTRATOR [Rule 82. and then a will is discovered and allowed by the court. • 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. Sec. the same may be ascertained by the court whose determination shall be final. [Rule 89. 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. 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). 3) 2% of the first P5K. 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. Sec. the claims are barred forever. Sec. [Rule 85. notice shall be given to interested persons in order for them for examination. for protecting it against destruction or deterioration. Sec. and ¼% in excess of P100K. unless it remained uncollected because of his fault. for cause shown and on such terms as are equitable. • Charge of legal fees rendered by executor/administrator to the estate: Not allowed. COMPENSATION TO EXECUTOR/ADMINISTRATOR [Rule 85. the administration shall be revoked and the administrator shall surrender the letters of administration to the court and render his account of administration. 1% in excess of P5K up to P30K. 2] 1) Neglect to render accounts (within 1 year when the court directs). 5) Insanity or incapacity or unsuitability to discharge the trust • h. • Exception: BELATED CLAIMS – Claims not filed within the original period fixed by the court. the compensation shall be either: 1) P4/day for the time actually and necessarily employed. Sec. • However. 1] • However. [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. 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. [Rule 85. 100% UP LAW UP BAROPS 2008 Page 101 of 40 . 3) Neglect to perform an order/judgment of the court or a duty expressly provided by the ROC. he is not accountable for properties which never came to his possession. [Rule 85. RENDER OF ACCOUNT • Within 1 year from receiving letters testamentary/letters of administration. Sec. [De Parreño v Aranzanso] • Acts of the administrator done before his removal/resignation/revocation are valid unless proven otherwise. Sec. if there is no compensation provided. [Rule 85. • Even if the testator acknowledged the debt in his will and instructed the executor to pay such debt. Sec. [Rule 85. 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. 7] • That provided by the will is controlling. On application of a creditor who has failed to file his claim within the time previously limited. 4) Absconding. Otherwise. Sec. • The discovery of a will does not ipso facto nullify the administration unless the will has been proved and allowed. 7(c)] For joint executors and administrators: The court may take separate bonds from each or a joint bond from all. [Rule 81. and possibly for the production of fruits. However. at any time before an order of distribution is entered. 3] • REMEDIAL LAW Before the account is allowed. [Rule 82. or adjusted by the court with their assent. The Statute of Non-Claims applies only to claims that do not survive. the court may. REVOCATION OF ADMINISTRATION. • Generally. 2) Commission upon the value of so much of the estate as comes into his possession and finally disposed of by him. 2) Neglect to settle estate according to the ROC.

debts incurred by the deceased during his lifetime. c) Absolute or contingent. • 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. [Rule 86. [Rule 86. 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. 13] The mode of appeal is record on appeal and must be filed within 30 days from notice of judgment. and post the same in 4 public places in the province and 2 public places in the municipality where the decedent last resided. 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 . without prejudice to the right of the estate to recover contribution from the other debtor. When the executor /administrator admits and offers to pay part of a claim. 4) If the claim is not due or contingent. • A claim admitted by the executor/administrator may be opposed by an heir/legatee/devisee. 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. [Rule 86. 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. Sec. 2) Claims for funeral expenses or for the last illness of the decedent. 8] PROCESS FOR CLAIMS [Rule 86.SPECIAL PROCEEDINGS • REMEDIAL LAW admitted as creditor and shall receive no share in the distribution of the other 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. 12] NOTICE REQUIREMENT IN CLAIMING AGAINST THE ESTATE: 1) The court. These remedies are alternative. Sec. [Rule 86. after granting letters testamentary/letters of administration. 2) This notice must be published for 3 successive weeks in a newspaper of general circulation and province. 7] 1) ABANDON the security and prosecute his claim against the estate and share in the general distribution of the assets of the estate. 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. the availment of one bars the availment of the other remedies. 11] • The court may refer contested claims to a commissioner. 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. [Rule 86. and the claimant refuses to accept the amount offered in satisfaction of his claim. • However. b) Due or not due. it must be supported by affidavit stating the amount due and the fact that there has been no offsets. [Rule 86. 3) If the claim is due. Sec. he shall state such want of knowledge. 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. 5] 1) Money claims. Sec. Sec. 3) Judgment for money against decedent. 3) Within 10 days after the notice has been published and posted in accordance with the preceding section. it must be accompanied by an affidavit stating the particulars thereof. Sec. arising from contract: a) Express or implied. if he fails to obtain a more favorable judgment. • The Statute of Non-Claims and the Statute of Limitations must concur in order for a creditor to collect. 6] • APPEAL FROM JUDGMENT ON A CLAIM AGAINST ESTATE • • Judgment is appealable like in ordinary cases. he cannot recover costs. but must pay to the executor/administrator costs from the time of the offer. 6] If the obligation of the decedent is joint with another debtor: The claim shall be confined to the portion belonging to him. • If the executor/administrator has no knowledge sufficient to enable him to admit or deny specifically. 5) Executor must file his answer to the claim within 15 days after service of a copy of the claim. 2) Serve a copy thereof on the executor/administrator. 10] 1) Deliver the claim with the necessary vouchers to the clerk of court. SOLIDARY OBLIGATION OF DECEDENT • The claim shall be filed against the decedent as if he were the only debtor. he may file a claim (contingent) against the estate within the Statute of Non-Claims. Sec. Sec. • CLAIMS THAT DO NOT SURVIVE [Rule 86. • The answer must also set forth claims which the decedent has against the claimant or else it will forever be barred. Sec. may immediately issue notices to creditors to file their claims.

3) Judgment for money against decedent. CLAIMS THAT DO NOT SURVIVE [Rule 86. 9] j. 4) The executor/administrator has shown no desire to file the action or failed to institute the same within a reasonable time. Sec. 3] 2) Where the sale of such personalty would be detriment of the participants (everyone) of the estate. 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. such person shall be liable for double the value of the property sold. [Rule 88. [Rule 88.Actions that may be commenced directly against the executor and administrator. Sec. [Rule 87. [Rule 89. Sec. c) Absolute or contingent. the conveyance would be void as against other creditors. the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law. embezzled. i. it shall be met by contributions by devisees. Sec. 3] CLAIMS THAT SURVIVE • CLAIMS THAT SURVIVE . or alienated to be recovered for the benefit of the estate. 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. Sec. [Rule 87. Sec. Sec. 2) Claims for funeral expenses or for the last illness of the decedent. 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. Sec. 2. 3) Action to recover damages arising from tort. 5] 1) Money claims. Sec. [Rule 87. 3 and 6] • Exception: Instances when realty can be charged first: 1) When the personal property is not sufficient. 6) A bond is filed by the creditor. legatees. Sec. PROCEEDINGS ON MORTGAGE DUE ESTATE • Executor/administrator can foreclose a mortgage belonging to the decedent. 3] 3) When sale of personal property may injure the business or interests of those interested in the estate. (b) from the personal property. If there is still a deficiency. 2) In his lifetime. 2] 4) When the testator has not made sufficient provision for payment of such 100% UP LAW UP BAROPS 2008 Page 103 of 40 . • PROCEEDINGS WHERE PROPERTY ENTRUSTED BY EXECUTOR/ ADMINISTRATION TO 3RD PERSON [Rule 87. 3) The subject of the attempted conveyance would be liable to attachment in his lifetime. The last 3 requisites are unnecessary where the grantee is the executor/administrator himself. EMBEZZLED. the court may punish him for contempt and may commit him to prison until he submits to the order of the court. Sec. Refusal to appear or give an accounting may be punished with contempt. Sec. 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. [Rule 87. in that order.SPECIAL PROCEEDINGS this rule provided. and (c) from the real property. 2) Enforcement of a lien thereon. Sec. [Rule 87. 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. or heirs who have been in possession. 1] 1) Recovery of real/personal property (or any interest therein) from the estate. Requisites before creditor may bring action [Rule 87. 5] • PROCEEDINGS WHERE PROPERTY CONCEALED. 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. b) Due or not due. 6] • If the suspected person refuses to appear or to answer questions asked him during the examination. [Rule 87. debts incurred by the deceased during his lifetime arising from contract: a) Express or implied. [Rule 86. 10] 1) There is a deficiency of assets in the hands of an executor/administrator for the payment of debts and expenses of administration. the prevailing party shall be allowed the costs of his action up to the time of its discontinuance. the action should be in the name of all the creditors.[Rule 88. 6] • If even before the granting of the letters testamentary/letters of administration. Sec. 7) The action by the creditor is in the name of the executor/administrator. in which event. 5) Leave is granted by the court to the creditor to file the action.

