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PART I. PRELIMINARY MATTERS Rule 72 Section 1. Subject of matter of special proceedings Rules of special proceedings are provided for in the following cases: (a) Settlement of estate of deceased persons (b) Escheat (c) Guardianship and custody of children (d) rustees (e) !doption (f) Recession and revocation of adoption (g) "ospitali#ation of insane persons (h) Habeas corpus (i) $hange of name (%) &oluntary dissolution of corporations (') (udicial approval of voluntary recognition of minor natural children (l) $onstitution of family home (m) )eclaration of absence and death (n) $ancellation or correction of entries in the civil registry *otes:
each special proceeding and that the matter is not a controversy between private parties purely. PART II & '(RISDICTION AND )EN(E* SETTLEMENT O+ ESTATE R(LE 7,. )EN(E AND PROCESSES Sec. 1. Where estate of deceased person settled. 1f the decedent is an inhabitant of the 2hilippines at the time of his death+ whether a citi#en or an alien+ his will shall be proved+ or letters of administration granted+ and his estate settled+ in the $ourt of 3irst 1nstance in the province in which he resides at the time of his death+ and if he is an inhabitant of a foreign country+ the $ourt of 3irst 1nstance of any province in which he had estate. he court first ta'ing cogni#ance of the settlement of the estate of a decedent+ shall e4ercise %urisdiction to the e4clusion of all other courts. he %urisdiction assumed by a court+ so far as it depends on the place of residence of the decedent+ or of the location of his estate+ shall not be contested in a suit or proceeding+ e4cept in an appeal from that court+ in the original case+ or when the want of %urisdiction appears on the record. N te" an! Ca"e"-
Difference between an acti n an! a "#ecial #r cee!in$ %Natcher v CA) Rule 1+ Section ,. (c) ! special proceeding is a remedy by which a party see's to establish a status+ a right+ or a particular fact.
Rule 1+ Section ,. (a) ! civil action is one by which a party sues another for the enforcement or protection of a right+ or the prevention or redress of a wrong.
)efinition his proceeding is intended to settle the entire estate )!a !e Re.e" /". CA %012. 1t would be absurd for the heirs to intentionally e4clude or leave a parcel of land or a portion thereof undistributed or undivided because the proceeding is precisely designed to end the community of interests in properties held by parties pro indiviso without designation or segregation of shares. Special 2roceedings for Settlement of Estate of deceased 5ay be testate+ where deceased left a will+ or intestate when there is no will 2robate of a will is mandatory and ta'es precedence over intestate proceedings
- Special proceedings are not limited to the cases enumerated in Section 1 of this Rule. it also includes cases which see' to establish the status or right of a party or a particular fact. /0autista: here is a significant common feature in all these special proceedings. 1t is apparent that the State has an overriding interest in
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1f in the course of intestate proceedings+ it is found the decedent left a will+ proceedings for the probate of the latter should replace the intestate proceedings+ regardless if an administrator has already been probated+ but without pre%udice that proceeding shall continue as an intestacy
Ahere proceedings commenced Sec. 1+ Rule 6, prescribing where the estate of the deceased is to be settled relates to venue and not %urisdiction hus+ place of residence of the deceased does not constitute an element of %urisdiction over the sub%ect matter but merely constitutive venue
$onversion from intestate to testate proceeding Re.n " /. Santia$ %03 P4il. 2502. *ote that mere discovery of a document purporting to be a will of the decedent after appointment of an administrator and assumption that decedent died intestate does not ipso facto nullify the letters already issued or even authori#e their revocation until will has been proved and allowed.
(riarte /". C+I6 Ne$r " %,, SCRA 2322. Arong 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. BresidesC he term ;resides; refers to ;actual residence; as distinguished from ;legal residence; or domicile.; 92ilipinas Shell 2etroleum $orporation vs. )umlao+ G.R. *o. ==???+ 3ebruary 6+ 1887: Garcia +ule /". CA %752. !esides" should be viewed or understood in its popular sense+ meaning+ the personal+ actual or physical habitation of a person+ actual residence or place of abode. 1t signifies physical presence in a place and actually stay thereat. ! death certificate is admissible to prove the residence of the decedent at the time of his death. Eu"ebi /. Eu"ebi 6 %352. he venue of the probate proceeding can be Duestioned only on appeal+ but certiorari is available if the impropriety of the venue (due to residence or location of the estate) appears on the record. 1f proceedings for the settlement of a decedent@s estate are filed in two or more courts+ and the Duestion of venue is raised+ the court in which the first case was filed shall have e4clusive %urisdiction to decide the issue of venue. P wer" an! !utie" f Pr bate c urt
C urt wit4 'uri"!icti n Rule 6,+ Section 1+ Rules of $ourt which substantially contains the foregoing rules still remain unamended after the passage of 0atas 2ambansa 0ilang 178 902 178:. Section 1 still spea's of ;$ourt of 3irst 1nstance+; instead of ;Regional rial $ourt; and ;province; which in other parts of the Rules had been changed to ;place.; 0ut under 02 178+ the %urisdiction over settlement proceedings is not limited to Regional rial $ourts but include 5etropolitan rial $ourts+ 5unicipal rial $ourts+ and 5unicipal $ircuit rial $ourts+ where the value of the estate does not e4ceed 2,<<+<<< outside 5etro 5anila or in 5etro 5anila+ 2=<<+<<<. >nder 2) 1<?, Shari@a courts have %urisdiction over the settlement of estates of 5uslims. 1f the value of the estate is beyond these %urisdictional amounts+ the proceedings should be commenced with the proper R $ (02 178 sections 18 and ,,) 1mportant rule: Cuenc /". C urt f A##eal"6 %752. he %urisdiction assumed by a court+ so far as it depends on the place of residence of the decedent+ or of the location of his estate+ shall not be contested in a suit or proceeding+ e4cept in an appeal from that court+ in the original case+ or when the want of %urisdiction appears on the record. his is to preclude different courts from assuming %urisdiction. )enue
Erders probate of the will+ grants letters of administration of the party best entitled thereto or any Dualified applicant+ supervises and controls all acts of administration+ hears and approves claims against the estate+ orders payment of lawful debts+ authori#es sale+ mortgage or any encumbrance of real estate+ directs the delivery of the estate to those entitled thereto Re.e" /. M "7ue!a %182. $ourt may pass upon the title of a certain property for the purpose of determining whether the
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same should or should not be included in the inventory but such determination is not conclusive and is sub%ect to final decision in a separate action regarding ownership. $ourt cannot ad%udicate or determine title to properties claimed to be part of the estate and which are eDually claimed by outside parties cannot e4pand to collateral matters not arising out of or in any way related to the settlement of the properties of the deceased Fuestion of ownership is as a rule+ an e4traneous matter which the probate court cannot resolve with finality 'i9ene: /". IAC. Res %udicata does not e4ist between an action for the recovery of possession and ownership and the settlement of estate because there is a difference in cause of action. he action for settlement of estate was lodge with the R $ acting as a probate court while the action for recovery of possession and ownership was lodge with the R $ acting in its general %urisdiction. he determination of the probate court of title of the property is merely provisional. $ollation v. Erder of E4clusion or 1nclusion in 1nventory De Le n /. CA %822 $ollation before an order of distribution is merely an order to include the properties in the inventory and is merely interlocutory Ahether collation e4ists or not are issues to be determined later when an order for distribution of the estate is to be made after determination of the net remainder of the estate made *o e4ecution may issue where there is an adverse claimant
)ita /. M ntan >1? SCRA >08. 1f both spouses die+ the con%ugal partnership shall be liDuidated in the testate intestate proceedings of either. 1t is not necessary to file a separate proceeding in court for the proper disposition of the estate of the deceased wife where there is already a pending proceedings in settlement of the estate of the deceased husband Sec. ,. 2rocess. 1n the e4ercise of probate %urisdiction+ $ourt of 3irst 1nstance may issue warrants and processes necessary to compel the attendance of witnesses or to carry into effect their orders and %udgments+ and all other powers granted them by law.
1f a person does not perform an order of %udgment rendered by a court in the e4ercise of its probate %urisdiction+ it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or %udgment+ or is released. Sec. =. 2resumption of death. 3or purposes of settlement of his estate+ a person shall be presumed dead if absent and unheard from for the periods fi4ed in the $ivil $ode. 0ut if such person proves to be alive+ he shall be entitled to the balance of his estate after payment of all his debts. he balance may be recovered by motion in the same proceeding. *o independent action for declaration of presumption of death disputable presumption established by the rules of evidence that a person not heard from in 6 years is dead+ may arise and be invo'ed either in an action or in a special proceeding+ which is tried and heard by+ and submitted for decision to a competent court. 1ndependently of such action or special proceeding+ the presumption of death cannot be invo'ed nor can it be made the sub%ect of an action or special proceeding (#n !e Nicolai S$atro%)
E;ce#ti n" t Pr bate C urt<" Li9ite! 'uri"!icti n C ca /. = rr 9e 6 %702 Ahether a particular matter should be resolved by the R $ in the e4ercise of its general %urisdiction or its limited probate %urisdiction is not a %urisdictional issue but a mere Duestion of procedure and can be waived Sec. 7. Ahere estate settled upon dissolution of marriage. Ahen the marriage is dissolved by the death of the husband or wife+ the PART III & SETTLEMENT O+ T@E ESTATE community property shall be inventoried+ administered+ and liDuidated+ and the debts thereof paid+ in the testate or intestate proceedings of the TO better un!er"tan! t4e rule"6 re9e9ber t4at deceased spouse. T4ere are , Ain!" f "ettle9ent1f both spouses have died+ the con%ugal partnership shall be liDuidated in the testate or intestate proceedings of either. >. E;traBu!icial "ettle9ent Su99ar. "ettle9ent %Rule 7?.>2 2.
f e"tate" f
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UP LAW BAROPS 2007 4 of 95 ONE UP LAW . an! a$ain"t t4e e. 1t shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (7) years after the death of the decedent. ii. Acti n b.traBu!icial an! Su99ar. E4tra%udicial settlement by agreement between heirs.ecut r"Da!9ini"trat r" iii. E. All wance r !i"all wance f will" %te"ta9entar. = n!" f e. he parties to an e4tra%udicial settlement+ whether by public instrument or by stipulation in a pending action for partition+ or the sole heir who ad%udicates the entire estate to himself by means of an affidavit shall file+ simultaneously with and as a condition precedent to the filing of the public instrument+ or stipulation in the action for partition+ or of the affidavit in the office of the register of deeds+ a bond with the said register of deeds+ in an amount eDuivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any %ust claim that may be filed under Section = of this rule.. 1f there is only one heir+ he may ad%udicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds.e! %rule" 73C012 a. Clai9" a$ain"t t4e e"tate ii.7) 2robate of wills (rules 6J-68) 2etition for letters of administration in cases of intestacy (rule 68) (udicial administration is not favored. N te" an! ca"e" H1+ Rule 6= is an e4emption to the rule that when a person dies leaving property+ it should be %udicially administered and the competent court should appoint a Dualified administrator. Pa. Ahen the heirs are all of lawful age and there are no debts+ there is no reason to burden the estate wit the costs and e4penses of an administrator. General # wer" an! !utie" i/. r letter" f a!9ini"trati n wit4 r wit4 ut t4e will anne.22 . Settle9ent f E"tate" Rule 7? & Su99ar. he different modes of transmission of the property of the decedent may be through testamentary+ legal or intestate+ or mi4ed succession. Deter9inati n f t4e #r #ertie" inclu!e! in t4e e"tate i. "ucce""i n2 b. Re/ cati n f a!9ini"trati n c.1) Summary settlement of estates of small value (6=. i. Sale"6 9 rt$a$e"6 an! t4er encu9berance" f t4e #r #ert.ecut rDa!9ini"trat r iii. Recourse to an administration proceedings even if the estate has no debts is sanction only if the heirs have good reason for not resorting to an action for partition. A. Settle9ent f E"tate" Sec.9ent f !ebt" i/. he fact of the e4tra%udicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the ne4t succeeding section. 1. O## "in$ i""uance f letter" te"ta9entar. I""uance f letter" f a!9ini"trati n r letter" te"ta9entar. #f partition is possible& no need to burden the estate %ith the costs of an administrator Ahat constitutes a Bgood reasonC depends on the circumstances of the case."9all /alue %Rule 7?. f t4e !ece!ent After t4e c4ar$e" re7uire! b. law t be #ai! 4a" been "ati"fie! b.1) 2artition (Rule I8+ also mentioned in rule 6=. Acc untabilit. /. 'u!icial "ettle9ent t4r u$4 letter" te"ta9entar. t4e e"tate6 #artiti n f t4e re"i!ual e"tate will be 9a!e. G 1f the decedent left no will and no debts and the heirs are all of age+ or the minors are represented by their %udicial or legal representatives duly authori#ed for the purpose+ the parties may+ without securing letters of administration+ divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds+ and should they disagree+ they may do so in an ordinary action of partition. but no e4tra%udicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. his is to be differentiated from the different modes for the settlement of the estate of the deceased E4tra%udicial settlement of estate (Rule 6=.
! compromise agreement entered into by and between the various heirs is binding upon them as individuals even without previous authority of the court. Sec. 1t is not conveyance of property. Eral partition is valid and binding. person and upon hearing+ which shall be held not less than (1) month nor more than three (. Gue/arra /". 7. here is no reDuirement for the validity of a partition among the heirs to be in writing. o have legal capacity to appear is not a good reason @ernan!e: /". 1t does not involve transfer of property from one to another+ but a confirmation or ratification of the title or right of property by the heir renouncing in favor of another heir accepting and receiving the inheritance. .. An!al. 1f it shall appear at any time within two (7) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule+ that an heir or other person has been unduly deprived of his lawful participation in the estate+ such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. !n e4tra%udicial partition of the estate submitted by the heirs after the court has acDuired %urisdiction become a %udicial partition after the approval by the court.) consecutive wee's in a newspaper of general circulation in the province+ and after such other notice to interested persons as the court may direct+ the court may proceed summarily+ without the appointment of an e4ecutor or administrator+ and without delay+ to grant+ if proper+ allowance of the will+ if any there be+ to determine who are the persons legally entitled to participate in the estate+ and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due. *either may they do away with the presentation of the will to the court for probate+ because such suppression of the will is contrary to law and public policy. and such persons+ in their own right+ if they are of lawful age and legal capacity+ or by their guardians or trustees legally appointed and Dualified+ if otherwise+ shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. G Ahenever the gross value of the estate of a deceased person+ whether he died testate or intestate+ does not e4ceed ten thousand pesos+ and that fact is made to appear to the $ourt of 3irst 1nstance having %urisdiction of the estate by the petition of an interested Sec. =. Gue/arra. Sec. >nder section 1 of Rule 6=+ in relation to Rule 6I+ if the decedent left a will and no debts and the heirs and legatees desire to ma'e an e4tra%udicial partition of the estate+ they must first present that will to the court for probate and divide the estate in accordance with the will.s office. he court+ before allowing a partition in accordance with the provisions of the preceding section+ may reDuire the distributes+ if property other than real is to be distributed+ to file a bond in an amount to be fi4ed by the court+ conditioned for the payment of any %ust claim which may be filed under the ne4t section. 0ond to be filed by distributes. he court shall ma'e such order as may be %ust respecting the costs of the proceedings+ and all orders and %udgments made or rendered in the course thereof shall be recorded in the office of the cler'+ and the order of partition or award+ if it involves real estate+ shall be recorded in the proper register. Summary settlement of estates of small value. he reDuirement that partition should be reduced in a public document and registered is for the protection of the creditors and the protection of the heirs against tardy claims 2artition is not covered by the statute of frauds (no reDuirement under substantive law to be in writing). 1f the court already had %urisdiction over the settlement of the estate of the deceased+ the heirs cannot divest the court of its acDuired %urisdiction by dividing and distributing the estate e4tra%udicially among themselves. !nd if within the same time of two (7) years+ it shall appear that there are debts outstanding against the estate which UP LAW BAROPS 2007 5 of 95 ONE UP LAW . hey may not disregard the provisions of the will unless those provisions are contrary to law.) months from the date of the last publication of a notice which shall be published once a wee' for three (. Kiability of distributees and estate. he 5 $ has %urisdiction over summary settlement of estates of small value. 5ultiplicity of suits is not a good reason. )ispute among the heirs is not a good reason.
Gue/arra. Should a person ma'e partition of his estate by an act inter vivos+ or by will+ such partition shall be respected+ insofar as it does not pre%udice the legitime of the compulsory heirs. and b. E.e. Sa9#il /". Even if the decedent left no debts and nobody raises any Duestion as to the authenticity and due e4ecution of the will+ none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court+ first+ because the law e4pressly provides that Mno will shall pass either real or personal estate unless it is proved and allowed in the proper courtM. li9ite! t !eter9ine e. 2eriod to file a claim against the bond: Erdinary: "eirLother person has been unduly deprived of his lawful participation in the estate 7 years from the settlement and distribution Gue/arra /". $!+ formerly !rt 1<JI) C urt aut4 rit. 'u!icial Settle9ent Te"tate Pr cee!in$" Rule 73C Pr !ucti n N te" an! Ca"e"Pr bate f Eill Man!at r.have not been paid+ or that an heir or other person has been unduly deprived of his lawful participation payable in money+ the court having %urisdiction of the estate may+ by order for that purpose+ after hearing+ settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof+ and may issue e4ecution+ if circumstances reDuire+ against the bond provided in the preceding section or against the real estate belonging to the deceased+ or both. 1<?< $ivil $ode.trin"ic /ali!it. N te" an! Ca"e"Rule n li9itati n" n t a##licable t An wle!$e f "ettle9ent t4 "e w4 4a! n 3raud )ebts of the estate have remained unpaid = years from the discovery of fraud )iscovery is presumed from the time the deed is registered $laims of 5inors and other incapacitated persons =. P4il 7>2. (cited by the $ourt in 5ang-Ey vs. f E"tate" 1 year from removal of disability f Eill All wance f Eill Nece""ar. !ll the persons or heirs of the decedent have ta'en part in the e4tra%udicial settlement or are represented by themselves or through their guardians.s right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will. Such bond and such real estate shall remain charged with a liability to creditors+ heirs+ or other persons for the full period of two (7) years after such distribution+ notwithstanding any transfers of real estate that may have been made. to persons who have participated or ta'en part or had notice of the e(trajudicial partition. he general rule is that the probate court@s authority is limited only to: a. hus+ sec = Rule 6= is only a bar against the parties who had ta'en part in the e4tra%udicial proceedings+ but *E against third persons not parties thereto. when the provisions of Sec 1 or Rule 6= have been strictly complied with+ i.ce#ti n !rt. he provisions of Sec = Rule 6=+ barring distributes or heirs from ob%ecting to an e4tra%udicial partition after the e4piration of 7 years from such e4tra%udicial partition+ is applicable only: a. that. the e4trinsic validity of the will UP LAW BAROPS 2007 6 of 95 ONE UP LAW . CA %>8. and+ second+ because the probate of a will+ which is a proceeding in rem+ cannot be dispensed with and substituted by any other proceeding+ %udicial or e4tra%udicial+ without offending against public policy designed to effectuate the testator.
CA. G ! person named as e4ecutor in a will shall+ within twenty (7<) days after he 'nows of the death of the testator+ or within twenty (7<) days after 'nows that he is named e4ecutor if he obtained such 'nowledge after the death of the testator+ present such will to the court having %urisdiction+ unless the will has reached the court in any other manner+ and shall+ within such period+ signify to the court in writing his acceptance of the trust or his refusal to accept it. 1t is a matter of public interest that a purported will is not denied legali#ation on dubious grounds. G ! person who neglects any of the duties reDuired in the two last UP LAW BAROPS 2007 7 of 95 ONE UP LAW . 3ailure to attach original of the will to the petition is not critical where the will itself was adduced in evidence. 5oreover+ for the parties in the *uguid case+ the Bmeat of the controversyC was the intrinsic validity of the will. IMPORTANT E4en t4e will i" intrin"icall. E4ecutor to present will and accept or refuse trust. f Pr bate i" c nclu"i/e a" t it" !ue e. Narci" . %t4e FPractical C n"i!erati n"G D ctrine %Acain /.. !well n t4e i""ue f intrin"ic /ali!it. Ahere circumstances demand that the intrinsic validity of testamentary provisions be passed upon before the e4trinsic validity of the will is resolved+ the probate court should meet the issue. the compliance with the reDuisites or solemnities prescribed by law E.2. )!a. =. CA %022. De Precilla /"... Le ni!e" %>21 SCRA . he intrinsic validity of the wills in those cases was passed upon even before probate because the practical considerations so demanded. $ustodian and e4ecutor sub%ect to fine for neglect. >nder e4ceptional circumstances+ the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will.ecuti n Mana4an /. Sala".Even assuming the e4istence of the remedy of appeal+ the $ourt hear'ens to the rule that in the broader interests of %ustice+ a petition for certiorari may be entertained+ particularly where appeal would not afford speedy and adeDuate relief. Ca. Sec. IAC2 Sub"tantial C 9#liance Sufficient Substantial compliance is acceptable where the purpose of the law has been satisfied+ the reason being that the solemnities surrounding the e4ecution of wills are intended to protect the testator from all 'inds of fraud and tric'ery but never intended to be so rigid and infle4ible as to destroy the testamentary privilege. Sec. N te" an! Ca"e"- @eir" f t4e late 'e"u" +ran /". the testator@s testamentary capacity d. f Certi rari a/ailable . G he person who has custody of a will shall+ within twenty (7<) days after he 'nows of the death of the testator+ deliver the will to the court having %urisdiction+ or to the e4ecutor named in the will.b. $ustodian of will to deliver. i" n t intrin"ic /ali!it.ce#ti n he rule+ however+ is not infle4ible and absolute. 0y virtue of the dismissal of the estate $ase+ the determination of that controversial issue has not been thoroughly considered. CA %022. 7. the due e4ecution thereof c. Princi#le n t a##lie! w4ere 9eat f c ntr /er". 1t is not necessary to attach original will to petition for probate. Maninan$ /".2* Ne# 9ucen /". Settled is the rule that the decree of probate is conclusive with respect to the due e4ecution of the will and it cannot be impugned on any of the grounds authori#ed by law+ e4cept that of fraud+ in any separate or independent action or proceeding Decree Sec. Di"9i""al i9#r #er w4ere i""ue" are c ntr /er"ial Maninan$ /". he *uguid and 0alanay cases provide the e4ception rather than the rule. . Mana4an %. Re9e!. / i! ON ITS +ACE6 t4en t4e #r bate c urt 9a.etan /".
the estate+ or b. he testator himself may+ during his lifetime+ petition the court for the allowance of his will. $ourt to appoint time for proving will. 0ut no defect in the petition shall render void the allowance of the will+ or the issuance of letters testamentary or of administration with the will anne4ed.1) Sec. G ! petition for the allowance of a will must show+ so far as 'nown to the petitioner: (a) he %urisdictional facts. G ! person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same+ when ordered so to do+ to the court having %urisdiction+ may be committed to prison and there 'ept until he delivers the will. 1n order that a person may be allowed to intervene in a probate proceeding+ he must have an interest in: a. Sec. G !ny e4ecutor+ devisee+ or legatee named in a will+ or any other person interested in the estate+ may+ at any time after the death of the testator+ petition the court having %urisdiction to have the will allowed+ whether the same be in his possession or not+ or is lost or destroyed. = rBa %552. C+I f La$una %. (d) he name of the person for whom letters are prayed. Rule 75 C All wance r Di"all wance f Eill R !ri$ue: /". 1t has been the practice in some courts to permit attachment of mere copy of the will to the application+ without pre%udice to producing the original thereof at the hearing or when the court so reDuires. e4ecutor+ or b. Ra9a$ "a %572. *otice thereof to be published G Ahen a will is delivered to+ or a petition for the allowance of a will is filed in+ the court having %urisdiction+ such court shall fi4 a time and place for proving the will when all concerned may appear to contest the allowance thereof+ and shall cause notice of such time and place to be published three (... )elivery of Aill sufficient even if no petition filed 0asa v. he %urisdictional facts in a probate proceeding are the 1) death of the decedent+ 7a)his residence at the time of death in the province where the court is sitting ER 7b) if he is an inhabitant of a foreign country+ his leaving an estate in the province (also in Rule 6. (c) he probable value and character of the property of the estate. in the property to be affected by it either as: a.J). UP LAW BAROPS 2007 8 of 95 ONE UP LAW . (b) he names+ ages+ and residences of the heirs+ legatees+ and devisees of the testator or decedent. J. a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate li'e a creditor. 7.) wee's successively+ previous to the time appointed+ in a newspaper of general circulation in the province. 1. he %urisdiction of the court becomes vested upon the delivery thereto of the will even if no petition for its allowance was filed later. Aho may petition for the allowance of will. $ontents of petition. Sala:ar /". in the will+ or c. N te" an! Ca"e"Meanin$ f Intere"t in E"tate Su9ilan$ /". 0ut no newspaper publication shall be made where the petition for probate has been filed by the testator himself.! newspaper is of general circulation where it is published for the dissemination of local news and general information and it is not devoted to the interest or publication for the entertainment of a particular class+ profession+ trade+ calling+ race+ or religious denomination and is published at regular intervals. (e) 1f the will has not been delivered to the court+ the name of the person having custody of it. Sec.preceding sections without e4cuse satisfactory to the court shall be fined not e4ceeding two thousand pesos. 2erson retaining will may be committed.72. 5ercado+ (. . 'uri"!icti n6 @ w ac7uire! !ttaching of mere copy of will sufficient Sec.
=. he court shall also cause copies of the notice of the time and place fi4ed for proving the will to be addressed to the designated or other 'nown heirs+ legatees+ and devisees of the testator resident in the 2hilippines at their places of residence+ and deposited in the post office with the postage thereon prepaid at least twenty (7<) days before the hearing+ if such places of residence be 'nown. Koss of the will should be proved before secondary evidence may be admitted. o preclude inference that testator destroyed his own will+ the second fact needs to be proved. 1f the testator as's for the allowance of his own will+ notice shall be sent only to his compulsory heirs. Celi". !ll such testimony shall be ta'en under oath and reduced to writing.. De Le n. Galing+ (??) 5ere publication of the notice of hearing is not enough to confer %urisdiction on the court. . 2roof of lost or destroyed will. consecutive wee's *otice to all devisees+ heirs+ legatees and e4ecutor either personally or by mail 2ostmortem 2robate *o publication necessary *otice to be sent in the same manner only to the compulsory heirs UP LAW BAROPS 2007 9 of 95 ONE UP LAW . Such notice is not necessary and publication is sufficient only when the addresses are not 'nown or the address given in the petition is wrong Sec. *o will shall be proved as a lost or destroyed will unless the e4ecution and validity of the same be established+ and the will is proved to have been in e4istence at the time of death of the testator+ or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his 'nowledge+ nor unless its provisions are clearly and distinctly proved by at least two (7) credible witnesses. publication is a prereDuisite which serves as constructive notice to the whole world. !side from publication+ notice of hearing is also reDuired to be given to the designated heirs+ legatees and devisees Pr f at @earin$ Sec. 1f no person appears to contest the allowance of the will+ the court may grant allowance thereof on the testimony of one of the subscribing witnesses only+ if such witness testify that the will was e4ecuted as is reDuired by law. "eirs+ devisees+ legatees+ and e4ecutors to be notified by mail or personally.Ahat sufficient in absence of contest. 1n the absence of any such competent witness+ and if the court deem it necessary+ e4pert testimony may be resorted to. I. hree facts to be proven in order that a lost or destroyed will be allowed: o Aill duly e4ecuted by testator o Aill in e4istence when the testator died+ or if not+ that it was accidentally or fraudulently destroyed in the lifetime of the testator without his 'nowledge o 2rovisions of will clearly established by at least two credible witnesses ArauB /. (udgment rendered therein is binding on everybody+ even against the state. 2ersonal service of copies of the notice at least ten (1<) days before the day of hearing shall be eDuivalent to mailing. Ahen a lost will is proved+ the provisions thereof must be distinctly stated and certified by the %udge+ under the seal of the court+ and the certificate must be filed and recorded as other wills are filed and recorded. 1n the case of a holographic will+ it shall be necessary that at least one witness who 'nows the handwriting and signature of the testator e4plicitly declare that the will and the signature are in the handwriting of the testator. Ahere the addresses of the heirs and legatees are 'nown+ personal and individual notice to them is mandatory. 3irst and third facts above are secondary evidence in lieu of original Li9 =illian /. . 2roof at hearing. Sec. )e !ran# v. !t the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction of testimony in support of the will. Dia: /. *otice !ntemortem 2robate 2ublication of date and place of hearing in a newspaper of general circulation once a wee' for . Sunta. he probate of a will is a proceeding in rem. also+ to any person named as co-e4ecutor not petitioning+ if their places of residence be 'nown.$ertificate thereupon. J. ! copy of the notice must in li'e manner be mailed to the person named as e4ecutor+ if he be not be petitioner.