and may cause such further notice to be given. Baun] • • • • • EXCEPTIONS. together with the deed of the executor/administrator for such real estate. expenses of administration. 9] REGULATIONS FOR GRANTING AUTHORITY TO SELL/MORTGAGE/ENCUMBER ESTATES [Rule 89. and legacies. in his lifetime. Sec. [Rule 89. and such other facts as show that the sale/mortgage/encumbrance is necessary or beneficial. the excess is not due. 8] 6) When the decedent during his lifetime held real property in trust for another person. 3) To cover expenses for the preservation of the estate. as well as of the executor/administrator. 7] 1) The executor/administrator shall file a written petition setting forth the debts due from the deceased. 3) If the court requires it. The executor/administrator shall be furnished with a certified copy of such order. Sec. Sec. The same principles apply if the debt of the estate is in another country. Sec. and the time and place of hearing. a certified copy of the order of the court. the value of the personal estate. in proper cases. 6) There shall be recorded in the registry of deeds of the province in which the real estate thus sold/mortgaged/encumbered is situated. by order stating such compliance. they succeed to the rights and obligations of the deceased at the moment of the latter’s death. [Maneclang v. 2] 5) When the decedent was. Sec. which shall be as valid as if the deed had been executed by the deceased in his lifetime. 4) If the requirements in the preceding subdivisions of this section have been complied with. 3] Effect if the sale. [Rule 88. to deed real property to beneficiary.SPECIAL PROCEEDINGS debts/expenses/legacies. 2) To pay legacies. the court. or. Sec. in his lifetime. to deed real property to beneficiary. If the court is satisfied that a contingent claim duly filed is valid. 3) Hearing. under contract. Since the heirs are the presumptive owners. the reason for the same. [Rule 89. and may be prosecuted for the benefit of either. Order of the sale of personal property: [Rule 89. Requisites for the estate to be retained to meet contingent claims: • 100% UP LAW UP BAROPS 2008 Page 104 of 227 . the executor/administrator shall give an additional bond. [Rule 89. If as regards a specified debt more than the amount thereof is ordered paid. the expenses of administration. 5) If the estate is to be sold at auction. [Rule 89. binding in law. 2] 5) When the decedent was. 3] 2) Where the sale of such personalty would be detriment of the participants (everyone) of the estate. as would be most beneficial to all parties concerned. 8] 6) When the decedent during his lifetime held real property in trust for another person. • PAYMENT OF CONTINGENT CLAIMS [Rule 88. Sec. under contract. REMEDIAL LAW 2) The court shall thereupon fix a time and place for hearing such petition. sufficient to pay a portion equal to the dividend of the other creditors. except in the manner provided by law. it may order the executor/administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute. conditioned that such executor/administrator will account for the proceeds of the sale/mortgage/encumbrance. under the same circumstances and under the same regulations as prescribed in this rule for the sale/mortgage/encumbrance of other real estate. by publication or otherwise. • If sale/mortgage/encumbrance of the property of the decedent prevented by an interested person: That person can give a bond. 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. the legacies. [Rule 88. 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. and are the persons directly affected by the sale/mortgage and therefore cannot be deprived of the property. 3] 3) When sale of personal property may injure the business or interests of those interested in the estate. [Rule 89. Sec. may authorize the executor/administrator to sell/mortgage/encumber. Sec. 9] Requisites for exception to ensue: 1) Application by executor/administrator. [Rule 89.Sec. or encumbrance of the decedent’s property is done without notice: Void. 4] • • CONTINGENT CLAIM – Claim that is subject to the happening of a future uncertain event. and in case of sale the court may authorize it to be public or private. in such sum as the court directs. mortgage. 1] 1) To pay the debts and expenses of administration. unless a contrary intention appears. the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale. if the estate is insolvent. and such bond shall be for the security of the creditors. such part of the estate as is deemed necessary. Sec. The court may authorize an executor/administrator to sell/mortgage/encumber real estate acquired by him on execution or foreclosure sale. conditioned to pay the debts. to be given personally or by mail to the persons interested. as it shall deem proper. and cause notice stating the nature of the petition. Sec. Sec. [Rule 89. the situation of the estate to be sold/mortgaged/encumbered. 2) Written notice to persons interested. in a sum fixed by the court. [Rule 89. binding in law. 2] 4) When the testator has not made sufficient provision for payment of such debts/expenses/legacies.

8] • If the decedent was in his lifetime under contract. 4] 1) Upon application by the executor/administrator and on notice to interested persons (heirs/devisees. 10] • However. The proceeds of such sale shall be assigned to the persons entitled to the estate in the proper proportions. not exhausted in the payment of claims. 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. binding in law. Extension must not exceed 6 months for single extension. and the court may. 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. 2) Court is satisfied that the claim is valid. Sec. Sec. [Rule 88. in proportion to their respective credits. [Rule 88. [Rule 88. 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. SALES AND CONVEYANCE OF PERSONALTY/REALTY FOR OTHER REASONS WHEN BENEFICIAL TO INTERESTED PERSONS • Authorization of sale as beneficial to interested persons: [Rule 89. 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. after hearing. [Rule 88. 11] The court may suspend the order for the payment of debts or may order the distribution if an appeal is taken. leaving in the hands of the executor/administrator sufficient assets to pay the claim disputed and appealed. to deed real property on an interest therein. 6] TIME FOR PAYMENT OF DEBTS AND LEGACIES. Sec. CC. • • • CONVEYANCE OF REALTY WHICH DECEASED CONTRACTED TO CONVEY DURING LIFETIME AUTHORIZATION OF CONVEYANCE OF REALTY WHICH DECEASED CONTRACTED TO CONVEY [Rule 88. The successor of dead executor/administrator may be allowed an extension not to exceed 6 month. [Rule 88. but the assets so distributed may still be applied to the payment of the claim when established. shall be distributed by the order of the court to the persons entitled to the same. the benefit of this and the preceding sections shall not be extended to the creditors in another country if the • k. 3) The claim has become absolute. [Rule 88. the court shall order the payment thereof. etc. but may be extended). 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. Sec. but court may extend on application of executor/administrator and after hearing and notice thereof. 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. REMEDIAL LAW property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors.SPECIAL PROCEEDINGS 1) Contingent claim is duly filed within the 2 year period allowed for the creditors to present claims. the court may authorize the executor/administrator to convey such property according to such contract. they shall become liable to contribute for the payment of debts and expenses. PERIOD FOR SUCCESSOR OF DECEASED ADMINISTRATOR/EXECUTOR [Rule 88. Sec. Sec. The whole period allowed to the original executor/administrator shall not exceed 2 years. or with 100% UP LAW UP BAROPS 2008 Page 105 of 40 . settle the amount of their several liabilities. • 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. if all the creditors belonging to that class cannot be paid in full. • ORDER OF PAYMENT OF DEBTS • Before the expiration of the time limited for the payment of debts (1 year. Sec.). among the creditors whose claims are definitely allowed. [Rule 88. Sec. and the creditor may maintain an action against the distributees to recover the debt. Sec. the court may authorize the executor/administrator to sell the whole or part of the estate. 1059 and 2239-2251. 7] After following the order of preference of credits. 15 and 16] • Need not exceed 1 year in the first instance. 2) Authority shall not be granted if inconsistent with the provisions of a will. 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. according to their respective claims. Sec. and order how much and in what manner each person shall contribute.

a separate action for recovery of shares. 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. 100% UP LAW UP BAROPS 2008 Page 106 of 227 . 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.SPECIAL PROCEEDINGS such modifications as are agreed upon by the parties and approved by the court. then appeal from the order of denial (the latter is not an independent action. Remedies: Motion to reopen within the 30-day reglementary period. 1. 9] • l. and jurisdiction of probate court is exclusive. 2 and 4] 1) There should be an application by the executor/administrator or any person interested in the estate. PROCEDURE [Rule 90. Sec. An order which determines the distributive share of heirs is appealable. all interested persons have constructive notice. 2) The requirements for notice and hearing must be fulfilled. and if it not inconsistent with the intention of the testator. Sec. Sec. 8 does not specify who should file the application. If not appealed. REMEDIAL LAW EXPENSES OF PARTITION [Rule 90. [Heirs of Spouses Sandejas v. 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. and the apportionment shall be settled and allowed by the court. the court may issue an execution in the name of the executor/administrator against him. it is the clerk of court which shall execute the deed. 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. if beyond the reglementary period. then such may be applied for the payment of the expenses of partition.e. and inheritance taxes. Lina] General rule: If there are sufficient effects in the hands of the executor/administrator. 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. Sec. Title to the property is vested from the finality of the order of distribution. 8] • While Rule 89. • Exception: If it cannot be paid by the executor/administrator. [Rule 89. the order of distribution may be made even before the payment of the debts and expenses. it should be paid by the parties in proportion to their respective shares or interest in the estate. allowance of widow. 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. • Non-distribution of estate is not a ground for reopening. expenses for administration. the court may allow the executor/administrator to deed such property to the person for whose use and benefit the property was held. Sec. Sec. [Rule 89. as the court deems proper. [Rule 90. 3] • • PROCEDURE • There should be an application for such purpose and notice should be given to the interested persons and such further notice. Remedy for such case is a motion for execution. or. • Person interested in the partition does not pay his proportion/share of the expenses of partition. 1] • Exception: If the distributes or any of them gives a bond conditioned for the payment of said obligation. If the property is to be conveyed to the executor/administrator. it becomes final. • Since it is a proceeding in rem. funeral expenses. by publication or otherwise. The court may order the execution of such trust whether by deed or by law. even people not the executor/administrator can file the application).

Sec. b) Anyone interested in the incompetent’s estate.SPECIAL PROCEEDINGS III. (2) an isolated leper. however. [Gorostiaga v. a) Guardian over the person. GUARDIANSHIP REMEDIAL LAW proceedings may be served. prodigals. disease. TRANSFER OF VENUE [Rule 92. if he has transferred thereto his bona-fide residence. 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. [Paciente v. Sec. 2003). 3) Prodigals. FC] 2) GUARDIAN AD LITEM – Appointed by the courts of justice to prosecute or defend a minor. 5) Those who are of unsound mind. 2) Hospitalized lepers. without need of court appointment. [Parco v. 2) For non-resident incompetents: [Rule 93. Art. Guardianship of minors. Guardianship of incompetents who are not minors continues to be under the jurisdiction of the regular courts and governed by Rules 92-97. without outside aid. 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. insane or person declared to be incompetent. 4) Deaf and dumb who are unable to read and write. where the ward’s right/title to the property is clear and indisputable. (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. 6] a) Any relative/friend. CC. minor heirs or deceased war veterans and other incompetent persons. as guardian for insane persons. take care of themselves and manage their property. b) Guardian of the property. PETITION FOR APPOINTMENT OF A GUARDIAN WHO MAY PETITION 1) For resident incompetents: [Rule 93. cannot. 225. and other similar causes. 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. c) GENERAL GUARDIAN – Has custody and care of the ward’s person and property. 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. 3) JUDICIAL GUARDIAN – Appointed by the court in pursuance to law. Lorenzo. [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. 320. the guardianship court may issue an order directing its delivery/return. Sec. This parens patriae is inherent in the supreme power of the State. is now governed by AM-0302-05-SC. he cannot be appointed guardian of the 100% UP LAW UP BAROPS 2008 Page 107 of 40 . in favor of: (1) an insane person who should be hospitalized. CA (1982)] However. in a court action. weak mind. • If the interested person is a creditor and mortgagee of the ward’s estate. but by reason of age. 1] a) Any relative/friend/person on behalf of the incompetent who has no parent or lawful guardian. the issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. 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. [Art. thereby becoming an easy prey for deceit and exploitation. Dacuycuy (1982)] Court order fixing the hearing of the petition • Notice of the hearing Hearing and appointment of the guardian INCOMPETENTS [Rule 92. The latter court shall have full jurisdiction to continue the proceedings. b) Health Secretary. 6) Persons not being of unsound mind. even though they have lucid intervals. Sec. [Nery v. without requiring payment of additional court fees.

[Rule 96. 3) To account for the estate and all proceeds/interest derived therefrom. 3] HEARING • When a petition is filed. Sec. on receiving a fair and just dividend of the estate and effects. Sec. 2) Incompetency rendering the appointment necessary/convenient. [Rule 94. 3) Names/ages/residences of the incompetent’s relatives. 4] • If the guardian delegates his duties to another. [Rule 96. [Guerrero v. After notice to interested persons. If the • NEW BOND • Whenever necessary. he shall be responsible for the 100% UP LAW UP BAROPS 2008 Page 108 of 227 . including the incompetent himself. Sec. within 3 months. the real estate (upon obtaining court order). • The petition shall be verified. character and conduct. [Rule 93. the estate’s inventory. the sureties on the old bond may then be discharged from further liability when no injury will result to interested parties. Sec. Sec. [Garchitorena v. and to provide for the ward’s proper care/custody/education. Sotelo] • PETITION’S CONTENTS [Rule 93. Ines-Luciano (1976)] GUARDIAN’S APPOINTMENT • The alleged incompetent must be present at the hearing. 2) To faithfully execute the duties of his trust. unless another person is appointed for that purpose. Sec. [Rule 94. 4) At the expiration of his trust. and. despite and appeal therefrom. 4) Estate’s probable value and character. CONSIDERATIONS IN THE CHOICE OF THE GUARDIAN [Francisco v. 1] Conditions on the bond: [Rule 94. 2] REMEDIAL LAW person in question is an incompetent. 1] 1) To make and return. sell/encumber the real estate (upon court authorization). 2) Letters of guardianship issue to himself or to any suitable person named in the opposition. to settle his accounts with the court and deliver the remaining estate to the person lawfully entitled thereto. The court shall cause notice to be given to the persons mentioned in the petition residing in the province. • A person who is incompetent to act as an executor/administrator does not necessarily need to be placed under guardianship. [Yangco v. the guardian can do what is necessary (under court’s direction) for the protection of the ward/estate. [Rule 96. Sec. and if the income/profits are insufficient. No man can serve two masters. demand/sue/receive for all debts due the ward. [Rule 93. Sec. 5] The guardian’s appointment is good until set aside. 3] 3) To manage the ward’s estate frugally and without waste. 8] GUARDIAN’S BOND • Before an appointed guardian enters upon the execution of his trust. • The courts should not appoint as a guardian any person who is not personally subject to their jurisdiction (e. CFI] • • OPPOSITION [Rule 93. 2) Unsuitability of the person for whom letters are prayed. but no defect in the petition or verification shall render void the issuance of letters of guardianship. Sec. and the present and past history of a prospective appointee. the court may require a new bond to be given by the guardian. or letters of guardianship issue. [Rule 93. De Baluyot v. 2] 2) To settle all the ward’s accounts. 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.SPECIAL PROCEEDINGS ward’s person and property. But if a person is incompetent to act as executor or administrator. 5) To perform all court orders.g. the bond may be prosecuted in the same proceeding or in a separate action. b) if insufficient. 5) Name of the person for whom letters of guardianship are prayed. Sec. [Lopez Vda. Teran] • The best interests of a ward can override procedural rules and even the rights of parents to the custody of their children. 2] 1) Jurisdictional facts. then he is not the incompetent person envisaged in the law of guardianship. [Zafra-Sarte v. Sec. 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. Sec. [Rule 94. for the use and benefit of the ward or of any person legally interested in the estate. and of the persons having him in their care. 4] • Any interested person may file a written opposition and pray that: 1) Petition be dismissed. or for the same and give discharges to the debtor. CA (1984)] • The court may consider the financial situation. non-residents). the morals. prudence and trustworthiness. and appear for the ward in all actions/proceedings. apply the income/profits to the comfortable and suitable maintenance of the ward and his family. Sec. The court shall then hear parties’ evidences. 3] Notice to the ward’s relatives is a jurisdictional requirement. • Grounds for opposition: 1) Competency of the alleged incompetent. 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. if able to attend. the physical condition and sound judgment. the court shall appoint a suitable guardian of his person/estate/both. It must also be shown that the required notice was given. [Rule 93. to manage and dispose of the estate according to ward’s best interests. he shall give a bond. In case of breach of the bond’s conditions. the court shall fix a time and place for hearing.

2] • If it seems probable that the sale/encumbrance is necessary/beneficial. [Cui v. the court shall order the sale/encumbrance. [Rule 96. [Rule 96. [Inton v. [Rule 95. subject to conditions on time and manner of payment and security. • Extra allowance may be made in each case as the importance and difficulty of the management of the estate may require. 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. • All the estate described in the first inventory shall be appraised. Sec. CC] • If the authority to sell was obtained under suspicious circumstances indicative of fraud and collusion. Sale of the ward’s realty without court order is void. Quintana] The guardian may file a verified petition with the court which appointed him. Sec. Sec. [Rule 96. Labrador] However. but the judge may require an additional bond as a condition for the granting of the order of sale.SPECIAL PROCEEDINGS other’s actions in the premises and for any resulting loss. and pray for authorization of the sale/encumbrance. [Mendoza v. Sec. [Ramos v. that anyone is suspected of having embezzled/concealed/conveyed away any of the ward/estate’s property. Sec. the guardian must present his account to the court for settlement and allowance. notice to the ward’s relatives. 100% UP LAW UP BAROPS 2008 Page 109 of 40 . 4] • After full examination. [Lopez v. [Doronila v. 3] • At the time and place designated in the show cause order. and as often thereafter as required. The grounds enumerated in this section are exclusive. or put out at interest. PNB (1957)] • A guardian may be imprisoned for failure to render his account and ordered to deliver the estate to his successor. if it appears that it is necessary/beneficial to the ward to sell/encumber the estate (or some portion of it). 5] • This seeks to protect the ward’s funds against imprudent or unsafe investments by the guardian. plus just compensation for his services. • Contents of the order: 1) That the proceeds be expended for the maintenance of the ward and his family. Sec. • The court may authorize and require the guardian to invest the sale/encumbrance’s proceeds or the ward's money. and an inventory and account annually after the appointment. the guardian’s sale may subsequently be annulled by the court. Sec. • The guardian’s original bond shall stand as security for the proper appropriation of the sale’s proceeds. 1] • Grounds for the petition: 1) If the estate’s income is insufficient to maintain the ward and his family. 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. 6] • Purpose: To secure evidence from persons suspected of embezzling. • Next of kin . v. To render an inventory of the ward’s estate within 3 months after his appointment. Piccio] Upon the expiration of a year from his appointment. ORDER FOR SALE/ENCUMBRANCE [Rule 95. The petition shall set forth the grounds. Hermanos] • Exception: If he shows that he used reasonable care and discretion in the manner of selecting those whom he employs. and a careful investigation as to the proposed action’s necessity/propriety. the court shall hear evidences and grant/refuse the petition’s prayer as the ward’s best interests require. 3) May direct that estate be disposed of at either public or private sale. No order will be issued for another purpose not found in this rule. • If any property of the ward not included in an inventory already rendered is discovered/acquired by the ward. • 4) • SHOW CAUSE ORDER [Rule 95. 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. 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. Sec. or invested. [Art. The authority shall only be granted after hearing. Ballesteros] • The guardian cannot acquire by purchase. • The order of sale cannot continue in force for more than 1 year without a sale being had. Rabacal] 5) 6) 7) SELLING/ENCUMBERING THE WARD’S PROPERTY PETITION [Rule 95. the court may cite the suspected person to appear for examination and may order to secure the estate. The court may make other orders for the management/investment/disposition of the estate and effects. 1491. for the best interest of all concerned. the cancellation of the guardian’s authority to sell will not affect the buyer’s rights. 8] • A non-parent guardian is allowed the amount of his reasonable expenses incurred in the execution of his trust. Sec. 2) Specific causes why the sale/encumbrance is necessary/beneficial. not exceeding 15% of the ward’s net income. [Margate v. like proceedings shall be had for inventory and appraisement within 3 months. 7] • The inventory and account may be compelled upon the application of an interested person.Relatives whose relationships are such as to entitle them to shares in the estate as distributes. • The inventories and accounts shall be sworn to by the guardian. [Philippine Trust Co. [Zubeldia v. 5] Upon complaint of the guardian/ward or any person interested in the ward’s estate. The court may request the assistance of inheritance tax appraisers. even at a public or judicial auction. the property of his ward. Teodoro] HEARING [Rule 95. [Rule 96.

• Upon the guardian’s resignation/removal. d) resigns. or his guardian/relative/friend. • The petition shall be verified by oath. the court shall fix the time for hearing. Hence. b) wasted/mismanaged the estate. [Lopez v. Sec. 2) If the incompetent dies. Witnesses may be called and examined by the parties or by the court. 3) If the guardian: [Rule 97. [Rule 96. [Rule 97. Sec. the relatives and (court’s discretion) any person may contest the right to the relief demanded. 5] • GUARDIANSHIP OF NON-RESIDENT INCOMPETENTS • The guardian of a nonresident’ estate has management of all the ward’s estate within the Philippines. Sec. Sec. 3] • The court which appointed the guardian is also the court competent to decide the petition for restoration of to capacity. 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.SPECIAL PROCEEDINGS • Appeal is the proper remedy against a court order authorizing the sale of the ward’s property. Enriquez (1960)] • A guardian may resign if it appears proper to allow him. [Rule 97. Sec. the court may appoint another in his place. [Rule 97. [Johannes v. the court may discharge the guardian. it may appoint a guardian for the non-resident’s estate. 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. 1] • The person who was declared incompetent. 1] Only the court which appointed the nonresident’s guardian has jurisdiction over the guardianship. 1] • 100% UP LAW UP BAROPS 2008 Page 110 of 227 . [Olarte v. the court may remove him and compel him to surrender the ward’s estate to the person lawfully entitled to it. • Upon receipt of the petition. Sec. [Crisostomo v. and shall state that the subject person is then competent. 2] a) becomes insane or incapable/unsuitable of discharging his trust. [Rule 96. • On the trial. notice and hearing. if the court is satisfied that the nonresident is an incompetent rendering a guardian necessary/convenient. his competency shall be adjudged and guardianship shall cease. and cause notice to be given to the guardian and the ward. Harvey] After filing of petition. • Upon notice to the guardian. If it is found that the person is no longer incompetent. 6] GUARDIANSHIP’S TERMINATION • GROUNDS FOR TERMINATION 1) If the incompetent is no longer incompetent. • An order removing a guardian is an order constituting a final determination of his rights. c) failed for 30 days after it is due to render an account or make a return. This is because the latter is merely a continuation of the original guardianship proceeding. the guardian. the guardian may appeal. may petition the court to have his present competency judicially determined. 4) If it appears that the guardianship is no longer necessary. Sec. [Rule 93.