1f any or all of them testify against the due e4ecution of the will+ or do not remember having attested to it+ or are otherwise of doubtful credibility+ the will may+ nevertheless+ be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was e4ecuted and attested in the manner reDuired by law. ?. 11. 17. 2roof when witnesses do not reside in province.Sec. estator may then present his evidence P "t M rte9 "olographic *o $ontest !t least one witness who 'nows the handwriting and signature of the testator+ or an e4pert witness !t least one subscribing witness testifies that will e4ecuted as reDuired by law Aith $ontest !t least . Mara/illa. deem it necessary+ e4pert testimony may be resorted to. 2roof when witnesses dead or insane or do not reside in the 2hilippines. n Pr ft be Pre"ente! Mara/illa /. 6. Sec. G Ahere the testator himself petitions for the probate of his holographic will and no contest in filed+ 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 e4ecution thereof. he testator may+ in his turn+ present such additional proof as may be necessary to rebut the evidence for the contestant. G 1f the will is contested+ all the subscribing witnesses+ and the notary in the case of wills e4ecuted under the $ivil $ode of the 2hilippines+ if present in the 2hilippines and not insane+ must be produced and e4amined+ and the death+ absence+ or insanity of any of them must be satisfactory shown to the court.) witnesses who 'now the handwriting of the testator e4plicitly declare that the will and the signature are in the handwriting of the testator. he failure of the witness to identify his own signature does not bar probate. and as evidence of the e4ecution of the will+ it may admit proof of the handwriting of the testator and of the subscribing witnesses+ or of any of them. witnesses who 'now the handwriting and signature of the testator+ or an e4pert witness !ll subscribing witnesses and the notary public shall testify that will was e4ecuted as reDuired by law *otarial UP LAW BAROPS 2007 10 of 95 ONE UP LAW . 1f a holographic will is contested+ the same shall be allowed if at least three (. in the absence of any competent witness+ and if the court AnteC9 rte9 @ l $ra#4ic Eill *o $ontest estator shall affirm the holographic will and the signature are his Aith $ontest 0urden of disproving genuineness and due e4ecution is on the contestant. Su99ar. Subscribing witnesses produced or accounted for where will contested. Sec. G 1f it appears at the time fi4ed for the hearing that the subscribing witnesses are dead or insane+ or that none of them resides in the 2hilippines+ the court may admit the testimony of other witnesses to prove the sanity of the testator+ and the due e4ecution of the will. 1f the holographic will is contested+ the burden of disproving the genuineness and due e4ecution thereof shall be on the contestant. 2roof where testator petitions for allowance of holographic will. 1f all or some of such witnesses are present in the 2hilippines but outside the province where the will has been filed+ their deposition must be ta'en. Sec. G 1f it appears at the time fi4ed for the hearing that none of the subscribing witnesses resides in the province+ but that the deposition of one or more of them can be ta'en elsewhere+ the court may+ on motion+ direct it to be ta'en+ and may authori#e a photographic copy of the will to be made and to be presented to the witness on his e4amination+ who may be as'ed the same Duestions with respect to it+ and to the handwriting of the testator and others+ as would be pertinent and competent if the original will were present.
Art. Grounds for disallowing will.. Sunta. 1<. $ontestant to file grounds of contest. !ttested copies of the will devising real estate and of certificate of allowance thereof+ shall be recorded in the register of deeds of the province in which the lands lie. $ertificate of allowance attached to proved will. 8. Such can even be in the main body. Evidence necessary for the reprobate or allowance of wills o )ue e4ecution of the will in accordance with the foreign laws o he testator has his domicile in the foreign country and not in the 2hilippines o he will has been admitted to probate in such country UP LAW BAROPS 2007 11 of 95 ONE UP LAW . 0>56 CC. 1f the court is satisfied+ upon proof ta'en and filed+ that the will was duly e4ecuted+ and that the testator at the time of its e4ecution was of sound and disposing mind+ and not acting under duress+ menace+ and undue influence+ or fraud+ a certificate of its allowance+ signed by the %udge+ and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the cler'. Sec. R(LE 77 C ALLOEANCE O+ EILL PRO)ED O(TSIDE O+ P@ILIPPINES AND ADMINISTRATION O+ ESTATE T@ERE(NDER Sec. %3?2. Sec. (b) 1f the testator was insane+ or otherwise mentally incapable to ma'e a will+ at the time of its e4ecution. 2rovisions clearly and distinctly proven by at least 7 credible witnesses *ot Residents of the 2rovince where 2robate $ourt Sits a'e deposition of witnesses and allow them to e4amine a photographic copy of the will Aitnesses are )ead+ 1nsane or *on Residents of the 2hilippines $ourt may admit testimony of other witnesses to prove sanity of the testator and due e4ecution of the will he grounds for disallowance are e4clusive. G Aills proved and allowed in a foreign country+ according to the laws of such country+ may be allowed+ filed+ and recorded by the proper $ourt of 3irst 1nstance in the 2hilippines. (c) 1f it was e4ecuted under duress+ or the influence of fear+ or threats. G !nyone appearing to contest the will must state in writing his grounds for opposing its allowance+ and serve a copy thereof on the petitioner and other parties interested in the estate. 1. Aills of aliens can be probated in the 2hilippines if it followed the formalities prescribed o 0y the laws of the place where he resides (le4 domicilii) o 0y the laws of his country (le4 nationalii) o 0y the laws of the 2hilippines Sunta. 1f the will is e4ecuted in substantial compliance with the formalities of the law+ and the possibility of bad faith and fraud is obviated+ the will should be allowed probate. 1ts basis is !rticle ?. 1. Sec. (e) 1f the signature of the testator was procured by fraud or tric'+ and he did not intend that the instrument should be his will at the time of fi4ing his signature thereto. Aill was in e4istence at the time of death of the testator+ or 3raudulently or accidentally destroyed during his lifetime of the testator without his 'nowledge+ and 7. (d) 1f it was procured by undue and improper pressure and influence+ on the part of the beneficiary+ or of some other person for his benefit. .8+ *$$ )!a. Separate wills may be probated %ointly especially where the two wills contain essentially the same provisions and pertain to property which in all probability are con%ugal in nature. T lete %1?2.L "t Eill" Pr /e 1. De Pere: /". /". 3or holographic wills+ it is sufficient that they are truly dated+ although the date is not in its usual place.o be recorded in the Effice of Register of )eeds. G he will shall be disallowed in any of the following cases: (a) 1f not e4ecuted and attested as reDuired by law. Aill proved outside 2hilippines may be allowed here.
Estate+ how administered.e" /. !ncillary administration G any other administration. !n administrator should be able to devote his time and mind to the burden of his trust. G 1f it appears at the hearing that the will should be allowed in the 2hilippines+ the court shall so allow it+ and a certificate of its allowance+ signed by the %udge+ and attested by the seal of the court+ to which shall be attached a copy of the will+ shall be filed and recorded by the cler'+ and the will shall have the same effect as if originally proved and allowed in such court. as administrator should not be in one place while the estate administered is in another place for he cannot then efficiently discharge his duties as administrator. (b) 1s not a resident of the 2hilippines. =. Ara:an" . !dministration of an estate e4tends only to the assets of the decedent found within the state or country where it was granted he administrator appointed in one state has no power over property in another state or country. hey are limited to the causes enumerated and have no authority to issue letters to a person because his interests are hostile to those of the estate and the legatees under the will. Le n H G4e::i /. he court cannot add new causes for disDualification. he administrator does not have to be an heir. *on-residents . and the residue+ if any+ shall be disposed of as is provided by law in cases of estates in the 2hilippines belonging to persons who are inhabitants of another state or country. *otice of hearing for allowance. Who are incompetent to serve as e(ecutors or administrators. he will probated abroad should be treated as if it were an original will that is presented for probate for the first time. . debts and e4penses of administration+ shall be disposed of according to such will+ so far as such will may operate upon it.o he foreign tribunal is a probate court o he laws of a foreign country on procedure and allowance of wills Sec. Manufacturer<" Life In"urance. )run'enness • Something more gross than occasional into4ication must appear to preclude the appointment of the person entitled • 1t is only when their habits of drin' are carried so far as to cloud he brain and wea'en their respect for honesty UP LAW BAROPS 2007 12 of 95 ONE UP LAW . "e may be a stranger to the estate Ta9buntin$ !e Ten$c /. Ahen will allowed+ and effect thereof. Ta9buntin$.. G Ahen a will is thus allowed+ the court shall grant letters testamentary+ or letters of administration with the will anne4ed+ and such letters testamentary or of administration+ shall e4tend to all the estate of the testator in the 2hilippines. Such estate+ after the payment of %ust Re. and (c) 1s in the opinion of the court unfit to e4ecute the duties of the trust by reason of drun'enness+ improvidence+ or want of understanding or integrity+ or by reason of conviction of an offense involving moral turpitude. *o person is competent to serve as administrator who (a) 1s a minor. proper whenever a person dies leaving in a country other than that of his domicile+ property to be administered in the nature of assets of the decedent+ liable for his individual debts or to be distributed among the heirs Sec. Ne$ati/e +act r" 1. 2rincipal administration G administration granted at the decedent@s domicile. 5inors 7.. an! f A!9ini"trati n6 E4en an! t E4 9 I""ue! Section 1.ecut r" Rule 70 Letter" Te"ta9entar. G Ahen a copy of such will and of the order or decree of the allowance thereof+ both duly authenticated+ are filed with a petition for allowance in the 2hilippines+ by the e4ecutor or other person interested+ in the court having %urisdiction+ such court shall fi4 a time and place for the hearing+ and cause notice thereof to be given as in case of an original will presented for allowance. =. 7. hus+ publication and notice to interested persons are necessary Sec. A!9ini"trat r" an! E.
Aant of 1ntegrity Inte$rit.I provides an order of preference in the appointment of an administrator.estamentar* issued %hen %ill allo%ed. Definiti n. +l re" %712. J. E4ecutor of E4ecutor not to administer estate. +etters . Ahen a will was been proved and allowed+ the court shall issue letters (b) 1f such surviving husband and wife+ as the case may be+ or ne4t of 'in+ or to the person selected by them to be incompetent or unwilling+ or if the husband or widow+ ne4t of 'in+ neglects+ for . he e4ecutor of an e4ecutor shall not+ as such+ administer the estate of the first testator. (c) 1f there is no such creditor competent and willing to serve+ if may be granted to such other person as the court may select. A$uinal! %182. When and to %hom letters of administration granted.=. )arried Women ma* serve.. Ahen all of the e4ecutors named in a will cannot act because of o incompetency+ o refusal to accept the trust+ or o failure to give a bond+ on the part of one or more of them+ letters testamentary may issue to such of them as are competent+ accept and give bond+ and they may perform the duties and discharge the trust as reDuired by the will. I.soundness of moral privilege and character+ shown by a person@s dealing with others+ in ma'ing and performance of contracts+ in fidelity and honesty in the discharge of trust 5oral urpitude testamentary thereon to the person named as e4ecutor therein+ if o he is competent+ o accepts the trust+ and o gives bond as reDuired by the rules Section J. Section =. • Ahat is contemplated by this article is drun'enness that is e4cessive+ inveterate and continued use of into4icants+ to such an e4tent as to render the sub%ect of the habit as unsafe against to entrust with the care of property or the transaction of business. Section 7. • Iari /. • Symptoms: carelessness+ indifference+ prodigality+ wastefulness or negligence in reference to the care+ management and preservation of property Aant of >nderstanding • 1t must amount to lac' of intelligence. ! married woman may serve as e4ecutri4 or administratri4+ and the marriage of a single woman shall not affect her authority so to serve under a previous appointment.< days after the death of the person to apply for administration or to reDuest that administration be granted to some other person+ it may be granted to one or more of the principal creditors if competent and willing to serve. G n:ale" /. 1f no e4ecutor is named in the will+ or the e4ecutor or e4ecutors are incompetent+ refuse the trust+ or fail to give bond+ or a person dies intestate+ administration shall be granted: (a) o the surviving husband or wife+ as the case may be+ or ne4t of 'in+ or both+ in the discretion of the court+ or to such person as such surviving husband or wife+ or ne4t of 'in+ reDuests to have appointed+ if competent or willing to serve • 6.an act of baseness+ vileness or depravity in the private and social duties which a man owes others and society+ contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to %ustice+ honesty+ modesty or good morals.. Section I. Section . Where some co-e(ecutors dis.ualified others ma* act. Rule 6?. he underlying assumption is that those who will reap the benefit of a wise+ speedy and economical administration of the estate or who will suffer the UP LAW BAROPS 2007 13 of 95 ONE UP LAW . and integrity that the courts ta'e cogni#ance of their use of liDuor. 1mprovidence • )efinition: want of care+ business capacity+ or foresight in the management of property which would be li'ely to render the estate and effects of interstate unsafe+ and liable to be lost or diminished in value.
Matute /. Simultaneous petition for administration. Section 7. (d) the name of the person for whom letters of administration are prayed. Enly an heir or creditor can oppose the issuance of letters of administration as they are the only ones who would be benefited by the estate. !rt. t /". CA. ! petition may+ at the same time+ be filed for letters of administration with the will anne4ed. !dministration may be granted to such other person as the court may appoint in case the persons who have the preferential right to be appointed are not incompetent or are unwilling to serve Arit of 5andamus will issue only to direct the court to appoint an administrator+ but not to direct the court who to appoint. UP LAW BAROPS 2007 14 of 95 ONE UP LAW . • Rule 71 O## "in$ I""uance f Letter" Te"ta9entar. De C4ua /. e4ecutors+ or any of them+ and the court+ after hearing upon notice+ shall pass upon the sufficiency of such grounds. Kindayag). he appointment of a co-administrator is legally permissible and sanctioned in practice. Cri" "t 9 6 %3>2. (c) the probable value and character of the property of the estate. B*e4t of 'inC G persons who are entitled under the statute of distribution to the decedent@s property. 0ut no defect in the petition shall render void the issuance of letters of administration 'uri"!icti nal +act".6 Petiti n an! C nte"t f r Letter" f A!9ini"trati n Section 1. De Manal /". !ny person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as Trillana /. )!a.=).death of the decedent and of his residence within the country are foundation facts upon which all the subseDuent proceedings in the administration of the estate rest. he petition for letters of administration is not adversarial./pposition to issuance of letters testamentar*.conseDuences of waste+ improvidence or mismanagement+ have the highest interest and most influential motive to administer the estate correctly. 1nterested person G one who would be benefited by the estate (heir)+ or one who has a claim against the estate (creditor)+ this interest must be material and direct+ not merely indirect or contingent. )!a. Contents of petition for letters of administration ! petition for letters of administration must be filed by an interested person and must show+ so far is 'nown to the petitioner: (a) the %urisdictional facts. !dministration e4tends only to the assets of a decedent found within the state or country where it was granted (Rule 6?. CA6 %102. 1nterest is not a %urisdictional fact+ but a motion to dismiss (5 )) may be granted on the basis that a person filing a petition without any interest in the administration of the estate of the deceased lac's legal capacity (see Rule 1I+ Saguinsin v. (b) the names+ ages+ and residences of the heirs+ and the names and residences of the creditors+ of the decedent. 777 of the $ivil $ode reDuiring a compromise between family members applies only to civil actions which are essentially adversarial and involve members of the same family.< day period may be waived under the permissive tone of paragraph (b) he creditor may file within a reasonable time after the death of the decedent in the estate proceedings+ and if none were had+ to petition for letters of administration. Pan . ! hearing has to be conducted to ascertain his fitness to act as e4ecutor. • "owever+ the preference is not absolute. Even the directive of the testator in his will designating that a certain person should act as e4ecutor is not binding on the probate court and does not automatically entitle him to the issuance of letters testamentary. ! hearing is necessary to determine the suitability of a person to be appointed administrator by giving him the opportunity to prove his Dualifications and to afford oppositors to contest the petition. 1t may be disregarded if such action will be for the benefit of the estate he . CA %512. =alu.
. and = of Rule 6I.ualified applicant. Rule 08 & S#ecial A!9ini"trat r Section 1. Appointment of special administrator Ahen there is a delay in granting letters testamentary or of • • Section =. /pposition to petition for administration. • 0ut the %urisdiction of the court over the proceedings for the administration of the estate must be distinguished from the %urisdiction over the persons interested in the settlement of the estate. Ahen a petition for letters of administration is filed in the court having %urisdiction+ such court • shall fi4 a time and place for hearing the petition+ and • shall cause notice thereof to be given o to the 'nown heirs and creditors of the decedent+ and o to any other persons believed to have an interest in the estate+ o in the manner provided in Sections . he latter is acDuired after proper notice to interested persons. When letters of administration granted to an* . !t the hearing of the petition+ • it must first be shown that notice has been given as hereinabove reDuired+ and UP LAW BAROPS 2007 15 of 95 ONE UP LAW . Section J. he appointment of co-administrators has been upheld for various reasons: o have the benefit of their %udgment and perhaps at all time to have different interests represented. Hearing and order for letters to issue. Section I. Ahere %ustice and eDuity demand that opposing parties or factions be represented in the management of the estate of the deceased. $o-administration however should be resorted to in e4ceptional cases only because it may lead to conflict between or among the co-administrators and diffusion of responsibility. Notice thereof. his reDuirement is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law. Ahere the estate is large+ or from any cause+ an intricate one to settle. Manal /". )al9 re". !ny interested person may+ by filing a written opposition+ • contest the petition on the ground of o the incompetency of the person for whom letters are prayed therein+ or o on the ground of the contestant@s own right to the administration+ and • may pray that letters issue o to himself+ or o to any competent person or persons named therein. Ketters of administration may be granted to any Dualified applicant+ though it appears that there are other competent persons having better right to the administration+ if such persons fail to appear when notified and claim the issuance of letters themselves. o have all interested parties satisfied and the representatives to wor' in harmony for the best interests of the estate. Court to set time for hearing. Pare!e". 5ore *otes on $o-!dministrators: wo or more administrators may be appointed for an estate+ especially when it is large and its administration comple4. has been given to persons believed to have an interest in the estate of the deceased person+ the proceeding for the settlement of the estate is void and should be annulled. Ahere no notice as reDuired by Rule 68. *otice is to bring all interested persons within the court@s %urisdiction so that the %udgment therein becomes binding on all the world Eu"ebi /. and Ahen a person entitled to the administration of the estate desires to have another competent person associated with him in the office. • thereafter the court shall hear the proofs of the parties in support of their respective allegations+ and • if satisfied o that the decedent left no will+ or o that there is no competent and willing e4ecutor+ it shall order the issuance of letters of administration to the party best entitled thereto..Section .
I refers to the appointment of a regular administrator+ and that the order appointing the latter lies within the discretion of the probate court and is not appealable. 2rincipal ob%ect of appointment of temporary administrator is to preserve the estate until it can pass into hands of persons fully authori#ed to administer it for the benefit of the creditors and the heirs. *otice through publication of the petition is a %urisdictional reDuirement even in the appointment of a special administrator. he appointment of a special administrator is temporary and subsists only until a regular administrator is appointed. An$ele". he e4ecutri4@s choice of Special !dministrator+ considering her own inability to serve and the wide latitude of discretion given her by the testratri4 in her will+ is entitled to the highest consideration. be a## inte! • he appointment of a special administrator is %ustified when there is a delay in granting letters testamentary or of administration because of o !n appeal from the allowance or disallowance of a will+ or o Some other cause (ground is broad enough to include: ) $ontest as to the will is being carried on in the same or in another court+ or Ahere there is a pending appeal as to the proceeding on the removal of an e4ecutor or administrator+ or 1n cases where the parties cannot agree among themselves • Section 7. he appointing court does not determine who are entitled to share in the estate of the decedent+ but who is entitled to the administration. E4 • Garcia +ule /". 0o%ers and duties of a special administrator. • • S#ecial A!9ini"trat r & a representative of the decedent appointed by the probate court to care for and preserve his estate until an e4ecutor or general administrator is appointed he paramount consideration is always the best interest of the estate Re. Santia$ %?12. *othing is wrong for the %udge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator.n " /. Since the wife owns N of the con%ugal properties+ and she+ too+ is a compulsory heir of her husband+ to deprive her of any hand in the administration of the estate prior to the probate of the will would be unfair to her proprietary interests. Garcia +ule /. CA. he preference under Rule 6?. here are important duties devolving on a regular administrator which a special administrator cannot perform+ and there are many actions to be ta'en by the court which could not be accomplished before a regular administrator is appointed. C r na /. De Gurrea %552. "e may sell only such perishable and other property as the court UP LAW BAROPS 2007 16 of 95 ONE UP LAW . !fter all+ the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent. he discretion to appoint a special administrator or not lies in the probate court.administration by any cause including an appeal from the allowance or disallowance of a will+ the court may appoint a special administrator to ta'e possession and charge of the estate of the deceased until the Duestion causing the delay are decided and e4ecutors or administrators are appointed. De Gu:9an /. Such special administrator shall ta'e possession and charge of the goods+ chattels+ rights+ credits+ and estate of the deceased and preserve the same for the e4ecutor or administrator afterwards appointed+ and for that purpose may commence and maintain suits as administrator. • • E4en a S#ecial A!9ini"trat r 9a. • • Sub%ect to the limitation above+ the appointment of a special administrator lies within the discretion of the court. CA. i" t be a## inte! • • • PiBuan /. he appointment of a regular administrator is necessary for the prompt settlement and distribution of the estate. CA. he issue of heirship is determined in the decree of distribution+ and the findings of the court on the relationship of the parties in the administration+ as to be the basis of distribution. *o temporary administration can be granted where there is an e4ecutor capable of acting.
?) o perform all r!er" f t4e c urt by him to be performed. /. Ta!. he court ma'ing the appointment retains control to modify+ rescind+ or revo'e the same on sufficient grounds before final %udgment. +l re". ! special administrator shall not be liable to pay the debts of the deceased unless so ordered by the court.ecut r" an! A!9ini"trat r" Lu: n Suret. Ahen letters testamentary or of administration are granted to the estate of the deceased+ the powers of the special administrator shall cease+ and he shall forthwith deliver to the e4ecutor or administrator the goods+ chattels+ money and estate of the deceased in his hands. *o appeal lies from the appointment of a special administrator. When further bond is re. an! !i"c4ar$e all !ebt"6 le$acie"6 an! c4ar$e" on the same+ or such dividends thereon as shall be decreed by the court. (d) • • Garcia /. o render a true and %ust acc unt of his administration to the court within 1 year+ and at any other time when reDuired by the court. 1ond given before issuance of letters. Juebrar.ransfer of effects. Rule >816 E"ler /. • !lthough no period is fi4ed for the administrator to submit an inventory of the estate+ it must be done within a reasonable time+ if not as soon as practicable+ to protect the estate and to protect the heirs of the deceased (infer from rule ?<. months+ a true and complete in/ent r. 1ond of a special administrator. !n order appointing a special administrator is interlocutory in nature+ a mere incident to the proceedings. When the po%ers of special administrator cease. 0ending suits. Section =. he e4ecutor or administrator may prosecute final %udgment suits commenced by such special administrator. (b) o a!9ini"ter according to these rules+ and+ if an e4ecutor+ according to the will of the testator+ all goods+ chattels+ rights+ credits+ and estate which shall come to his possession or 'nowledge or to the possession of any other person for him and fr 9 t4e #r cee!" t #a. Rule 0> & = n!" f E. • Section 1. 1ond of e(ecutor %here directed in %ill.1) UP LAW BAROPS 2007 17 of 95 ONE UP LAW . of all the goods+ chattels+ rights+ credits+ and estate of the deceased which shall come to his possession or 'nowledge or to the possession of any other person for him. 1onds of joint e(ecutors and administrators. 0efore an e4ecutor or administrator enters upon the e4ecution of his trust+ and letters testamentary or of administration issue+ he shall give a bond+ in such sum as the courts directs+ conditioned as follows: Section 7. ! special administrator before entering upon the duties of his trust shall give a bond+ in such sum as the court directs+ conditioned that he will ma'e and return a true inventory of the goods+ chattels+ rights+ credits+ and estate which shall come to his possession or 'nowledge+ and that he will truly account for such as are received by him when reDuired by (a) o ma'e and return to the court+ within . (see Rule ?. but the court may reDuire of the e4ecutor a further bond in case of a change in his circumstances+ or for other sufficient cause+ with the condition named in the preceding section. !nd for long as the administrator hold his position+ the surety@s liability subsists.. (see Rule ?J.orders sold. !s long as the probate court retains %urisdiction of the estate+ the bond contemplates a continuing liability. . he terms and effectivity of the bond does not depend on the payment of the premium and does not e4pire until the administration is closed. 1f the testator in his will directs that the e4ecutor serve without a bond+ or with only his individual bond+ he may be allowed by the court to give bond in such some and with such surety as the court approves conditioned only to pay the debts of the testator. Conditions.7).. (c) Section ... Section . Amount. Ahen two or more persons are appointed administrators or e4ecutors the court may ta'e separate bonds from each or a %oint bond from all. ! contrary rule would open the door to irregularities and mischief which may redound to the detriment of the estate and of the heirs entitled to distribution.uired.
G 1f after letters of administration have been granted on the estate of a decedent as if he had died intestate+ his will is proved and allowed by the court+ the letters of administration shall be revo'ed and all powers thereunder cease+ and the administrator shall forthwith surrender the letters to the court+ and render his account within such time as the court directs. he mere discovery of a document purporting to be a will after the appointment of an administrator does not ipso facto nullify the letters of administration or even authori#e their revocation until the will has been proved and allowed.7+ when there is a change in circumstances of the e4ecutorLadministrator or for other sufficient cause o Rule ?8. liDuidation of the estate. o 1f the testator provides that the e4ecutor shall serve without a bond+ the e4ecutor will still give a bond+ but the only condition which attaches to the bond is the payment of the debts of the testator. !dministration revo'ed if will discovered. Ahether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be discontinued and a new proceeding under a separate number is entirely a matter of form and lies within the sound discretion of the court. Santia$ . Sec. b. render a final account. Rule n Prece!ence f Pr bate f Eill 1f intestate proceedings had already been instituted+ the administrator must: a. Gr un!" f r Re9 /al *eglects to render an account and settle the estate according to law. *eglects to perform a duty e4pressly provided by these rules.n " /. 1f there is no remaining e4ecutor or administrator+ administration may be granted to any suitable person.6c+ an additional bond may be reDuired by the court in case of sale+ mortgage or encumbrance of the property of the estate conditioned that the administratorLe4ecutor account for the proceeds of the sale or encumbrance R(LE 02. A!/incula / Te ! r . *eglects to perform an order or %udgment of the court. Ahen an e4ecutor or administrator dies+ resigns+ or is removed the remaining e4ecutor or administrator may administer the trust alone+ unless the court grants letters to someone to act with him. $ourt may remove or accept resignation of e4ecutor or administrator. 2roceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided. Pur# "e f A!9ini"trati n 2urpose O a. 2roceedings thereupon. RE)OCATION O+ ADMINISTRATION6 DEAT@6 RESIGNATION6 AND REMO)AL O+ EKEC(TORS AND ADMINISTRATORS Sec. . 2roceedings upon death+ resignation+ or removal. distribution of the residue among the heirs and legatees KiDuidation O determination of all the assets of the estate and payment of all debts and e4penses (riarte / C+I. Lu: n Suret. 1. !bsconds+ or becomes insane+ or otherwise incapable or unsuitable to discharge the trust. b.the court+ and will deliver the same to the person appointed e4ecutor or administrator+ or such other person as may be authori#ed to receive them. 7. !dditional bond may be reDuired in the following cases o Rule ?1. / Juebrar. turn over the estate to the e4ecutor named in the will C n/er"i n f an Inte"tate int Te"tate Pr cee!in$ Re. his is without pre%udice to the proceedings continuing as intestacy. !pproval of the pro%ect of partition does not necessarily terminate administration UP LAW BAROPS 2007 18 of 95 ONE UP LAW . ! bond is necessary before an e4ecutor or administrator enters his trust. G 1f an e4ecutor or administrator neglects to render his account and settle the estate according to law+ or to perform an order or %udgment of the court+ or a duty e4pressly provided by these rules+ or absconds+ or becomes insane+ or otherwise incapable or unsuitable to discharge the trust+ the court may remove him+ or+ in its discretion+ may permit him to resign.
= rr 9e / = rr 9e %332. Sebial /. T4ere 9u"t be E/i!ence t 'u"tif. he acts of an administrator done in good faith prior to the revocation of the letters will be protected+ and similar protection will be e4tended to rights acDuired under a previous grant of administration. Sebial. ! mere importunity by some of the heirs+ there being no factual and substantial bases therefore+ is not adeDuate ratiocination for the removal of private respondent. Re9 /al R(LE 0. IN)ENTORY AND APPRAISAL* PRO)ISION +OR S(PPORT O+ +AMILY Sec. !e =acalin$ / La$u!a %7.Te9# rar. b. . 2owers of new e4ecutor or administrator.2. C barrubia" / Di: n. see that the inventory submitted by the administrator contains all the properties+ rights and credits which the law reDuires the adm@r to set out UP LAW BAROPS 2007 19 of 95 ONE UP LAW . he person to whom letters testamentary or of administration are granted after the revocation of former letters+ or the death+ resignation+ or removal of a former e4ecutor or administrator+ shall have the li'e powers to collect and settle the estate not administered that the former e4ecutor or administrator had+ and may prosecute or defend actions commenced by or against the former e4ecutor or administrator+ and have e4ecution on %udgments recovered in the name of such former e4ecution or administrator. Ab"ence n t a $r un! f r Re9 /al In re McKnight’s Will. !cts before revocation+ resignation+ or removal to be valid. Di"creti n in t4e Re9 /al f A!9ini"trat r De$ala / Ceni:a an! (9#i$* Men!i la / CA. =. ! temporary residence outside if the state+ maintained for the benefit of the health of the e4ecutor@s family+ is not such a removal from the state as to necessitate his removal as e4ecutor. )!a. Suffice it to say that the removal of an administrator does not lie on the whims+ caprices and dictates of the heirs or beneficiaries of the estate. Ahere the appointment of an administrator was procured through false representations+ the power of the probate court to revo'e the appointment is beyond Duestion. 1. he fact that an inventory was filed after the three-month period would not deprive the court of %urisdiction to approve it but may be grounds for the removal of the administrator. his is so because the position of administrator is one of confidence. 2owers of the probate court: a. G Ahen three (. Gr un!" Enu9erate! n t E. emporary absence from the state on account of ill health+ or on account of business+ or for the purpose of travel or pleasure+ would not necessarily establish the fact that an e4ecutor has removed from the state+ within the intent of the statute.) months after his appointment every e4ecutor or administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or 'nowledge. he removal of an administrator under Section 7 of Rule ?7 lies within the discretion of the court appointing him. Gabriel / CA %122.clu"i/e Sec. !n authority granted by the court to the former e4ecutor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing. supervision and control over the powers of the deceased.Renewal of license to sell real estate. )etermination of what properties+ rights and credits of the deceased should e included in the inventory 1nherent duties of the probate court: a. 1nventory and appraisal to be returned within three months. he order of removal is appealable. he lawful acts an e4ecutor or administrator before the revocation of his letters testamentary or of administration+ or before his resignation or removal+ shall have the li'e validity as if there had been no such revocation+ resignation+ or removal. 1n the appraisement of such estate+ the court may order one or more of the inheritance ta4 appraisers to give his or their assistance. Sec.. he three-month period is not mandatory. .