Even then. [De Leon v. [Rule 98. is held by him for the use of another. Exception: If there is contrary proof. [De Leon v. TRUSTEE’S APPOINTMENT • If testator omitted appointment of trustee. [De Leon v. the trustee shall be appointed by the RTC where: 1) the will was allowed. by some writing/words evidencing an intention to create a trust. 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. an implied trust cannot be established upon vague and inconclusive proof. 3] • A person succeeding to a trust (as the former trustee’s executor/administrator) is not required to accept the trust. the equitable ownership of the former entitles him to performance of certain duties and the exercise of certain powers by the latter. 1443. An express trust may even be declared by a writing made after the legal estate has vested in the trustee. 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. 1445. Thereafter. [Art. 2] 100% UP LAW UP BAROPS 2008 Page 111 of 40 . CA (1999)] DECLARATION OF TRUST – Act by which a person acknowledges that the property. The court may order former/remaining trustees to convey the estate to him. They arise contrary to intention against one who fraudulently obtains/holds the legal right to property which he should not. Sec. powers and duties as if he was appointed by the testator. independently of the parties’ particular intention. 1446. [Art. and there is no adequate provision in the instrument creating the trust. Sec. and the appellate court will decline to interfere except in cases of clear abuse. 2] The power to appoint a trustee is discretionary with the court. [Regalado] Express trust on an immovable. powers and duties as if he was originally appointed. [Rule 98. CA (1999)] 1) EXPRESS – Created by parties’ direct and positive acts. It is sufficient that a trust is clearly intended. 1444. But if the trust does not impose any onerous condition on the beneficiary. or interests in it. in equity. CA (1999)] No particular words are required to create an express trust. [Saltiga v. or superinduced on the transaction by operation of law as a matter of equity. b) CONSTRUCTIVE TRUSTS – Created by the construction of equity in order to satisfy the demands of justice and prevent unjust enrichment. may not be proved by parole evidence. Francisco] • SCOPE AND APPLICABILITY SUCCESSOR TRUSTEES • If the trustee declines/resigns/dies or is removed before the trust’s objects are accomplished. Molo-Peckson (1962)] • VENUE [Rule 98. CC] • Exception: The contrary appears in the instrument constituting the trust. it is likewise the discretion of the court to remove the trustee. • PARTIES TO A TRUST [Regalado] 1) Trustor 2) Trustee 3) Beneficiary (cestui que trust) KINDS OF TRUST [Saltiga v. Sec. an express trust cannot. his acceptance is presumed. [Rule 98. That trustee shall have the same rights. hold. That trustee shall have the same rights. CC] • The right creating/declaring a trust need not be contemporaneous or inter-parties. the court may appoint a trustee.1] • If a trustee is necessary to carry into effect a will/instrument. title to which he holds. CC] • While an implied trust may be established by parol evidence. [Art. the court may appoint a new trustee to act alone or jointly with others. 2) IMPLIED – Deducible from the nature of the transaction as matters of intent. Sec. or 2) the property was located. [Heirs of Lorenzo Yap v.SPECIAL PROCEEDINGS IV. a) RESULTING TRUSTS – Based on equity that valuable consideration (and not title) determines the equitable title/interest. [Tiangco v. Molo-Peckson (1962)] A trust shall not fail because the trustee appointed declines. Molo-Peckson (1962)] • Exception: If the power to revoke was reserved. CC] General rule: A voluntary trust is irrevocable without the consent of the beneficiary. Beneficiary’s acceptance is necessary. [Art. TRUSTEES • • REMEDIAL LAW Rule 98 applies only to express trusts under CC. and are presumed always to have been contemplated by parties.

if the testator so directed/requested. • Proceedings if the trustee is appointed abroad: Philippine land is held in trust for Philippine residents. Perez (1962)] ESTATE’S SALE/ENCUMBRANCE [Rule 98. the possession of the property by the trustee is not an adverse possession. and the beneficiary knows of the repudiation. • Requires petition of a beneficially interested person. Grano] • General Rule: A trustee cannot acquire the trust estate by prescription because for the purpose of prescription. the trustee shall then file the bond. 3) If trustee assumes to be possessing in his own right and thus renounces the trust. 9] • If estate’s sale/encumbrance is necessary/expedient. Sec. WON written: [Rule 98. • Requires notice to all interested parties. Proceedings shall conform as much as possible with the provisions on a guardian’s sale/encumbrance of a ward’s properties. The court may cancel the bond exemption anytime. • Court may order inheritance tax appraisers to assist in the appraisal of the estate. EXECUTOR/ADMINISTRATOR Trustee Holds an office of trust Duties may cover a wider range. Sec. Failure to file bond is considered as decline/resignation of the trust. 4) To settle his accounts in court and deliver the remaining estate to those entitle. or 2) Any trustee. 7] TRUSTEE’S REMOVAL/RESIGNATION [Rule 98. 7] 2) To manage the estate and faithfully discharge his trust. it shall be fixed by the court. Sec. 2) If trustee becomes insane or otherwise incapable/unsuitable of discharging the trust. 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. Court may exempt from giving bond: 1) A trustee under a will. payable to the Philippine government and sufficient and available to protect any party in interest. [Rule 98. 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.5] • Before entering his duties. clear and unequivocal repudiation of the trust.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. the court will declare the trust vacant and appoint a new trustee. Sec. 3) To render an accounting under oath. • 100% UP LAW UP BAROPS 2008 Page 112 of 227 . • Exception: If excused by the court in any year. • Exception: If inventory was already filed. 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. 8] • Grounds for removal of a trustee: 1) If essential to the interests of the party petitioning the removal. • It is the trustee’s duty to deliver the properties to the beneficiary free from all liens and encumbrances. once a year until the trust is fulfilled. 6] 1) To make and return the estate’s inventory. if all persons beneficially interested are of full age and request the exemption. Sec. [De Leon v. • • • TRUSTEE VS. TRUSTEE’S BOND [Rule 98. whether the trustee was ppointed by the court or by a will. Cristobal] • Exception: If there is an open. Sec. [Salinas v. [Martinez v. Tuazon] A trustee may resign if it is proper for the court to allow him. notice to trustee and hearing. at the trust’s expiration. [Palma v. Molo-Peckson (1962)] [Araneta v. succeeding trustees need not file. but only a possession in behalf of the owner of the same. The trust shall vest in the new trustee as if he was originally appointed. a trustee must file a bond with the COC in an amount fixed by the court. court may order such sale/encumbrance and reinvestment/application of the proceeds. [Rule 98.

medical. Republic] Adoption is a privilege — not innate or fundamental.” 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. Rule on Adoption] 100% UP LAW UP BAROPS 2008 Page 113 of 40 . It is a privilege which is governed by the state’s determination of what is for the best welfare of the child. 25. but rather a right created by statute.SPECIAL PROCEEDINGS V. 8) NEGLECTED CHILD – One whose basic needs have been deliberately unattended or inadequately attended to by his parents/guardian. 3) VOLUNTARILY COMMITTED CHILD – One whose parents knowingly and willingly relinquish parental authority over him in favor of DSWD. Temporary absences for professional. 7) DEPENDENT CHILD – One who is without a parent/guardian/custodian. [Sec. 1. ADOPTION REMEDIAL LAW exceeding 60 days in 1 year does not break the continuity requirement. 2. When the parent has abandoned the child to be adopted. • Constructive notice is enough where the residence of the parents unknown. his guardian/adopter. Rule on Adoption] RA 8552 (Domestic Adoption Act) governs the domestic adoption of Filipino children. health. notice to the former is not required. [Santos v. 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. freed of the parental authority of his biological parents. 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. [Sec. [Lahum v. 5) FOUNDLING – A deserted/abandoned infant/child whose parents/guardian/relatives are unknown. (1966)] A. 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. or in case of rescission of adoption. business. DEFINITION [Sec. placement history. social. not a Filipino citizen. Arazanso. spiritual. 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. 2002)] expressly repealed Rules 99 and 100. [Prasnick v. or incompetence to discharge parental responsibilities. 14) ALIEN – Any person. 9) CHILD STUDY REPORT – Study made by the court social worker of the child’s legal status. 4) INVOLUNTARILY COMMITTED CHILD – One whose parents have been permanently and judicially deprived of parental authority over him due to abandonment. 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. 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. 3. Rule on Adoption] 1) CHILD – Person below 18 years of age at the time of the filing of the petition for adoption. thus causing such child to lose his true identity and status. Elepano (1991)] • No court may entertain it unless it has jurisdiction over the parties and the res – the personal status of the parties. 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. Rule on Adoption] • OBJECTIVES [Sec. substantial/continuous/repeated neglect and abuse. psychological. Sibulo (2003)] • IN REM PROCEEDING • Adoption is not an adversarial proceeding since it has no particular defendant. or a child committed to an orphanage/institution with unknown facts of birth and parentage and registered in the Civil Register as a “foundling. ethno-cultural background and that of his biological family needed in determining the most appropriate placement for him. [Republic v. 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. who enters and remains in the Philippines and is in possession of a valid passport or travel documents and visa.