E4ecutor or administrator to retain whole estate to pay debts+ and to administer estate not willed. G !n e4ecutor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the e4penses of administration. E4ecutor or administrator to 'eep buildings in repair. G E4cept as otherwise e4pressly provided in the following sections+ every e4ecutor or administrator is chargeable in his account with the whole of the estate of the deceased which has come into his possession+ at the value of the appraisement contained in the inventory. G he widow and minor or incapacitated children of a deceased person+ during the settlement of the estate+ shall receive therefrom+ under the direction of the court+ such allowance as are provided by law. "ow right enforced.. Sec. E"tate f Rui: %152. R(LE 0? GENERAL POEERS AND D(TIES O+ EKEC(TORS AND ADMINISTRATORS Sec. !llowance for support is not limited to the minor or incapacitated children of the deceased. boo's+ papers+ and property in their hands or control. E"tate f Ola/e /. and the surviving partner or partners+ on reDuest+ shall e4hibit to him all such Car /. .. CA. En the written application of such e4ecutor or administrator+ the court having %urisdiction of the estate may order any such surviving partner or partners to freely permit the e4ercise of the rights+ and to e4hibit the boo's+ papers+ and property+ as in this section provided+ and may punish any partner failing to do so for contempt. !n !dministrator cannot e4ercise the right of legal redemption as this is not one of the powers of administration. $ertain articles not to be inventoried. Rule 03 Acc unt Liabilit. E4ecutor or administrator chargeable with all estate and income. 3$ (1?? $$) during the liDuidation of the con%ugal partnership+ the deceased@s legitimate spouse and children+ regardless of age+ civil status or gainful employment+ are entitled to provisional support from the estate. !llowance to widow and family.e" %0. should an heir or interested person call the court@s attention to the fact that certain properties+ rights+ etc. Re. G !n e4ecutor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate+ and deliver the same in such repair to the heirs or devisees when directed so to do by the court. Sec.. 1. 7. Sec.2. with all the UP LAW BAROPS 2007 20 of 95 ONE UP LAW . 1. >nder !rt 1. 7. have been left out of the inventory+ the court must hear the observations Sec. he right of the adm@r to the possession and management of the properties of the deceased is not absolute. G he e4ecutor or administrator of the estate of a deceased partner shall at all times have access to+ and may e4amine and ta'e copies of+ boo's and papers relating to the partnership business+ and may e4amine and ma'e invoices of the property belonging to such partnership. =ac4rac4 / Seifert %?12: he sale of the estate is unnecessary when the cash in the possession of the administratri4 is sufficient for the monthly allowance of the latter+ and the lower court may not order said sale especially when the heirs are opposed to it. . an! C 9#en"ati n A!9ini"trat r" f E.ecut r" an! Sec. he allowance does not e4tend to grandchildren. it can only be e4ercised so long as it is necessary for the payment of debts and e4penses of administration.b. E4ecutor or administrator to have access to partnership boo's and property. Ahere the estate is already the sub%ect of testateLintestate proceedings+ the adm@r cannot enter into any transaction without prior court approval. G he wearing apparel of the surviving husband or wife and minor children+ the marriage bed and bedding+ and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased+ under the direction of the court+ shall not be considered as assets+ nor administered as such+ and shall not be included in the inventory. his is because the right and duty to support subsist beyond the age of ma%ority.
and if the parties do not agree upon the sum to be allowed+ the same may be ascertained by the court+ whose determination in this respect shall be final.interest+ profit+ and income of such estate. 1f he settles any claim against the estate for less than its nominal value+ he is entitled to charge in his account only the amount he actually paid on the settlement. Responsibility for damages cannot be shifted to the intestate estate. shall be deemed waste and the damage sustained may be charged and allowed against him in his account+ and he shall be liable therefor on his bond. Sec. Sec. *ot to profit by increase or lose by decrease in value. Picar!al / Lla!a" %572. 1f the e4ecutor or administrator uses any part of the real estate+ he shall account for it: (a) as agreed between him and interested parties+ (b) as ad%usted by court with their assent+ and (c) if the parties do not agree+ it will be ascertained by the court with finality. 6. G *o e4ecutor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault. . E4ecutor or administrator is accountable if he neglects or delays to raise or pay the money he has on his hands. !ccountable if he neglects or delays to raise or pay money. he waste and the damage sustained by the estate may be charged and allowed against the administrator in his account. Sec. "e must account for the e4cess when he sells any part of the estate for more than appraisement+ and if any is sold for less than the appraisement+ he is not responsible for the loss+ if the sale has been %ustly made. Sec. G *o e4ecutor or administrator shall profit by the increase+ or suffer loss by the decrease or destruction+ without his fault+ of any part of the estate. Ahat e4penses and fees allowed e4ecutor or administrator. Sec. G Ahen an e4ecutor or administrator neglects or unreasonably delays to raise money+ by collecting the debts or selling the real or personal estate of the deceased+ or neglects to pay over the money he has in his hands+ and the value of the estate is thereby lessened or unnecessary cost or interest accrues+ or the persons interested suffer loss+ the same UP LAW BAROPS 2007 21 of 95 ONE UP LAW .. =. 7. G 1f the e4ecutor or administrator uses or occupies any part of the real estate himself+ he shall account for it as may be agreed upon between him and the parties interested+ or ad%usted by the court with their assent. *ot to charge for services as attorney. $ompensation provided by will controls unless renounced *o e4ecutor or administrator shall profit by the increase or lose by the decrease+ wit4 ut 4i" fault6 of any part of the estate. !ccountable for income from realty used by him. Ahen not accountable for debts due estate. and with the proceeds of so much of the estate as is sold by him+ at the price at which it was sold. J.
<< per day Bfor the time actually and necessarily employedC by him as such administrator.!n e4ecutor or administrator shall be allowed the necessary e4penses in the care+ management+ and settlement of the estate+ and for his services+ four pesos per day for the time actually and necessarily employed+ or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts+ e4penses+ legacies+ or distributive shares+ or by delivery to heirs or devisees+ of two per centum of the first five thousand pesos of such value+ one per centum of so much of such value as e4ceeds five thousand pesos and does not e4ceed thirty thousand pesos+ one-half per centum of so much of such value as e4ceeds thirty thousand pesos and does not e4ceed one hundred thousand pesos and one-Duarter per centum of so much of such value as e4ceed one hundred thousand pesos. UP LAW BAROPS 2007 22 of 95 ONE UP LAW . G he amount paid by an e4ecutor or administrator for costs awarded against him shall be allowed in his administration account+ unless it appears that the action or proceeding in which the costs are ta4ed was prosecuted or resisted without %ust cause+ and not in good faith. Nece""ar. !ttorney@s fees may be allowed as e4penses of administration. G Every e4ecutor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration+ unless the court otherwise directs because of e4tensions of time for presenting claims against+ or paying the debts of+ the estate+ or for disposing of the estate. Att rne.<' up to 21<<' and QP in e4cess of 21<<'. I. *ecessary e4penses of administration are such e4penses as are entailed for the preservation and productivity of the estate and for its management for purposes of liDuidation+ payment of debts+ and distribution of the residue among persons entitled thereto. ?. or 7P of the first 2J<<<+ 1P in e4cess of 2J<<< up to 2. or a Bcommission upon the value of so much of the estate as comes into his possession and finally disposed of by himC. Ahen the deceased by will ma'es some other provision for the compensation of his e4ecutor+ that provision shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces all claim to the compensation provided by the will. Ahen allowed money paid as costs. DeCGu:9anCCarill %702. Gu:9an /. 1f there are two or more e4ecutors or administrators+ the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. "eirs and other interested persons may inDuire into the value of the services of the lawyer and the necessity of its employment. E. ! greater sum may be allowed: (a) where the estate is large+ (b) the settlement has been attended with great difficulty+ and (c) has reDuired a high degree of capacity on the part of the e4ecutor. Ahen e4ecutor or administrator to render account.<" +ee" !dministrator may not recover attorney@s fees from the estate. C 9#en"ati n f an a!9ini"trat r 2=. Ahen the e4ecutor or administrator is an attorney+ he shall not charge against the estate any professional fees for legal services rendered by him. Aba!a. Sec.<<<<+ 1L7P in e4cess of 2. 1f the administrator himself is the counsel for the heirs+ it is the latter who must pay therefore. 1f ob%ection to the fees allowed be ta'en+ the allowance may be ree4amined on appeal. 0ut in any special case+ where the estate is large+ and the settlement has been attended with great difficulty+ and has reDuired a high degree or capacity on the part of the e4ecutor or administrator+ a greater sum may be allowed. and he shall render such further accounts as the court may reDuire until the estate is wholly settled. E4penses for the renovation and improvement of the family home to preserve the house and maintain the family@s social standing are allowable as legitimate administration e4pense.#en"e" @er9an " /. Sec.
E. ! hearing is usually held before an administrator@s account is approved+ especially if an interested party raises ob%ections to certain items in the accounting report. *otice to creditors to be issued by court. E4amination on oath with respect to account.e" %0. G 1n the notice provided in the preceding section+ the court shall state the time for the filing of claims against the estate+ which shall not be more than twelve (17) nor less than si4 (I) months after the date of the first publication of the notice. Sec.ten"i n f Peri ! !t any time before an order of distribution is entered+ on application of a creditor who has failed to file his claim within the time previously limited+ the court may+ for cause shown and on UP LAW BAROPS 2007 23 of 95 ONE UP LAW . C. 1. the claim must be filed with the probate court within the period prescribed. ! compromise in a separate civil case which is an action for collection against estate is null and void. Manaran$. !lso+ to apprise the administrator and the probate court of the e4istence of the claim so that a proper and timely arrangement may be made for its payment in full or pro rata portion in the due course of the administration. Every e4ecutor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration. !ccount to be settled on notice. G he court may e4amine the e4ecutor or administrator upon oath with respect to every matter relating to any account rendered by him+ and shall so e4amine him as to the correctness of his account before the same is allowed+ e4cept when no ob%ection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. Surety on bond may be party to accounting. 2urpose: to insure a speedy settlement of affairs of the deceased and early delivery of the property to the person entitled to the same. he duty of an administrator to render an account is not a mere incident of an administration proceeding which can be waived or disregarded when the same is terminated+ but that it is a duty that has to be performed and duly acted upon by the court before administration is finally ordered closed and terminated. 7. and such notice may be given personally to such persons interested or by advertisement in a newspaper or newspapers+ or both+ as the court directs. "owever+ at any time before an order of distribution is entered+ on application of a creditor who has failed to file his claim within the time previously limited+ the court may+ for cause shown and on such terms as are eDuitable+ allow such claim to be filed within a time not e4ceeding one (1) month. G >pon the settlement of the account of an e4ecutor or administrator+ a person liable as surety in respect to such account may+ upon application+ be admitted as party to such accounting. R(LE 05 C Clai9" a$ain"t E"tate Sec. Settle9ent f t4e E"tate & !eter9inati n e"tate an! clai9" a$ain"t it f #r #ert. he heirs+ legatees+ distributees+ and creditors of the estate shall have the same privilege as the e4ecutor or administrator of being e4amined on oath of any matter relating to an administration. ime within which claims shall be filed. ' " n / ' " n %5>2. G 0efore the account of an e4ecutor or administrator is allowed+ notice shall be given to persons interested of time and place of e4amining and allowing the same. 2urpose of presentation of claims against estate is to protect the estate of the deceased person. Re. 11. Gu:9an /. 1<. 2robate court is permitted to set the period provided it is not less than I months nor more than 17 months after the date of publication of notice. E"tate f Ola/e /.2. Sec. DeCGu:9anCCarill %702. Sec. Eppositors may present proof to rebut the administrator@s evidence in support of his accounts. f t4e Sant " /. 8. Sec. 1mmediately after granting letters testamentary or of administration+ the court shall issue a notice reDuiring all persons having money claims against the decedent to file them in the office of the cler' of said court. T4e Statute f N nCclai9" he period fi4ed by the rule where certain creditors of a deceased person must present their claims for e4amination and allowance.
3iling copy of printed notice. 2eriod runs against all claimants+ hence claims not presented within the time provided in the notice are barred. money claims against the estate may be allowed anytime before an order of distribution is entered at the discretion of the court for cause and upon such terms as are eDuitable. Acti n" w4ic4 Sur/i/e Deat4 he following cases survive the death of a party: an action to recover (1) contractual money claims+ (7) real or personal property or an interest therein+ from the estate+ or to enforce a lien therein+ and (. !ll claims for money against the decedent+ arising from contract+ e4press or implied+ whether the same be due+ not due+ or contingent+ all claims for funeral e4penses and e4penses for the last sic'ness of the decedent+ and %udgment for money against the decedent+ must be filed within the time limited in the notice. 71+ rule . $laims which must be filed under the notice. Enly money claims (that is any money+ debt+ or interest thereon)+ contracted by the decedent before his death may be presented in the testate or intestate proceedings. Such may be commenced against the administrator under rule ?6. E4ception: 3uneral e4penses and e4penses of the last sic'ness of the decedent. b. J. Sec. otherwise they are barred forever+ e4cept that they may be set forth as counterclaims in any action that the e4ecutor or administrator may bring against the claimants. 2eriod prescribed in the notice to creditors is not e4clusive. c. Pine!a /.#e f clai9" re7uire! t be file!a. T.6 Inc %572. !nd waiver is to be deduced from the administrator@s acts and conduct.) wee's successively in a newspaper of general circulation in the province+ and to be posted for the same period in four public places in the province and in two public places in the municipality where the decedent last resided. $ertainly the failure to plead the statute of non-claims+ the active participation and resistance to such claim+ in the civil suit+ amount to such waiver. $laims for ta4es due and assessed after death need not be presented in the form of a claim. G Aithin ten (1<) days after the notice has been published and posted in accordance with the preceding section+ the e4ecutor or administrator shall file or cause to be filed in the court a printed copy of the notice accompanied with an affidavit setting forth the dates of the first and last publication thereof and the name of the newspaper in which the same is printed. UP LAW BAROPS 2007 24 of 95 ONE UP LAW . !ccording to the Eld rules+ money claims arising from delict do not form part of this enumeration.1f not filed+ barred.such terms as are eDuitable+ allow such claim to be filed within a time not e4ceeding one (1) month. Pre"entati n f M ne. be wai/e! I$naci / Pa9#an$a =u" C . C+I. G Every e4ecutor or administrator shall+ immediately after the notice to creditors is issued+ cause the same to be published three (. . (udgment for money against decedent must be presented as a claim against the estate+ where %udgment debtor dies before levy on e4ecution of his properties. and allowing it to survive by filing a claim therefore before the estate of the deceased accused. $laims not yet due or contingent+ may be approved at their present value. M !ificati n f enu9erati n Sec. . Ec4au" / =lanc . 2ublication of notice to creditors.) action to recover damages for an in%ury to property+ real or personal. Ahere an e4ecutor or administrator commences an action+ or prosecutes an action already commenced by the deceased in his lifetime+ the debtor may set forth by answer the claims he has against the decedent+ instead of presenting them independently to the court as herein provided+ and mutual claims may be set off against each other in such action. J+ rule ?I provides an e4clusive enumeration of what claims may be filed against the estate. $ourt may direct e4ecutor or administrator to pay such ta4es. clai9 9a. "ence+ there could be no legal basis in treating an action e4 delicto as an ordinary contractual money claim referred to in Sec. e4ceptions. Sec. Sec. =. and if final %udgment is rendered in favor of the defendant+ the amount so determined shall be considered the true balance against the estate+ as though the claim had been presented directly before the court in the administration proceedings... hough presentment of probate claims is imperative+ it is generally understood that it may be waived by the estate@s representative.
Enly when there is a favorable %udgment that the %udgment shall be enforced in the manner provided in these rules for prosecuting claims against the estate of a deceased person. En$ C n$ /. or he may rely upon his mortgage of other security alone+ and foreclose the same at any time within the period of the statute of limitations+ and in that event he shall not be admitted as a creditor+ and shall receive no share in the distribution of the other assets of the estate. G ! creditor holding a claim against the deceased secured by mortgage or other collateral security+ may abandon the security and prosecute his claim in the manner provided in this rule+ and share in the general distribution of the assets of the estate. or he may foreclose his mortgage or reali#e upon his security+ by action in court+ ma'ing the e4ecutor or administrator a party defendant+ and if there is a %udgment for a deficiency+ after the sale of the mortgaged premises+ or the property pledged+ in the foreclosure or other proceeding to reali#e upon the security+ he may claim his deficiency %udgment in the manner provided in the preceding section. Ga"Aell H C . >npaid rentals are not simple money claims but may be the measure of the determination of damages. Sala:ar /. Ca"tane!a %702. ! creditor holding a claim against the deceased secured by mortgage or other collateral security+ (1) may abandon the security and prosecute his claim in the manner provided in this rule+ and share in the general distribution of the assets of the estate. Rule inclu!e" ab" lute an! c ntin$ent clai9" !bsolute claim is such claim as+ if contested between living person+ would be proper sub%ect of immediate legal action and would supply a basis of a %udgment for a sum certain. 6. he probate court case may be held in abeyance pending determination of an ordinary action wherein an e4ecutor or administrator is made a party.a %7?2. In!e#en!entCPlanter" A"" ciati n6 Inc %0. 1n a %oint obligation of the decedent+ the claim shall be confined to the portion belonging to him. 1f he fails in one+ he fails utterly. (7) or he may foreclose his mortgage %udicially and claim his deficiency from the estate (. @errera %752. G Ahere the obligation of the decedent is solidary with another debtor+ the claim shall be filed against the decedent as if he were the only debtor+ without pre%udice to the right of the estate to recover O" ri / San A$u"tin %>. A$uilar %782. CA %132. Sec. contribution form the other debtor.2.2. $ontingent claim is one+ by which+ by its nature is necessarily dependent upon an uncertain event for its e4istence and claim+ and its validity and enforceability depending upon an uncertain event.1f death occurred prior to the levy+ %udgment creditor must file claim in probate court. 5ortgage debt due from estate.) or he may foreclose e4tra%udicially and rely on his security alone 0ut the law does not provide that he may have both remedies. Tanc4uec /. !ction for e%ectment may be prosecuted despite the death of defendant and may continue until final %udgment in which the Duestion of damages should be ad%udicated. UP LAW BAROPS 2007 25 of 95 ONE UP LAW . Ahere the obligation of the decedent is solidary with another debtor+ the claim shall be filed against the decedent as if he were the only debtor+ without pre%udice to the right of the estate to recover contribution from the other debtor. PN= /. P. Si9#le 9 ne. 1f defendant dies while appeal is pending+ appeal continues and after final %udgment+ a claim may be filed within time limits. Din$la"an / An$ C4ia. but nothing herein contained shall prohibit the e4ecutor or administrator from redeeming the property mortgaged or pledged+ by paying the debt for which it is held as security+ under the direction of the court+ if the court shall ad%udge it to be for the best interest of the estate that such redemption shall be made. Solidary obligation of decedent. 1n a %oint obligation of the decedent+ the claim shall be confined to the portion belonging to him. Manalan"an /. /. !ction for foreclosure of mortgage survives and may be enforced by writ of e4ecution against the administrator without filing a claim in probate court. I. 9different types of claims against the estate: Sec. E4amples of the latter are: surety of a contract+ indorser of a negotiable instrument+ etc. clai9" n a##eal an! !efen!ant !ie" Pare!e" /. Tan Sit. M .
ri$4t t clai9 !eficienc. un!er t4e t4ir! #ti n he ,rd option: he mortgagee may rely upon his mortgage or other security alone+ and foreclose the same at any time within the period of the statute of limitations without right to file a claim for any deficiency.
Pere: / PN= %552. he third mode includes e4tra%udicial foreclosure sales+ the result of which is that the creditor waives any further deficiency claim. Sec. ?. $laim of e4ecutor or administrator against an estate. G 1f the e4ecutor or administrator has a claim against the estate he represents+ he shall give notice thereof+ in writing+ to the court+ and the court shall appoint a special administrator+ who shall+ in the ad%ustment of such claim+ have the same power and be sub%ect to the same liability as the general administrator or e4ecutor in the settlement of other claims. he court may order the e4ecutor or administrator to pay to the special administrator necessary funds to defend such claim. Sec. 8. "ow to file a claim. $ontents thereof. *otice to e4ecutor or administrator. G ! claim may be filed by delivering the same with the necessary vouchers to the cler' of court and by serving a copy thereof on the e4ecutor or administrator. 1f the claim be founded on a bond+ bill+ note or any other instrument+ the original need not be filed+ but a copy thereof with all indorsements shall be attached to the claim and filed therewith. En demand+ however+ of the e4ecutor or administrator+ or by order of the court or %udge+ the original shall be e4hibited+ unless it be lost or destroyed+ in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or particular description of the instrument and stating its loss or destruction. Ahen the claim is due+ it must be supported by affidavit stating the amount %ustly due+ that no payments have been made thereon which are not credited+ and that there are no offsets to the same+ to the 'nowledge of the affiant. 1f the claim is not due+ or is contingent+ when filed+ it must also be supported by affidavit stating the particulars thereof. Ahen the affidavit is made by a person other than the claimant+ he must set forth therein the reason why it is not made by the claimant. he claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued+ although the court+ in its discretion+ and as a matter of convenience+ may order all the claims to be collected in a separate action.
"ow to file a claim: ! claim may be filed by delivering the same with the necessary vouchers to the cler' of court and by serving a copy thereof on the e4ecutor or administrator. 1f the claim be founded on a bond+ bill+ note+ or any other instrument+ the original need not be filed+ but a copy thereof with all indorsements shall be attached to the claim and filed therewith. Ahen the claim is due+ it must be supported by affidavit stating the amount %ustly due+ that no payments have been made thereon which are not credited+ and that there are no offsets to the same+ to the 'nowledge of the affiant. 1f the claim is not due+ or is contingent+ when filed+ it must also be supported by affidavit stating the particulars thereof. he claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued.
Sec. 1<. !nswer of e4ecutor or administrator. Effsets. G Aithin fifteen (1J) days after service of a copy of the claim on the e4ecutor or administrator+ he shall file his answer admitting or denying the claim specifically+ and setting forth the substance of the matters which are relied upon to support the admission or denial. 1f he has no 'nowledge sufficient to enable him to admit or deny specifically+ he shall state such want of 'nowledge. he e4ecutor or administrator in his answer shall allege in offset any claim which the decedent before death has against the claimant+ and his failure to do so shall bar the claim forever. ! copy of the answer shall be served by the e4ecutor or administrator on the claimant. he court in its discretion may e4tend the time for filing such answer. Sec. 11. )isposition of admitted claim. G !ny claim admitted entirely by the e4ecutor or administrator shall immediately be submitted by the cler' to the court who may approve the same without hearing. but the court+ in its discretion+ before approving the claim+ may order that 'nown heirs+ legatees+ or devisees be notified and heard. 1f upon hearing+ an heir+ legatee+ or devisee opposes the claim+ the court may+ in its discretion+ allow him fifteen (1J) days to file an answer to the claim in the manner prescribed in the preceding section. Sec. 17. rial of contested claim. G
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>pon the filing of an answer to a claim+ or upon the e4piration of the time for such filing+ the cler' of court shall set the claim for trial with notice to both parties. he court may refer the claim to a commissioner. Sec. 1,. (udgment appealable. G he %udgment of the court approving or disapproving a claim+ shall be filed with the record of the administration proceedings with notice to both parties+ and is appealable as in ordinary cases. ! %udgment against the e4ecutor or administrator shall be that he pay+ in due course of administration+ the amount ascertained to be due+ and it shall not create any lien upon the property of the estate+ or give to the %udgment creditor any priority of payment. Sec. 1=. $osts. G Ahen the e4ecutor or administrator+ in his answer+ admits and offers to pay part of a claim+ and the claimant refuses to accept the amount offered in satisfaction of his claim+ if he fails to obtain a more favorable %udgment+ he cannot recover costs+ but must pay to the e4ecutor or administrator costs from the time of the offer. Ahere an action commenced against the deceased for money has been discontinued and the claim embraced therein presented as in this rule provided+ the prevailing party shall be allowed the costs of his action up to the time of its discontinuance. R(LE 07 ACTIONS =Y AND AGAINST EKEC(TORS AND ADMINISTRATORS Sec. 1. !ctions which may and which may not be brought against e4ecutor or administrator. G *o action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the e4ecutor or administrator. but actions to recover real or personal property+ or an interest therein+ from the estate+ or to enforce a lien thereon+ and actions to recover damages for an in%ury to person or property+ real or personal+ may be commenced against him. $laims against the !dministrator may be presented in the !dministration proceedings but not against third persons. )emands against the administrator are presented in the same special proceeding if the demand has relation to an act of administration and in the ordinary course thereof since the administration is under the direct
supervision of the court and the administrator is sub%ect to its authority Paula /. Ec"a.6 17 P4il 5>7. 0ut if demand is in favor of the administrator+ and the party against whom it is enforced is a third party+ demand cannot be made by a mere motion+ but must be by an independent action against the third person Re#ublic /. De la Ra9a6 >2? P4il >?1,. Ahen an estate is under administration+ notice must be sent to the administrator of the estate& and not the heirs& since it is the said administrator+ as representative of the estate+ who has the legal obligation to pay and discharge all the debts of the estate and perform all the orders of the court.
Mel$ar /. =uen/iaBe6 >101. !n action for damages may be brought against an e4ecutor or administrator. R 9ual!e: /. Ti$la 6 >83 SCRA 752. !s a general rule+ no action upon a claim for recovery of money or debt or interest shall be commenced against the e4ecutor or administrator because the creditor@s remedy is to file a proper claim in the proceeding for the settlement of the deceased@s estate. 0ut if the %udgment creditors had no alternative but to file an action for revival of money %udgment to pre-empt its e4tinguishment by prescription+ the action may be properly filed against the administrator. Sec. 7. E4ecutor or administrator may bring or defend actions which survive. G 3or the recovery or protection of the property or rights of the deceased+ an e4ecutor or administrator may bring or defend+ in the right of the deceased+ actions for causes which survive. Acti n" w4ic4 "ur/i/e
=a. t /. Iurbit 6 ,1 P4il 538. Recogni#es the right of the e4ecutor or administrator to sue upon any cause of action which accrued to the decedent during his lifetime E4cept for money claims specified in Section J of R?Iwhich shall be file in the testate or intestate proceedings in the form of claims against the estate+ all other actions for causes of action which survive affecting the property rights of the deceased may be commenced against the e4ecutor or administrator.
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A$ua" /. Llen " %522. 1n%ury to property is not limited to in%uries to specific property but e4tends to other wrongs such as maliciously causing a party to cause unnecessary e4penses Mel$ar /. =uen/iaBe %012. !ction for damages caused by tortuous acts may be brought against the e4ecutor or administrator of the estate Sec. ,. "eir may not sue until have share assigned. G Ahen an e4ecutor or administrator is appointed and assumes the trust+ no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee until the time allowed for paying debts has e4pired. Pre/i u" !eclarati n f 4eir"4i# N t nece""ar.
Del R "ari /. Del R "ari 6 2 P4il. ,2>. he prohibition does not apply to donees inter vivos+ who may file an action to compel the administrator to deliver the property. w4ere acti n 9a. be file! b. 4eir" in c urt
%urisprudence recogni#es three e4ceptions to the rule that the heirs do not have legal standing to represent the rights and properties of the decedent during the pendency of administration proceedings: (a) if the e4ecutor or administrator is unwilling or refuses to bring suit %Pa"cual /. Pa"cual6 %?222* (b) when the administrator is alleged to have participated in the act complained of and he is made a party defendant %= rr 9e /. = rr 9e 6 %3522* and (c) when there is no administrator appointed %Ri feri /. CA6 %8?22 Sec. =. E4ecutor or administrator may compound with debtor. G Aith the approval of the court+ an e4ecutor or administrator may compound with the debtor of the deceased for a debt due+ and may give a discharge of such debt on receiving a %ust dividend of the estate of the debtor. Sec. J. 5ortgage due estate may be foreclosed. G ! mortgage belonging to the estate of a deceased person+ as mortgagee or assignee of the right of a mortgagee+ may be foreclosed by the e4ecutor or administrator.
Suili n$ /. Marine In"urance6 >2 P4il >,. (udicial declaration of heirship is not necessary in order that an heir may assert his right to the property of a deceased. his is based on the theory that the property of the deceased person+ becomes property of the heir by the mere fact of death of his predecessor in interest+ and as such he can deal with it precisely the same way in which by law or contract may be imposed upon the deceased himself. @eir" 9a. brin$ a Rein/in!icat r. acti n bef re !eclarati n f 4eir"i#
=anaci4an /. Aliib !b !. "eirs may bring reinvindicatory action in their o%n names against the possessor or holder of a piece of land inherited by them+ it not being necessary that their status as heirs be first declared in an administration proceeding. @eir" 9a. n t "ue w4en t4ere i" an a!9ini"trat r a## inte!6 until "4are i" a""i$ne! *o action to recover the title or possession of lands or for damages done to such lands may be maintained by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee or until the time allowed for paying debts has e4pired 0efore distribution is made or before any residue is 'nown+ the heirs or devisees have no cause of action against the administrator for the recovery of the property left by the deceased.