b) in possession of full civil capacity and legal rights. • Exception: 1) If one spouse seeks to adopt the legitimate child of the other spouse. 5) A child whose adoption was rescinded. after the termination of the guardianship and clearance of his financial accountabilities.SPECIAL PROCEEDINGS 1) The child’s best interest is the paramount consideration in the child’s care/custody/adoption. 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. said he was consistently considered and treated by the adopters as their own child since minority. QUALIFIED ADOPTERS [Sec. 7) A child not disqualified by law or these rules. provided the other spouse consented. c) of good moral character. SPECIFIC ALLEGATIONS Adoption] [Sec. by a qualified adopter to raise the status of the former to that of legitimacy. 3) Adoptee’s estate’s value and character. f) at least 16 years older than the adoptee. e) who is emotionally and psychologically capable of caring for children. g) who is in a position to support and care for his children in keeping with the means of the family. • If the spouses jointly adopt or one spouse adopts the illegitimate child of the other. joint parental authority shall be exercised by the spouses. by the other spouse. 2) If one spouse seeks to adopt his own illegitimate child. REMEDIAL LAW QUALIFIED ADOPTEES [Sec. 4) A person of legal age regardless of civil status. Rule on Adoption] 1) Any Filipino citizen: a) of legal age. 6) A child whose biological/adoptive parents died. neglected. 7-10. 3) An illegitimate child. • Exception: when the adopter is: (1) the adoptee’s biological parent. 3) The guardian with respect to the ward. 7. b) whose country has diplomatic relations with the Philippines. baptismal/foundling certificate and school records. 2) Any alien: a) possessing the same qualifications as Filipinos. surname or names by which the adoptee is to be known and registered in the Civil Registry. surname or names. age and residence as shown by his birth record. Rule on Adoption] • Family Court of the province/city where the prospective adoptive parents reside. 5. 2) The legitimate child of one spouse. 3) If the spouses are legally separated. But no proceedings shall be initiated within 6 months from the time of the parents’ death. 2) The State shall provide alternative protection and assistance to foundlings. d) has not been convicted of any crime involving moral turpitude. 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 . e) whose government allows the adoptee to enter his country as his adopted child. orphaned and abandoned children. (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. 6. 4. 4) First name. VENUE [Sec. • JOINT ADOPTION BY SPOUSES • General rule: Husband and wife shall jointly adopt. PETITION FOR ADOPTION ALLEGATIONS COMMON TO ALL PETITIONS [Sec. if. prior to the adoption. (2) one who seeks to adopt the legitimate child of his Filipino spouse. d) certified by his diplomatic/consular office to have the legal capacity to adopt in his country. (2) the spouse of the adoptee’s parent. Rule on Adoption] 1) Adoptee’s first name. 2) That the adoptee is not disqualified by law. 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. Rule on Adoption] 1) Any person below 18 years of age who was voluntarily committed to DSWD or judicially declared available for adoption.

4(2). and the names by which the adoptee has been known (to be stated in the caption). and their residence. showing adoptee’s name. • c) d) If petition for adoption of foundling. if such reports were not attached to the petition due to unavailability at the time of the filing. If a change in the adoptee’s name is prayed for. If the adopter is an alien or residing abroad but qualified to adopt. Court has discretion to furnish copies of the order to OSG. and 6) Directive to the social worker to conduct counseling sessions with the biological parents and to submit a report before the hearing. 12.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. 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. abandoned. in a newspaper of general circulation in the province/city where the court is situated. 5) Directive to the social worker to prepare and submit child and home study reports before the hearing. dependent or neglected Parents' names and residence. Order’s contents: 1) Adoptee’s registered name in the birth certificate. 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. 2) Affidavit of consent of: a) The adoptee. 2) the documents in support thereof are valid and authentic. b) The child’s biological parents or legal guardian. e) The adopter’s and the adoptee’s spouses. the social worker shall register the adoptee and secure a certificate of foundling or late registration. c) The adopter’s and the adoptee’s legitimate and adopted children who are 10 years of age or over. if any. 100% UP LAW UP BAROPS 2008 Page 115 of 40 . Rule on Adoption] 1) Birth/baptismal/foundling certificate and school records. the court shall issue an order. 3) Complete name which the adoptee will use if the petition is granted. Rule on Adoption] • Upon satisfactory proof of publication and jurisdiction. 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. If the adoptee’s birth was not registered. The social worker shall establish that: 1) the child is legally available for adoption. with copy furnished the petitioner. If the adopter is an alien. 4) that the adoption shall inure to the child’s best interests. 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 home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board. If unknown. notice to OSG is mandatory. 5) Home study report on the adopters. 2) that his government allows the adoptee to enter his country as his adopted child in the absence of the certification required under Sec. • • • ORDER OF HEARING [Sec. he shall make the proper recommendation to the court. 4) If petitioner is an alien. 14. Rule on Adoption] • The social worker shall verify with the Civil Registry the adoptee’s real identity and registered name. if known. 2) Petition’s purpose. d) The adopter’s illegitimate children living with him who are 10 years of age or over. 7(b). DSWD and the adoptee’s biological parents. • CHILD AND HOME STUDY REPORTS [Sec. 3) Child study report on the adoptee and his biological parents. abandoned. the hearing shall not be within 4 months after the last publication of the notice nor within 30 days prior to an election. the home study report must show: 1) his legal capacity to adopt. if 10 years of age or over. RA 8552. • If the application is for change of name. 3) that the adopter has sincere intentions. 11. age and residence. nullity or legal separation of the adopter and of the adoptee’s biological parents. child-placement/child-caring agency or proper government agency. 13. If the social worker finds that there are grounds to deny the petition. and 6) Decree of annulment. dependent or neglected children a) b) c) d) • PETITION’S ANNEXES [Sec. Rule on Adoption] HEARING [Sec. the court shall hear the petition.

19. 19. Rule on Adoption] 1) repeated physical and verbal maltreatment despite having undergone counseling. temporary parental authority shall be vested in the adopter. the court is convinced from the trial custody report and the evidence that the adoption shall redound to the adoptee’s best interests. • ADOPTION DECREE [Sec. • • • • ADOPTION’S RESCISSION • Adoption may not be rescinded by the adopter. Rule on Adoption] • Rationale: Adoption is for the child’s best interests. b) to issue a birth certificate which shall not bear any notation that it is a new/amended certificate. 18. restricting the purposes for which it may be used. 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 this period. General rule: An alien adopter must complete the 6-month trial custody. Rule on Adoption] • If the supervised trial custody is satisfactory to the parties. within 30 days from receipt of the certificate of finality. his natural parents should be joined as indispensable parties to the suit for damages. which can be opened only upon order of the court which issued the adoption decree. [Tamargo v. Rule on Adoption] • After compliance with jurisdictional requirements. all adoption hearings shall be confidential and shall not be open to the public. 3) ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest. 2) attempt on the adoptee’s life. 2) Order for the COC to issue to the adopter a certificate of finality upon expiration of the 15day reglementary period for appeal. but he may disinherit the adoptee under Art. • 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. GROUNDS FOR RESCISSION THAT ARE COMMITTED BY THE ADOPTER [Sec. WHO MAY FILE THE PETITION FOR RESCISSION [Sec. 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. an adoption decree shall be issued. The trial custody shall be monitored by the social worker who submitted and prepared the case studies. 19. [Sec. If the child is below 7 years of age and is placed with the prospective adopter through a DSWD pre-adoption placement authority. 3) sexual assault/violence. the court may order the necessary information to be released. the adopting parents cannot assume any liability therefor. 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. e) If the adoptee is a foundling. the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. 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. • SUPERVISED TRIAL CUSTODY [Sec. the court shall give the adopter trial custody of the adoptee for at least 6 months. 15. the decree shall be submitted to the Civil Registrar where the issuing court is situated. Rule on Adoption] • ADOPTION DECREE’S CONTENTS 100% UP LAW UP BAROPS 2008 Page 116 of 227 . Rule on Adoption] • Before issuance of the adoption decree. d) to submit to the court issuing the adoption decree proof of compliance within 30 days from receipt of the decree. During the period. CC. • Exception: 1) A former Filipino citizen who seeks to adopt a relative within the 4th degree. The social worker shall submit to the court a report on the result of the trial custody within 2 weeks after its termination. REMEDIAL LAW 1) Name by which the child is to be known and registered. 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. 2) ensure that all measures to strengthen the family have been exhausted. even if the petitioners die before its issuance. VENUE [Sec. 4) abandonment or failure to comply with parental obligations. Rule on Adoption] • Family Court of the city/province where the adoptee resides. 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. within 30 days from receipt of the certificate of finality. 16.SPECIAL PROCEEDINGS The petitioner and the adoptee must personally appear. • • CONFIDENTIALITY OF PROCEEDINGS AND RECORDS [Sec. 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. 2) One who seeks to adopt the legitimate child of his Filipino spouse. c) to seal the original birth certificate in the civil registry records. All related records shall be kept strictly confidential. 20. to annotate the adoption decree on the foundling certificate. Accordingly. 919. In case of change of name. The adoption decree shall take effect as of the date the original petition was filed.