Cali9ba" /. Pa$ui 6 ?5 P4il 355. !dministrator or e4ecutor does not need a special authority from the court to bring an action for foreclosure on behalf of the estate Sec. I. 2roceedings when property concealed+ embe##led+ or fraudulently conveyed. G 1f an e4ecutor or administrator+ heir+ legatee+ creditor+ or other individual interested in the estate of the deceased+ complains to the court having %urisdiction of the estate that a person is suspected of having concealed+ embe##led+ or conveyed away any of the money+ goods+ or chattels of the deceased+ or that such person has in his possession or has 'nowledge of any deed+ conveyance+ bond+ contract+ or other writing which contains evidence of or tends to disclose the right+ title+ interest+ or claim of the deceased to real or personal estate+ or the last will and testament of the deceased+ the court may cite such
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!nthal#) Sec. G he court+ on complaint of an e4ecutor or administrator+ may cite a person entrusted by an e4ecutor or administrator with any part of the estate of the deceased to appear before it+ and may reDuire such person to render a full account+ on oath+ of the money+ goods+ chattels+ bonds+ accounts+ or other papers belonging to such estate as came to his possession in trust for such e4ecutor or administrator+ and of his proceedings thereon. 0ut the action shall not be commenced until the creditors has filed in a court a bond e4ecuted to the e4ecutor or administrator+ in an amount approved by the %udge+ conditioned to indemnify the e4ecutor or administrator against the costs and e4penses incurred by reason of such action. G Ahen there is deficiency of assets in the hands of an e4ecutor or administrator for the payment of debts and e4penses of administration+ and the deceased in his lifetime had conveyed real or personal property+ or a right or interest therein+ or a debt or credit+ with intent to defraud his creditors or to avoid any right+ debt+ or duty. or had so conveyed such property+ right+ interest+ debt+ or credit that by law the conveyance would be void as against his creditors+ and the sub%ect of the attempted conveyance would be liable to attachment by any of them in his lifetime+ the e4ecutor or administrator may commence and prosecute to final %udgment an action for the recovery of such property+ right+ interest+ debt+ or credit for the benefit of the creditors. G Ahen there is such a deficiency of assets+ and the deceased in his lifetime had made or attempted such a conveyance+ as is stated in the last preceding section+ and the e4ecutor or administrator has not commenced the action therein provided for+ any creditor of the estate may+ with the permission of the court+ commence and prosecute to final %udgment+ in the name of the e4ecutor or administrator+ a li'e action for the recovery of the sub%ect of the conveyance or attempted conveyance for the benefit of the creditors. G 1f a person+ before the granting of letters testamentary or of administration on the estate of the deceased+ embe##les or alienates any of the money+ goods+ chattels+ or effects of such deceased+ such person shall be liable to an action in favor of the e4ecutor or administrator of the estate for double the value of the property sold+ embe##led+ or alienated+ to be recovered for the benefit of such estate. UP LAW BAROPS 2007 29 of 95 ONE UP LAW . 1<. Sec. 2erson entrusted with estate compelled to render account.a9inati n Elicit information or secure evidence from the persons suspected of having possession or 'nowledge of the property or will of the deceased or of having concealed+ embe##led+ or conveyed away any of the property of the deceased 1n such proceeding+ court has no authority to ad%udicate titles or determine converted rights. Embe##lement before letters issued. Sec. rule contemplates of an embe##lement or alienation which causes the estate to lose the property converted by the wrongdoer (5arshall v. Ahen creditor may bring action. merely to investigate and ta'e testimony for use in an independent action C4ua /. ?. Ahen e4ecutor or administrator must bring action. Ab" lute Mana$e9ent C r#6 %8. and if the person so cited refuses to appear+ or to answer on such e4amination or such interrogatories as are put to him+ the court may punish him for contempt+ and may commit him to prison until he submits to the order of the court. 2roperty fraudulently conveyed by deceased may be recovered. Kien for costs. 6. and if the person so cited refuses to appear to render such account+ the court may punish him for contempt as having disobeyed a lawful order of the court. 1f after e4amination there is good reason for believing for believing that the person so e4amined has property in his possession belonging to the estate+ it is the duty of the administrator+ by ordinary action to recover the same. 8. Sec.s office. NOTES AND CASES )ouble value rule does not apply to the manager of a company who carries on the business after the death of his principal and applies the proceeds of sale to the payment of debts contracted in running the business. Ahere the conveyance or attempted conveyance has been made by the Pur# "e f E. Such creditor shall have a lien upon any %udgment recovered by him in the action for such costs and other e4penses incurred therein as the court deems eDuitable. but he shall not be bound to commence the action unless on application of the creditors of the deceased+ nor unless the creditors ma'ing the application pay such part of the costs and e4penses+ or give security therefor to the e4ecutor or administrator+ as the court deems eDuitable.2.suspected person to appear before it and may e4amine him on oath on the matter of such complaint. he interrogatories put to any such person+ and his answers thereto+ shall be in writing and shall be filed in the cler'.
Realty is liable for debts and e4penses only when 1. sale of personalty would be detrimental to the participants of the estate Sec. Sant " /. 2ersonalty first chargeable for debts+ then realty.Even if the testator has ac'nowledged a specific debt in his will+ the creditor must still file is claim otherwise it would be barred (see also Rule ?I) Sec. =. ReDuisites for $reditor to file action: 1. sub%ect of the attempted conveyance would be liable to attachment by any of them in his lifetime =. G 1f the court is satisfied that a contingent claim duly filed is valid+ it may order the e4ecutor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute+ or+ if the estate is insolvent+ sufficient to pay a portion eDual to the dividend of the other creditors. reDuisites is unnecessary where the grantee is the e4ecutor or administrator himself in which event the action would be in the name of all the creditors Sec.deceased in his lifetime in favor of the e4ecutor or administrator+ the action which a creditor may bring shall be in the name of all the creditors+ and permission of the court and filing of bond as above prescribed+ are not necessary. or had so conveyed such property+ right+ debt or credit that by law the conveyance would be void as against his creditors . 1f such contingent claim becomes absolute and is presented to the R(LE 00 & PAYMENT O+ T@E DE=TS O+ T@E ESTATE Sec. and if said personal estate is not sufficient for that purpose+ or its sale would redound to the detriment of the participants of the estate+ the whole of the real estate not disposed of by will+ or so much thereof as is necessary+ may be sold+ mortgaged+ or otherwise encumbered for that purpose by the e4ecutor or administrator+ after obtaining the authority of the court therefor.. e4ecutor or administrator had shown to have no desire to file the action or failed to institute the same within reasonable time J. J. ! writ of e4ecution is not proper to enforce payment of debts and e4penses of administration. G 1f the testator ma'es provision by his will+ or designates the estate to be appropriated for the payment of debts+ the e4penses of administration+ or the family e4penses+ they shall be paid according to the provisions of the will.. but if the provisions made by the will or the estate appropriated+ is not sufficient for that purpose+ such part of the estate of the testator+ real or personal+ as is not disposed of by will+ if any+ shall be appropriated for that purpose. o 2roceeds will be used to pay all the outstanding debts and the e4penses of administration UP LAW BAROPS 2007 30 of 95 ONE UP LAW . there is a deficiency of assets in the hands of an e4ecutor or administrator for the payment of debts and e4penses of administration 7. G he personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and e4penses. the personal estate of the decedent is not sufficient for the purpose+ or 7. . deceased in his lifetime had made or attempted to ma'e a fraudulent conveyance of his property+ or a right or interest therein+ or debt or credit+ with intent to defraud his creditors or to avoid any right+ debt or duty. 7. "ow contingent claim becoming absolute in two years allowed and paid. Sec. action by creditor is in the name of the e4ecutor or administrator !ccording to (ustice 5oran+ the last . bond is filed by the creditor as prescribed by the rule 6. leave is granted by the court to the creditor to file the action I. Manaran$6 27 P4il 281. G 1f+ after hearing all the money claims against the estate+ and after ascertaining the amount of such claims+ it appears that there are sufficient assets to pay debts+ the e4ecutor or administrator shall pay the same within the time limited for that purpose. 2art of estate from which debt paid when provision made by will. !ny deficiency shall be met by contributions in accordance with the provisions of section I of this rule. 1. Estate to be retained to meet contingent claims. he proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased. )ebts paid in full if estate sufficient. !ction against distributees later.
0ut if the claim is not so presented+ after having become absolute+ within said two (7) years+ and allowed+ the assets retained in the hands of the e4ecutor or administrator+ not e4hausted in the payment of claims+ shall be distributed by the order of the court to the persons entitled to the same. Erder of payment if estate insolvent. he hereditary property is the part that remains after the settlement of all lawful claims against the estate. Ahen and how claim proved outside the 2hilippines against insolvent resident.8 to 77J1 of the $ivil $ode.court+ or to the e4ecutor or administrator+ within two (7) years from the time limited for other creditors to present their claims+ it may be allowed by the court if not disputed by the e4ecutor or administrator+ and+ if disputed+ it may be proved and allowed or disallowed by the court as the facts may warrant. but the benefit of this and the preceding sections shall not be e4tended to the creditors in another country if the property of such deceased person there found is not eDually apportioned to the creditors residing in the 2hilippines and the other creditors+ according to their respective claims. 1<. G Ahere devisees+ legatees+ or heirs have entered into possession of portions of the estate before the debts and e4penses have been settled and paid+ and have become liable to contribute for the payment of such debts and e4penses+ the court having %urisdiction of the estate may+ by order for that purpose+ after hearing+ settle the amount of their several liabilities+ and order how much and in what manner each person shall contribute+ and may issue e4ecution as circumstances reDuire. 8. Estate of insolvent nonresident+ how disposed of. Sec.2. 1f the contingent claim is allowed+ the creditor shall receive payment to the same e4tent as the other creditors if the estate retained by the e4ecutor or administrator is sufficient. *o creditor of any one class shall receive any payment until those of the preceding class are paid. CA6 %0. G 1n case administration is ta'en in the 2hilippines of the estate of a person who was at the time of his death an inhabitant of another country+ and who died insolvent+ his estate found in the 2hilippines shall+ as far as practicable+ be so disposed of that his creditors here and elsewhere may receive each an eDual share+ in proportion to their respective credits. 1f the contingent claim matures after the e4piration of 7 years+ the creditor may sue the distributees+ whose liability is proportionate to the shares in the estate received by them Rule ??. )ividends to be paid in proportion to claims. Sec. I. Since a legacy is not a debt of the estate+ legatees are among those against whom e4ecution may issue. $ourt to fi4 contributive shares where devisees+ legatees+ or heirs have been in possession. but the assets so distributed may still be applied to the payment of the claim when established+ and the creditor may maintain an action against the distributees to recover the debt+ and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased. Sec.J is the only instance wherein a creditor may file an action against the distributee of the estate he contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees Sec. Sec. G 1f there are no assets sufficient to pay the credits of any one class of creditors after paying the credits entitled to preference over it+ each creditor within such class shall be paid a dividend in proportion to his claim.s estate paid. G 1f the assets which can be appropriated for the payment of debts are not sufficient for that purpose+ the e4ecutor or administrator shall pay the debts against the estate+ observing the provisions of !rticles 1<J8 and 77. ?. he heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount received by them. 6. G 1f it appears to the court having %urisdiction that claims have been duly proven in another country against the estate of an insolvent who was at the time of his death an inhabitant of the 2hilippines+ and that the e4ecutor or administrator in the 2hilippines had 'nowledge of the presentation of such claims in such country and an opportunity to contest their allowance+ the court shall receive a certified list of such claims+ when perfected in such country+ and add the same to the list of claims proved against the deceased person in the 2hilippines so that a %ust distribution of the whole estate may be made eDually among all its creditors according to their respective claims. UP LAW BAROPS 2007 31 of 95 ONE UP LAW . o Pa"t r /.
@eir" f S# u"e" Re9e!i " San!eBa" an! Eli ! r San!eBa" /". G En granting letters testamentary or administration the court shall allow to the e4ecutor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased+ which shall not+ in the first instance+ e4ceed one (1) year. ime for paying debts and legacies fi4ed+ or e4tended after notice+ within what periods. Sec. Sec. Erder for payment of debts. Sec. 11. Erders relating to payment of debts where appeal is ta'en. Lina6 %8>2. Sec. Sec. Aba!a6 ?8 P4il >2?. 1J. G 1f the whole of the debts are not paid on the first distribution+ and if the whole assets are not distributed+ or other assets afterwards come to the hands of the e4ecutor or administrator+ the court may from time to time ma'e further orders for the distribution of assets. Successor of dead e4ecutor or administrator may have time e4tended on notice within certain period. 1I. Ahen subseDuent distribution of assets ordered. but the court may+ on application of the e4ecutor or administrator and after hearing on such notice of the time and place therefor given to all persons interested as it shall direct+ e4tend the time as the circumstances of the estate reDuire not e4ceeding si4 (I) months for a single e4tension nor so that the whole period allowed to the original e4ecutor or administrator shall e4ceed two (7) years. Ahen a disputed claim is finally settled the court having %urisdiction of the estate shall order the same to be paid out of the assets retained to the same e4tent and in the same proportion with the claims of other creditors. G 0efore the e4piration of the time limited for the payment of the debts+ the court shall order the payment thereof+ and the distribution of the assets received by the e4ecutor or administrator for that purpose among the creditors+ as the circumstances of the estate reDuire and in accordance with the provisions of this rule. Li:arra$a /. 17. he probate court must e4ert themselves to close the estates within 17 months from the time they are presented+ and they may refuse to allow any compensation to e4ecutor or administrators who do not actively labor to that end+ and may even adopt harsher measures (removal or payment of damages) 2eriod to be fi4ed by the court to settle the estate o not e4ceed 1 year in the first instance+ or o not more than 7 years where special circumstances so reDuire+ or o not more than 7 years and a half when the e4ecutor or administrator dies and a new one is appointed. G 1f an appeal has been ta'en from a decision of the court concerning a claim+ the court may suspend the order for the payment of the debts or may order the distribution among the creditors whose claims are definitely allowed+ leaving in the hands of the e4ecutor or administrator sufficient assets to pay the claim disputed and appealed. !lthough Rule ?8 reDuires court UP LAW BAROPS 2007 32 of 95 ONE UP LAW . $reditors to be paid in accordance with terms of order.Sec. E4ecution may issue only where the devisees+ legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of the debts and e4penses of administration and it is late ascertained that there are such debts and e4penses to be paid. 1=. G Ahen an order is made for the distribution of assets among the creditors+ the e4ecutor or administrator shall+ as soon as the time of payment arrives+ pay the creditors the amounts of their claims+ or the dividend thereon+ in accordance with the terms of such order.. 1. G Ahen an e4ecutor or administrator dies+ and a new administrator of the same estate is appointed+ the court may e4tend the time allowed for the payment of the debts or legacies beyond the time allowed to the original e4ecutor or administrator+ not e4ceeding si4 (I) months at a time and not e4ceeding si4 (I) months beyond the time which the court might have allowed to such original e4ecutor or administrator. Rule 01 SALES6 MORTGAGES6 AND OT@ER ENC(M=RANCES O+ PROPERTY O+ DECEDENT Section 1. and notice shall be given of the time and place for hearing such application+ as reDuired in the last preceding section. /rder of sale of personalt* >pon the application of the e4ecutor or administrator+ and on written notice to the heirs and other persons interested+ the court may order the whole or a part of the personal estate to be sold+ if it appears necessary for the purpose of paying debts+ e4penses of administration+ or legacies+ or for the preservation of the property.