if the adoptee is incapacitated. 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. VENUE [Sec. 26.SPECIAL PROCEEDINGS • • The adoptee who is over 18 years of age. 31. 22. 2) To ensure that the child enjoys the same protection accorded to children in domestic adoption. 3) The successional rights shall revert to its status prior to adoption. • Exception: If the petitioner is the child’s biological parent or the spouse of such parent. 6) Police clearance issued within 6 months before the filing of the petition. in RA 8043 and other Philippine laws. Rule on Adoption] • The court shall order the adverse party to answer the petition within 15 days from receipt of a copy thereof. it shall order the rescission of adoption. 2) If petitioner is married. With the assistance of: 1) DSWD. Vested rights acquired prior to judicial rescission shall be respected. 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. 4) Physical. PETITION’S ANNEXES [Sec. • Exception: If the adoptee is the spouse’s legitimate child. and that adoption of a Filipino child is allowed under his national laws. 2) After recovery from incompetency. medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist. if he is over 18 years of age but is incapacitated. • The court shall order that: 1) The biological parents’ parental authority. Rule on Adoption] 1) Age of the petitioner and of the child to be adopted. 2) His guardian/counsel. 3) To ensure that the placement does not result in improper financial gain for those involved. 28. 21. QUALIFIED ADOPTEES [Sec. 4) Non-conviction of crimes involving moral turpitude. including the child to be adopted. divorce decree or judgment dissolving the marriage. 30. and that he has undergone the appropriate counseling from an accredited counselor in his country. Rule on Adoption] • Only a child legally available for domestic adoption may be the subject of inter-country adoption. PETITION FOR ADOPTION PETITION’S CONTENTS [Sec. the name of the spouse who must be joined as co-petitioner. 2) The reciprocal rights and obligations of the adopter and the adoptee shall be extinguished. 8) That he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency. 5) Eligibility to adopt under his national law. Rule on Adoption] • If the court finds that the petition’s allegations are true. 9) That he possesses all the qualifications and none of the disqualifications provided in this Rule. B. 2) Marriage contract. WHEN TO FILE THE PETITION FOR RESCISSION [Sec. 6) That he can provide the proper care and support and instill the necessary moral values and example to all his children. if he is a minor. 5) Income tax returns or any authentic document showing the petitioner’s current financial capability. JUDGMENT [Sec. Rule on Adoption] • Within 5 years: 1) After reaching the age of majority. Rule on Adoption] 1) Petitioner’s birth certificate. Rule on Adoption] 1) To consider inter-country adoption as an alternative means of child care. 24. 3) Sworn statement of consent of petitioner’s biological/adopted children above 10 years of age. as of the date of judgment of judicial rescission. 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. 29. 7) That he agrees to uphold the basic rights of the child. OBJECTIVES [Sec. ORDER TO ANSWER [Sec. Rule on Adoption] 1) Family Court having jurisdiction over the place where the child resides or may be found. Rule on Adoption] • RA 8043 (Inter-Country Adoption Act) governs the adoption of Filipino children by: 1) Foreign nationals. or the DSWD’s legal custody. 2) Directly with the Inter-Country Adoption Board. shall be restored if the adoptee is still a minor/incapacitated. 27. 23. showing that petitioner is at least 27 years of age and at least 16 years older than the child at the time of application. 4) The adoptee shall use the name stated in his original birth/foundling certificate. INTER-COUNTRY ADOPTION SCOPE AND APPLICABILITY [Sec. REMEDIAL LAW cannot be placed in a foster/adoptive family or cannot be cared for in the Philippines. 2) Filipino citizens permanently residing abroad. SERVICE OF JUDGMENT [Sec. if the adoptee is incompetent. 3) Petitioner’s capacity to act and assume all rights and responsibilities of parental authority under his national laws. if the child 100% UP LAW UP BAROPS 2008 Page 117 of 40 .

and commitment is for the public welfare or the welfare of insane person. Sec. REMEDIAL LAW VI. [Marcaida v. 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. 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. 2) Copies of the notice of hearing shall be served upon: a) The person alleged to be insane. 3) The court shall order the sheriff to produce the alleged insane person (if possible) on the date of hearing. 100% UP LAW UP BAROPS 2008 Page 118 of 227 . 2-3] 1) The court shall fix a date and place for hearing where all concerned may appear to contest the petition. 2) If the above refuses. Who may file: 1) Person in custody or having charge of the insane person. PETITION FOR COMMITMENT [Rule 101.SPECIAL PROCEEDINGS 7) Character reference from the local church/minister. 32. 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. the Health Secretary with the assistance of the city/provincial fiscal. 4) Upon satisfactory proof that the commitment is necessary and that his relatives are unable to take proper custody and care of him. [Sec. and b) The one having charge of him. 1 and 5] • • Petition is filed in the RTC of the province where the person alleged to be insane is found. COURT ACTION ON THE PETITION [Rule 101. the court shall order his commitment in a hospital/asylum. or on such of his relatives residing in the province/city as the judge may deem proper. 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. it shall transmit the petition to the Inter-Country Adoption Board. The effects of such adoption shall be governed by the law of the Philippines. Sec.

or b) since the receipt of the last news about him. the spouse present must institute a summary proceeding for the declaration of presumptive death. CC] • If a person disappears from his domicile. Sec. Art. 385. [Chin Ah Foo v. [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. 2. Sec. Hortiguela (1937)] Note: However. if he left an administrator of his property. 4] The Health Secretary cannot order release without the approval of the RTC. 2. WHO MAY PETITION [Rule 107. his whereabouts is unknown. Sec. 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. [Jones v. ABSENTEES BURDEN TO PROVE INSANITY • PROCEDURE FOR DECLARATION OF ABSENCE UNDER RULE 107 Petition for declaration of absence To prove insanity. 2) After 5 years. 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 burden is on the party who alleges insanity. Art. for purposes of contracting a subsequent marriage. the RTC cannot order release without recommendation from the Health Secretary. 41-43. [Regalado] • APPOINTMENT OF A REPRESENTATIVE [Rule 107. REMEDIAL LAW VII. CC] 1) After 2 years: a) from the disappearance and without any news about the absentee. Art. CC] 1) Spouse present. FC and Rule 131. 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. PETITION FOR DECLARATION OF ABSENCE AND APPOINTMENT OF ADMINISTRATOR/TRUSTEE WHEN TO PETITION [Rule 107. Sec. Sec. 100% UP LAW UP BAROPS 2008 Page 119 of 40 . Concepcion]. On the other hand. 1.SPECIAL PROCEEDINGS 5) The court shall make proper provisions for the custody of the ward’s property until a guardian is properly appointed. Art. 384. 381. 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.

Art. KINDS OF HC WRIT [Lee Yick Hon v. and serve a copy on the other interested parties on or before the hearing. [Bouvier’s Law Dictionary] The HC writ is a speedy and effectual remedy to relieve persons from unlawful restraint. to do. Publish the notice of hearing once a week for 3 consecutive weeks before the hearing. • Administrator/trustee shall cease in the performance of his office. 3) If a 3rd person appears. 3) Relatives who will succeed by intestacy. [Feria v. Art. the court shall fix the hearing’s date and place. 6] The court shall safeguard the absentee’s rights and interests and shall specify the representative/trustee/administrator’s powers. 3] 1) Jurisdictional facts. regulating them by the rules on guardians. 8] 1) If the absentee appears personally or by agent. and to have the issue ascertained as to WON he is held under lawful authority. the court shall grant the petition and appointing the absentee’s representative/trustee/administrator. Service by leaving the original with the person to whom the writ is directed and preserving a copy Hearing by the court • Recommitment. 6. WRITS A. 383. [Rule 107. or the spouse is a minor/incompetent. 2) If absentee’s death is proved and heirs appear. [Rule 107. Sec. 4) Absentee’s properties. in a newspaper of general circulation in the province/city where the absentee resided. REMEDIAL LAW VIII. PETITION’S CONTENTS [Rule 107. [Cruz v. 386. Art. with the day and the cause of his caption and detention. 4] • • When a petition is filed. and is the best and only sufficient defense of personal freedom. b) Relatives who would succeed by intestacy. Sec. Sec. 382. [Rule 107. 7. obligations and remuneration. bail or discharge of the detained HEARING • Anyone appearing to contest the petition shall state his grounds in writing. 3) Names/residences of creditors and others who may have any adverse interest over the absentee’s property. to submit to and receive whatever the court shall consider in that behalf. Sec. showing by a proper document that he has acquired the absentee's property by title. 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. • Exception: If there is legal separation. CC] Execution of the writ by conveying the detained person before the court. the court issues the citation to the government officer having custody to show cause why the HC writ should not issue. 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. 2) PEREMPTORY WRIT – If the cause of the detention appears to be patently illegal. Noncompliance with this is punishable. CC] 1) The spouse present is preferred. 6. Sec. Sec. publication and the petition’s allegations. SCOPE AND APPLICABILITY • HC writ extends to: 1) All cases of illegal confinement/detention by which any party is deprived of his liberty. any competent person TERMINATION GROUNDS FOR TERMINATION [Rule 107.SPECIAL PROCEEDINGS 2) Heirs instituted in a will. [Rule 107. and the property shall be placed at the disposal of those who may have a right to it. 5] Upon proof of notice. at least 10 days before the hearing. 2) If the absentee has no spouse. [Ilusorio v. Copies of the notice of hearing shall be served upon the known interested persons. 4) Those who have some (over the absentee’s property) subordinated to the condition of his death. CA (2000)] • • • • WHO MAY BE APPOINTED REPRESENTATIVE/ADMINISTRATOR/TRUSTEE [Rule 107. Sec. It secures to a prisoner to have the cause of his detention examined and determined by a court of justice. Bildner (2000)] 100% UP LAW UP BAROPS 2008 Page 120 of 227 . 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. 2) Names/ages/residences of: a) Heirs instituted in the will. CC] Declaration of absence takes effect 6 months after its publication in a newspaper of general circulation and in the OG. CA (2000)] 2) If the rightful custody of a person is withheld from the one entitled to it. Sec.

Enrile (1986)] • Freedom may be lost due to external moral compulsion. Enrile (1986)] 1) A person continues to be denied any of his constitutional rights. the writ may still be applied for if: [Moncupa v. CA] • Rationale: Custody cases involving minors are prosecuted to determine custody rights over a child. [Tijing v. Director of Prisons] • Exception: HC is a proper remedy to enable parents to regain custody of a minor. • 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. Director (1948)] HC writ is not intended as a substitute for the functions of a trial court. Thus. and 4) Cause or commitment order (if it can be procured without impairing HC writ’s efficiency). not merely nominal/moral. 4) Imprisonment under lawful order. NOT A SUBSTITUTE FOR TRIAL’S ORDINARY COURSE • The HC writ does not lie to correct errors of fact or law. Military Commission (1987)] • The release that renders a petition for the HC writ moot and academic is one that is free from involuntary restraints. 4] 1) Custody under process/order by a court with jurisdiction. 3] 1) Fact of confinement/detention. though no application for the writ was made. [Moncupa v. the restraint of liberty must be an illegal and involuntary deprivation of freedom of action which must be actual and effective. Sec. the detained cannot be discharged because of informality/defect in the process/order. the victim is entitled to the courts’ protection as much as an individual who is illegally deprived of liberty by physical coercion. CA (2000)] a) There is deprivation of a constitutional right resulting in the person’s restraint. even if the minor is in the custody of a 3rd person of his own free will. or lack thereof. 2) The restraints are not merely involuntary but appear to be unnecessary. The writ cannot perform the function of a writ of error. [Olaguer v. 2) By whom. [Kelly v. the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. [In re: Azucena Garcia (2000)] It is necessary that the court judgment which resulted in the illegal deprivation of liberty is no longer appealable. Bildner (2000)] • It is not physical restraint alone which is inquired into by the HC writ. • ACTUAL AND EFFECTIVE RESTRAINT • The essential object of the HC writ is to inquire into inbvoluntary restraint and to relieve the detained person. b) The court has no jurisdiction to impose the sentence. HC WRIT’S ISSUANCE • General rule: If it appears that the writ should issue. Any restraint which will prejudice freedom of action is sufficient ground. Salazar] • Jurisprudence extended the definition of “restraint” to an accused who is out on bail and to convicts on parole. [Galvez v. Sec. [Harden v. or c) An excessive penalty was imposed. the COC issues the writ under the court’s seal. In the absence of exceptional circumstances. If a court has jurisdiction. [Villavicencio v. 3) If. Lukban (1919)] Contents of the writ: [Rule 102.SPECIAL PROCEEDINGS General rule: HC writ shall not issue if the restraint is voluntary. Sec. [In re: Azucena Garcia (2000)] RELEASE OF THE DETAINED • The sole issue in HC proceedings is detention. [Ilusorio v. 3) Charge/conviction for an offense in the Philippines. 5] • Exception: In emergency cases. use an assumed appellation. [Chavez v. 2) If jurisdiction appears after the writ is allowed. CA (1968)] • • • HC PETITION • A signed and verified petition must allege: [Rule 102. But the person served is deemed the person intended. • If the restraining person is unknown/uncertain. in which case the writ is in the nature of a collateral attack against a final but void judgment. 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. even if the judgment/order is erroneous. HC WRIT’S SERVICE 100% UP LAW UP BAROPS 2008 Page 121 of 40 . [Rule 102. as a consequence of a judicial proceeding: [Feria v. because the sentence is void as to the excess. the petition for the issuance of the HC writ becomes moot and academic. provided the REMEDIAL LAW court had jurisdiction. CA (1994)] HC writ may not be validly resorted to in lieu of a lost/dismissed appeal. 3) An originally valid deprivation of liberty became arbitrary. When the release of the detained person is effected. HC writ is not ordinarily available in advance of trial to determine jurisdictional errors that may arise. 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. [Caunca v. Sec. its judgment/order is not subject to collateral attack by HC. in light of subsequent developments. Hence. 3) Where. the judge may issue the writ under his own hand and deputize any person to serve it.

and the party claiming custody must prove such facts RECOMMITMENT.000 to the aggrieved party. Sec. the nature and gravity of sickness/infirmity. otherwise. BAIL OR DISCHARGE if unlawfully restrained if lawfully committed for an offense court shall order 1) if offense is punishable discharge from by death . 2) To be delivered to an inferior officer to carry to jail. 9] return is considered prima return is only a plea of facie evidence of the cause the facts set forth of restraint therein. the court must be satisfied of the gravity of the alleged sickness/infirmity. b) Makes a false return. The writ cannot be disobeyed for formal defect. [Rule 102. or 2) If it was not made and signed by a sworn public officer in his official capacity. if it sufficiently appears therefrom: 1) Who has custody of the detained. he shall file a bond conditioned on appearance in court. Hence. serve the writ on any person who has such custody. [Rule 102. It shall be sworn to if: 1) The detained is not produced. Hearing may be adjourned for good causes. 17] • Exception: If there is lawful order/process of a court having jurisdiction. the circumstances of the transfer. 11] • Contents of the return: [Rule 102. appeal. he will be recommitted. A certiorari writ reaches the record. 7] REMEDIAL LAW apparent effect of the process. the court must immediately hear the case. [Rule 102. 4) If custody is transferred. before any judge of the same court. 14] • HC WRIT’S RETURN • The return is signed by the person who made it. • General rule: A person imprisoned for any criminal matter cannot be removed from one custody to another. Sec. Sec. Sec. [Feria v. Sec. BURDEN OF PROOF • General rule: The burden of proving illegal restraint rests on the petitioner who attacks the restraint. • • If detained person is admitted to bail. 8] • Exception: If the person to be produced has sickness/infirmity such that he cannot be brought before the court without danger. for the same offense. [Rule 102. 17] 4) Removing a prisoner from one custody to another. and 2) The judge/court before whom the detained must be produced. c) Refuses to deliver a true copy of the warrant/order of commitment. Sec.detained confinement. 18] • Exception: 1) By legal process. 3) Imprisoning a person set at liberty by the writ. 2) If person directed in the writ: a) Neglects/refuse to obey or make the return. 4) In cases of necessity or public calamity. [Rule 102. In the hearing. petitioner must allege and prove new matter that tends to invalidate the 100% UP LAW UP BAROPS 2008 Page 122 of 227 . [Rule 102. 10] 1) WON he has custody of the detained. 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. Sec. Sec. Sec. Sec. [Rule 102. 3) For trial. [Rule 102. Sec. If the return sets forth process which prima facie shows good ground for the prisoner’s detention. 18] PENALTIES 1) Forfeiture of P1. • • 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. If the detained person is not produced. the two may be used together for review purposes. shall be released. [Rule 102. [Regalado] • Rationale: An HC writ reaches the body and the jurisdictional matters. but person cannot be discharge is not effective released/discharged. Sec. PENALTY FOR REFUSING/DISOBEYING THE HC WRIT [Rule 102. 16] PUNISHABLE ACTS/OMMISSIONS 1) If COC refuses to issue the writ after allowance by the court and demand. CA (2000)] • Exception: [Rule 102. the court shall disregard matters of form and technicalities of the authority/order of commitment. [Rule 102. detained person b) admit to bail. 15] [Rule 102. within 6 hours after demand. until copy of order is 2) if offense is NOT served on detaining punishable by death person. but not the record. Sec. 2) Copy of the authority for the custody. Sec. If detaining either: person does not desire to a) recommit to prison. with the court making provisions for the safekeeping of the detained person. 2) Punished for contempt. Sec. 12] • • When the writ is returned. 2) If he is absent. but not the body. 3) If the person is not produced in court. 14] Person set at liberty by the writ shall not be imprisoned for the same offense. HEARING ON THE RETURN [Rule 102.SPECIAL PROCEEDINGS • If the person to whom the writ is directed cannot be found or does not have custody of the detained person.

In light of the recent prevalence of extralegal killings and enforced disappearances (ELKED). Sec. • 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. However. A person’s home is his kingdom. 1. All the forces of technological age operate to narrow the area of privacy and facilitate intrusion into it. [Morfe v. In modern terms. Sec. 7. Sec. firmly distinguishing it from the public sector. Rationale: • The privacy of one’s person/family/home is a sanctified right in the history of constitutional law. SC exercised its enhanced power to promulgate rules to protect and enforce constitutional rights. it is fully deserving of constitutional protection. 5. In itself.e. 8. Consti: SC has review powers over all cases in which the constitutionality/validity of any treaty. to protect. The writ was adopted to provide for a remedy to protect the whole range of constitutional rights. 5. 8. 5[5]. The instrument originated in Mexico and has been constitutionally adopted by Latin American countries (except Cuba) to protect against human rights abuses. Art. Art. Consti accords the same protection to human rights given by amparo. the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society. 13 and 15. [Declaration on the Protection of All Persons from Enforced Disappearances] The Philippine Constitution does not explicitly provide for the writ. WRIT OF HABEAS DATA WRIT OF AMPARO VIS-À-VIS WRIT OF HABEAS DATA 100% UP LAW UP BAROPS 2008 Page 123 of 40 .5(2). Constitutional basis Amparo contra leyes Art. 5. which belongs to the individual. WRIT OF AMPARO • • AMPARO – Literally. 3. of the individual’s dignity and integrity) has become increasingly important as modern society developed. 2) Refusal of the State to disclose the fate/whereabouts of the person concerned. Sec. Sec. which even the king has to respect. including socio-economic rights. Sec. 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.SPECIAL PROCEEDINGS REMEDIAL LAW HD WRIT – An independent remedy to protect the right to privacy. • The right to privacy is accorded a recognition independent of its identification with liberty.e. 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. or refusal to acknowledge the deprivation of liberty. 1) • • • • • Amparo casacion Amparo administrative Amparo libertad C. without legal safeguards or judicial proceedings). especially the right to informational privacy. [Art. Protection of this private sector (i. A system of limited government safeguards a private sector. Sec. 18. especially during the time when they were governed by military juntas. Consti] • EXTRALEGAL KILLINGS – Killings committed without due process of law (i. several amparo protections are available under the 1987 Constitution. or regulation is in question Art.5(2)(a). international/executive agreement. The Grave Abuse Clause in Art. par. 8. presidential issuances. which the government can control.] B. law. which places such persons outside the protection of the law.

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. 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. 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. 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.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. including the update/rectification/suppression/destruction of the file/database or enjoinment of the threat * SAME SAME SAME SAME. 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 . verified and allege: 1) Petitioner's circumstances 2) Respondent's circumstances 3) Right violated or threatened to be violated. which should be within 7 days from issuance Contempt. exempt SAME. 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. 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. 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. but within 10 days from issuance Penalty for refusing to issue writ Service of writ SAME SAME * SAME 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. its nature. apply substituted service rules Xxx * SAME.

deny Xxx Xxx SAME xxx xxx xxx xxx Judgment Xxx SAME * SAME Xxx Return of service * Upon judgment's finality. although it is the court's discretion to require petitioner to submit evidence SAME Summary hearing Allowed. enforce within 5 days Executing officer must make return within 3 days from enforcement 100% UP LAW UP BAROPS 2008 Page 125 of 40 . 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. 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.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. otherwise. 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.

on questions of law.SPECIAL PROCEEDINGS Xxx Appeal Xxx Appeal to SC under Rule 45. 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 . the court shall not dismiss it but shall archive it * After 2 years from notice of archiving to petitioner. and within 5 days from notice of adverse judgment * Appeal has same priority as HC cases If petition cannot proceed for a valid cause. 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.

2] • A petition for change of name shall be signed and verified by the person desiring his name changed. v. Republic] Petition should be filed by applicant upon reaching the age of majority. CHANGE OF NAME VENUE [Rule 103. 3) The name asked for. 3) To avoid confusion. PETITION’S CONTENTS [Rule 103. The OSG 100% UP LAW UP BAROPS 2008 Page 127 of 40 . 2) The cause for which the change of the petitioner's name is sought. unaware of his/her alien parentage. All aliases of the applicant must be set forth in the petition’s title. or extremely difficult to write/pronounce. or some other person on his behalf. is essential in order to vest the court with jurisdiction. As such. legitimation). 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. [Go Chiu Beng v. Sec. 2) Consequence of a change in status (e. [Alfon v. Republic (1967)] The name that can be changed is the name that appears in the civil register. [Laperal v. [Ng Yao Siong v. 4) All names by which petitioner is known.SPECIAL PROCEEDINGS IX. • WHO MAY OPPOSE PETITION [Rule 103.g. and not in the baptismal certificate or that by which the person is known in the community. 2) Fixing a date and place of hearing. all in good faith and without prejudicing anybody. Sec. [Ang Chay et al. Republic (2007)] COURT ACTION [Rule 103. A separate petition for change of name must be filed for his/her spouse and children. 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. Sec. not a jurisdictional requirement. Republic (1973)] Sex reassignment is not a valid ground to change one’s first name (applies to both Rule 103 and RA 9048). 2) The Solicitor General (OSG) or the proper provincial/city fiscal shall appear on behalf of the Republic of the Philippines. Republic (1970)] 5) A sincere desire to adopt a Filipino name to erase signs of former alienage. such defect would be fatal even if said aliases are contained in the body of the petition. 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. Republic (1966)] Legal separation is not a ground for the female spouse for a change of name under Rule 103. [Secan Kok v. Copy of the judgment shall be served upon the civil registrar. [Regalado] An alien can petition for a change of name but he must be domiciled in the Philippines. Republic (1962)] A change of name granted by the court affects only a petitioner. Republic (1980)] 4) Having continuously used and been known since childhood by a Filipino name. [Regalado] Court order fixing the date and place for hearing Publication of the court order fixing the date and place of hearing. [Silverio v. 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. particularly on publication. [Oshito 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. [Ong Huan Tin v. strict compliance with all jurisdictional requirements. The lack of verification is not a ground for dismissing the petition. Republic (1965)] Includes change in surname • • • • • • A change of name is a proceeding in rem. It shall contain: [Secan Kok v. 4] 1) Any interested person. dishonorable. 3] • The court shall promulgate an order: 1) Reciting the purpose of the petition. 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. Sec. [Uy v. 1] REMEDIAL LAW A. Republic (1972)] Verification is a formal. otherwise.

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. and exercise appellate jurisdiction PETITION’S CONTENTS UNDER RA 9048 100% UP LAW UP BAROPS 2008 Page 128 of 227 . Republic] WHO MAY FILE PETITION [RA 9048. 3) To avoid confusion. As such. The Civil Registrar General may impugn the decision based on grounds in RA 9048. 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. Sec. • 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. • All petitions for correction of errors/change of first names/nicknames may be availed of only once. and can be corrected/changed only by reference to other existing record/s: Provided. 4] 1) When the name is ridiculous. the court shall. adjudge that such name by changed in accordance with the prayer of the petition. 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. 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. In this case.SPECIAL PROCEEDINGS must be notified by service of a copy of the petition. if proper and reasonable cause appears for changing the name of the petitioner. age. 3] 1) Local Civil Registry of the city/municipality where the record being sought is kept. 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. CLERICAL OR TYPOGRAPHICAL ERROR [RA 9048. Sec. That no correction must involve the change of nationality. Sec. such as misspelled name or misspelled place of birth or the like. 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. 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. who shall forthwith enter the same in the Civil Register. Sec. however. 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. in terms of transportation expenses. status or sex of the petitioner. which is visible to the eyes or obvious to the understanding. Sec. B. 3) Philippine consulates: Only in cases of Philippine citizens who are residing/domiciled in foreign countries. time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed. there is no strict compliance with the publication requirement and renders the entire proceedings null and void since the court has not acquired jurisdiction. the 2 local civil registrars concerned will communicate to facilitate the processing of the petition. WHEN CHANGE OF NAME MAY BE GRANTED [Rule 103. [Jacobo v. Sec. REMEDIAL LAW APPLICATION OF RA 9048 TO CHANGES OF NAME OR CORRECTIONS OF ENTRIES IN THE CIVIL REGISTRY [RA 9048. dishonorable or extremely difficult to write/pronounce. 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. Sec. 4) Certification from appropriate law enforcement agencies that the petitioner has no pending case or no criminal record. 7] 100% UP LAW UP BAROPS 2008 Page 129 of 40 . 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. 3) For the petitioner. REMEDIAL LAW 1) Within 10 working days from receipt of the decision granting a petition. Republic (1973)] 1) The facts necessary to establish the merits of the 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. 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. or the consul general. 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) The erroneous entry which are sought to be corrected. • If the Civil Registrar General fails to exercise his power to impugn within the prescribed period. b) The correction of entries is substantial/controversial as it affects the civil status of a person. 5] • The petition must be published at least once a week for 2 consecutive weeks in a newspaper of general circulation. Sec. PUBLICATION REQUIREMENT [RA 9048. 3) He has appellate powers over the decision of the local civil registrars/consul generals. 5] 1) For the city/municipal civil registrar. the decision of the city/municipal civil registrar or the consul general shall become final and executory. 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.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. 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. 2) For the Office of the Civil Registrar General. Sec. COPIES OF PETITION TO BE FILED [RA 9048. 2) That the petitioner is competent to testify to the matters stated. ANNEXES TO THE PETITION [RA 9048. c) The basis used in changing the first/nick name of a person does not fall under those provided by law. 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. DUTIES AND POWERS OF THE CIVIL REGISTRAR GENERAL [RA 9048. Sec. 6] 1) Examine the petition and its supporting documents. DUTIES OF THE CITY/MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL [RA 9048. 4) All names by which petitioner is known.

15) Change of name. 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. 5) Grant/deny the petition. Sec. is essential in order to vest the court with jurisdiction. those affecting civil status. 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. 5) Judgments of annulments of marriage. 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 . within 15 days from notice of the petition or from the last date of publication of the notice VENUE [Rule 108. The civil registrar and all persons who have/claim any interest shall be made parties to the proceeding.e. Sec. 3) Deaths. 13) Judicial determination of filiation. 2) Cause reasonable notice to be given to the persons named in the petition. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION [Rule 108. 11) Election/loss/recovery of citizenship. citizenship. 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. 9) Acknowledgements of natural children. 7) Legitimations. 2) Marriages. Copy of the judgment shall be served upon the civil registrar. 2] Hearing on the petition Judgment granting/denying the petition. nationality and substantial errors) COURT ORDER AFTER FILING OF PETITION 1) Fix the date and place for the hearing. 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. strict compliance with all jurisdictional requirements.SPECIAL PROCEEDINGS X. 1] • Any person interested in any act/event/order/ decree concerning the civil status of persons. 8) Adoptions. Sec. particularly on publication. Substantial changes (i. who shall annotate the same RULE 103. 14) Voluntary emancipation of a minor. Court order fixing the date and place for hearing WHO MAY FILE PETITION [Rule 108. 4) Legal separations. and may also grant preliminary injunction for the preservation of parties’ rights pending such proceedings. 1] • RTC of the place where the corresponding civil registrar is located. As such. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY A. Publication of the court order at least once a week for 3 successive weeks in a newspaper of general circulation. 6) Judgments declaring marriages void ab initio. In either case. 4) Make orders expediting the proceedings. No mention of causing notice to be sent • Cancellation/correction of entries in the civil registry is a proceeding in rem. 10) Naturalization. 3) Cause the order to be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province. 12) Civil interdiction.

The appeal period may be interrupted by the filing of a MFR/MNT. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY UNDER RA 9048 • Note: See the section on change of name. [Regalado] In special proceedings. 2) If it determines who are the lawful heirs or the distributive shares. 2. Biascan (2000)] B. a notice of appeal and a record on appeal being required. 4) If it settles the account of an executor/administrator/trustee/guardian. Once the appeal period expires without an appeal/MFR/MNT. Sec. the nature of special proceedings declares them as appealable and as exceptions to Rule 41. 5) If it constitutes a final determination in the lower court of the rights of the party appealing. • • ADVANCE DISTRIBUTION [Rule 109.SPECIAL PROCEEDINGS upon the civil registrar concerned. Sec. 100% UP LAW UP BAROPS 2008 Page 131 of 40 . REMEDIAL LAW XI. the court may permit that the estate’s parts which are not affected by the controversy/appeal be distributed. • While some of the items in Rule 109. in proceedings relating to estate settlement or administration of a trustee/guardian. who shall annotate the same.1 may be considered as interlocutory under ordinary civil actions. 3) If it wholly or partially dis/allows a claim against a decedent’s estate. 2] • Notwithstanding a pending controversy/appeal in estate settlement proceedings. within 15 days from notice of the petition or from the last date of such notice. or any claim presented on the estate’s behalf in offset to a claim against it. 6) If it is the final order/judgment rendered in the case. [Testate Estate of Biascan v. APPEALABLE ORDERS/JUDGMENTS [Rule 109. 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. and affects the substantial rights of the person appealing. the period of appeal is 30 days. the order becomes final. Sec. upon compliance with Rule 90. Sec. APPEALS IN SPECIAL PROCEEDINGS ACTIONS TO BE TAKEN TO OPPOSE THE PETITION [Rule 108. [Regalado] Since multiple appeals are contemplated under this provision. • Exception: Appointment of a special administrator is not appealable. • Exception: Orders granting/denying a MFR/MNT. Sec. 1] 1) If it dis/allows a will. appeals in special proceedings necessitate a record on appeal as the original record should remain with the trial court.

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)//-->