! stipulation reDuiring court approval does not affect the validity and effectivity of the sale. 2isposal of proceeds. Ahen the sale of personal estate+ or the sale+ mortgage+ or other encumbrance of real estate is not necessary to pay the debts+ e4penses of administration+ or legacies in the 2hilippines+ but it appears from the records and proceedings of a probate court in another country that the estate of the deceased in such other country is not sufficient to pay the debts+ e4penses of administration+ and legacies there+ the court here may authori#e the e4ecutor or administrator to sell+ mortgage+ or otherwise encumber the real estate for the payment of debts or legacies in the other country+ in the same manner as for the payment of debts or legacies in the 2hil.82. Ortali: /.. 0ersons interested ma* prevent such sale& etc.& b* giving bond *o such authority to sell+ mortgage or otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond+ in a sum to be fi4ed by the courts+ conditioned to pay the debts+ e4penses of administration+ and legacies within such time as the court directs. hey can sell their rights+ interests or participation in the property under administration. *otice to counsel or guardian ad litem+ however+ is sufficient >nder rule ?7.=+ the authority granted by the court to the former e4ecutor or administrator for the sale or mortgage of real estate may be renewed in favor of the new administrator or e4ecutor without further notice or hearing. /. Section 7. Ahen it appears that the sale of the whole or a pat of the real or personal estate+ will be beneficial to the heirs+ devisees+ legatees+ and other interested persons+ the court may+ upon application of the e4ecutor or administrator and on written notice to the heirs+ devisees+ and legatees who are interested in the estate to be sold+ authori#e the e4ecutor or administrator to sell the whole or part of said estate+ although not necessary to pay debts+ legacies or e4penses of administration. UP LAW BAROPS 2007 33 of 95 ONE UP LAW . he reason for this reDuirement is that all the heirs are the presumptive owners. 1n case of such sale+ the proceeds shall be assigned to the persons entitled to the estate in the proper proportions. =aun %122. Section . Section =.approval for the disposition of the estate of the decedent+ %udicial approval cannot adversely affect the substantive rights of heirs to dispose of their own pro indiviso shares in the coheirship or co-ownership. and if a part cannot be sold+ mortgaged or otherwise encumbered without in%ury to those interested in the remainder+ the authority may be for the sale+ mortgage or other encumbrance of the whole of such real estate or so much thereof as is necessary or beneficial under the circumstances. but such authority shall not be granted if inconsistent with the provisions of a will. ¤ ¤ ¤ ¤ Maneclan$ /. 1t merely implies that the property may be ta'en out of custodia legis+ but only with the court@s permission. Re$i"trar f Dee!" %. and such bond shall be for the security of the creditors+ as well as of the e4ecutors or administrator+ and may be prosecuted for the benefit of either. Section J. De/el #9ent6 Inc. CA6 %0?2. When the court ma* authori$e sale& mortgage& or other encumbrance of estate to pa* debts and legacies in other countries. When the court ma* authori$e sale& mortgage& or other encumbrance of realt* to pa* debts and legacies though personalt* not e(hausted Ahen the personal estate of the deceases is not sufficient to pay the debts+ e4penses of administration+ and legacies or where the sale of such personal estate may in%ure the business or other interests of those interested in the estate+ and where a testator has not otherwise made sufficient provision for the payment of such debts+ e4penses and legatees residing in the 2hilippines+ the court on the application of the e4ecutor or administrator and on written notice to the heirs+ devisees+ and legatees+ residing in the 2hilippines+ may authori#e the e4ecutor or administrator to sell+ mortgage+ or otherwise encumber so much as may be necessary of the real estate+ in lieu of the personal estate+ for the purpose of paying such debts+ e4penses and legacies+ if it clearly appears that such sale+ mortgage or encumbrance would be beneficial to the person interested. When the court ma* authori$e sale of estate as beneficial to interested persons. he father or mother is the administrator of the child@s property+ but notice to them alone is not sufficient. he probate court may rescind its order authori#ing the administrator to sell realty to a third party and this third party cannot dispute such an order and ob%ect to the sale of the property to another party without putting up a bond for the security of creditors as well as the administrator. Pi =arret Realt.
UP LAW BAROPS 2007 34 of 95 ONE UP LAW . such authority may be validly given despite ob%ection of one or more of the heirs. ¤ ¤ ¤ ¤ d. Sale of land under %udicial administration needs approval of the sale b* the court to be effective.uired on e(ecution or foreclosure.7 SCRA 03. he administrator occupies a portion of the highest trust. G ! . Genat 6 >. he order of sale and the sale made will be void if they are not complied with. if the estate is to be sold at auction+ the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of e4ecution sale.e". !ctual 'nowledge of the application for sale may estop the heir or interested party from Duestioning the sale. La /.uestioning the regularit* of the sale. he court may authori#e an e4ecutor or administrator to sell+ mortgage+ or otherwise encumber real estate acDuired by him on e4ecution or foreclosure sale+ under the same circumstances and under the same regulations prescribed in this rule for sale+ mortgage+ or other encumbrance of other real estate. f. he regulations apply to both testate and intestate proceedings and are mandator*. !egulations for granting authorit* to sell& mortgage& or other%ise encumber estate. Ahen the estate is already sub%ect to a testate or intestate proceeding+ the administrator cannot enter into any transaction involving it without prior probate court approval. if the court reDuires it+ the e4ecutor or administrator shall give an additional bond+ in such sum as the court directs+ conditioned that such e4ecutor or administrator will account for the proceeds of the sale+ mortgage+ or other encumbrance. if the reDuirements in the preceding subdivisions of this section have been complied with the court+ by order stating such compliance+ may authori#e the e4ecutor or administrator to sell+ mortgage+ or otherwise encumber+ in proper cases+ such part of the estate as deemed necessary+ and in case of sale the court may authori#e it to be public or private as would be most he e4ecutor or administrator shall be furnished with a certified copy of such order. "e should act with utmost circumspection to preserve the estate and guard against its dissipation so as not to pre%udice its creditors and the heirs.beneficial to all parties concerned. there shall be recorded in the registry of deeds of the province in which the real estate thus sold+ mortgaged+ or otherwise encumbered is situated+ a certified copy of the order of the court+ together with the deed of the e4ecutor or administrator for such real estate+ which shall be valid as if the deed had been e4ecuted by the deceased in his lifetime. the court shall thereupon fi4 a time and place for the hearing of such petition+ and cause notice stating the nature of the petition+ the reason for the same+ and the time and place for the hearing+ to be given personally or by mail to the persons interested+ and may cause such further notice to be given+ by publication or otherwise+ as it shall deem proper. ¤ b. Section 6. the e4ecutor or administrator shall file a written petition setting forth the debts due from the deceased+ the e4penses of administration+ the legacies+ the value of the personal estate+ the situation of the estate to be sold+ mortgaged+ or otherwise encumbered+ and such other facts to show that the sale+ mortgage+ or other encumbrance is necessary or beneficial. / Orellan . ¤ ¤ c. he court having %urisdiction of the estate of the deceased may authori#e the e4ecutor or administrator to sell personal estate+ or to sell+ mortgage+ or otherwise encumber real estate+ in cases provided by these rules and when it appears necessary or beneficial under the following regulations: a. o guarantee faithful compliance with the authority granted+ the order of the court ma'es it an emphatic dut* on the part of the administrator to submit to the court for approval transactions made by him. E"tate f Ola/e / Re. Sale by the administrator which is not authori#ed by the probate court is null and void and does not pass title to the purchaser. e. Ahere a party did not ob%ect to the order of the court and participated in the sale+ he is estopped from . When the court ma* authori$e sale& mortgage& or other encumbrance of realt* ac. Section I.
but no such conveyance shall be authori#ed until notice of the application for that purpose has been given personally or by mail to all persons interested+ and such further notice has been given+ by publication or otherwise+ as the court deems proper. Ahile section ? does not specify who should file the application+ it stands to reason that the proper party must be one who is to be benefitedLin%ured Real 2roperty 2ersonal estate is not sufficient+ or Sale of such personal estate may in%ure the UP LAW BAROPS 2007 35 of 95 ONE UP LAW . Ahere the deceased in his lifetime held real property in trust for another person+ the court may+ after notice given as reDuired in the last preceding section+ authori#e the e4ecutor or administrator to deed such property to the person+ or his e4ecutor or administrator+ for whose use and benefit it was so held. Notice. CA %8?2. Section ?. o attac' the nullity of the order of the probate court to sell the property of the deceased+ it must be shown that the contract of sale is null and void. 3ffect of deed. Reference to %udicial approval (R?8. Ahere the deceased was in his lifetime under contract+ binding in law+ to deed real property+ or an interest therein+ the court having %urisdiction of the estate may+ on application for that purpose+ authori#e the e4ecutor or administrator to convey such property according to such contract+ or with such modifications as are agreed upon by the parties and approved by the court. hough the order of the probate court approving sale of the decedent@s property is final+ the respondent may file a complaint in the proper court for the rescission of the sale.? does not prescribe that only the administratorLe4ecutor can apply for the approval of a sale of realty under administration. When the court ma* authori$e conve*ance of realt* %hich deceased contracted to conve*. he heirs have the right to dispose of their ideal share in an inheritance+ even if the same is under administration+ based on the civil code: possession of hereditary property is deemed transmitted from moment of death if the inheritance is accepted+ and until it is partitioned+ it is owned in common by such heirs. San!eBa" an! Eli ! r San!eBa" /". and if the contract is to convey real property to the e4ecutor or administrator+ the cler' of court shall e4ecute the deed. Pi =arrett Realt. 2roperty to be Sold 2ersonalty 2urpose 2ay debts+ e4penses of administration+ or legacies o preserve the property (H1) 2ay debts+ e4penses of administration+ or legacies o preserve the property $onditions !pplication of e4ecutor or administrator Aritten *otice to heirs and other interested persons (H1) !pplication of e4ecutor or administrator Aritten *otice to heirs and other @eir" f S# u"e" Re9e!i " R.¤ "ence+ the same court can declare the sale null and void for as long as the proceedings had not been closed. his provision should be differentiated from Sections 7 and = specifically reDuiring only the e4ecutor or administrator to file an application to sell+ encumber or mortgage real estate. he validity of said order may not be attac'ed collaterally since the supposed ground for declaring it void for lac' of %urisdiction is not apparent on the face thereof. he deed e4ecuted by such e4ecutor+ administrator+ or cler' of court shall be effectual to convey the property as if e4ecuted by the deceased in his lifetime. he probate court has authority to determine whether conditions of a particular sale would be beneficial to the estate and this is generally respected. Rule ?8. and the court may order the e4ecution of such trust+ whether created by deed or by law. nor if the assets in the hands of the e4ecutor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend. Abe"a9i".6) cannot adversely affect the substantive rights of the heirs to dispose of their ideal share in the co-heirship andLor co-ownership among the heirs. Section 8. Acebe! /. De/el #9ent /". Lina %8>2. When the court ma* authori$e conve*ance of land %hich deceased held in trust. from the %udgment or one who is entitled to the avails of the suit.
Sec. 0y whom e4penses of partition paid. Ahen order for distribution of residue made. 1f there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law+ the controversy shall be heard and decided as in ordinary cases. 7. Fuestions as to advancement to be determined. 1. *o distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for+ unless the distributees+ or any of them+ give a bond+ in a sum to be fi4ed by the court+ conditioned for the payment of said obligations within such time as the court directs.2roperty to be Sold 2urpose $onditions business or other interests of those interested in the estate+ and testator has not otherwise made sufficient provision for such e4penses and debts (section 7) Sale+ mortgage+ encumbrance will be beneficial to interested persons 0eneficial to interested persons (H=) interested persons (H7) 2roperty to be Sold e4ecutionLforeclos ure 2urpose $onditions Part III. G 1f at the time of the distribution the e4ecutor or administrator has retained sufficient effects in his hands which may lawfully be applied for the e4penses of partition of the properties distributed+ such e4penses of 2ersonal or real property Real property 2ay debts and legatees in foreign countries Realty acDuired on Sale is not necessary to pay debts and e4penses within the 2hilippines but property in other country is not sufficient to pay debts and e4penses in that country (HJ) Same as foregoing sections (HI) !pplication of e4ecutor or administrator Aritten *otice to heirs+ devisees and legatees. and the final order of the court thereon shall be binding on the person raising the Duestions and on the heir. G Ahen the debts+ funeral charges+ and e4penses of administration+ the allowance to the widow+ and inheritance ta4+ if any+ chargeable to the estate in accordance with law+ have been paid+ the court+ on the application of the e4ecutor or administrator+ or of a person interested in the estate+ and after hearing upon notice+ shall assign the residue of the estate to the persons entitled to the same+ naming them and the proportions+ or parts+ to which each is entitled+ and such person may demand and recover their respective shares from the e4ecutor or administrator+ or any other person having the same in his possession.. (H=) Same as payment of debts and legacies (HJ) UP LAW BAROPS 2007 36 of 95 ONE UP LAW . Sec. Di"tributi n an! Partiti n f t4e E"tate f t4e E"tate Rule 18 Di"tributi n an! Partiti n Sec. G Fuestions as to advancement made+ or alleged to have been made+ by the deceased to any heir may be heard and determined by the court having %urisdiction of the estate proceedings. .
he e4ecutor is not reDuired to prepare and present the same+ but the court may reDuire him to do so. ! party claiming to be an ac'nowledged natural child of the testator is entitled to intervene in the proceedings for the probate of the will of the testator+ if still open+ or to as' for its reopening if it has already been closed+ so as to be able to submit for determination the Duestion of his ac'nowledgment as a natural child of the deceased testator+ the court having+ in its capacity as a probate court+ %urisdiction to declare who are the heirs of the testator and whether or not a particular party is or should be declared his ac'nowledged natural child.partition may be paid by such e4ecutor or administrator when it appears eDuitable to the court and not inconsistent with the intention of the testator. Juebrar6 >27 SCRA . Lantin6 %0. o )!a !e Albert /. ! probate proceeding is a proceeding in rem and a decision rendered therein with respect to estate of the decedent is binding on the whole world. o ! %udicial declaration that a certain person is the only heir of the decedent is e4clusively within the range of administration proceedings and cannot properly be made in an independent action o ! separate action for declaration of heirs is improper o !lthough the declaration of heirship is made only after the payment of all the charges against the estate+ the probate court is not en%oined from ma'ing the declaration prior to the satisfaction of the obligation o he rules allow the preliminary attachment of the interest of a party in the property belonging to the estate of the decedent by serving the e4ecutorLadministratorLpersonal representative of the decedent with a copy of the order and notice that the interest is attached (Rule J6. !pproval of the pro%ect of partition does not necessarily terminate the proceedings PCI= /. he only instance where a party interested in a probate proceeding may have a final liDuidation set aside is when he is left out by reason of circumstances beyond his control or through mista'e or inadvertence imputable to negligence. C+I6 Ne$r ". Na/arr %772. Lu: n Suret. he probate court does not lose %urisdiction over the estate until after the payment of all the debts and the delivery of the remaining estate to the heirs. otherwise+ they shall be paid by the parties in proportion to their respective shares or interest in the premises+ and the apportionment shall be settled and allowed by the court+ and+ if any person interested in the partition does not pay his proportion or share+ the court may issue an e4ecution in the name of the e4ecutor or administrator against the party not paying for the sum assessed.2. Nature f t4e Pr cee!in$.6f) o ! pro%ect of partition is merely a proposal for distribution of the hereditary estate which the court may either accept or re%ect. CA %012.2ayment of obligations (liDuidation of estate). E"c lin6 35 SCRA 255. )istribution of the estate may be ordered under any of the following circumstances: o 1nheritance ta4 has been paid+ or o Sufficient bond is given to meet the payment of the inheritance ta4 and other obligations+ or o Ahen the payment of said ta4 and all other obligations have been provided for o )eclaration of heirs o he probate court has %urisdiction to determine whether a person is an ac'nowledge natural child of the decedent+ but an adoption decree cannot be assailed in the settlement proceeding L (riarte /".8>. 2roceedings for the settlement of estate is deemed ready for final closure when o here should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law o Such order shall not be issued until it is shown that the Bdebts+ funeral charges+ and e4penses of administration+ the allowance to the widow+ and inheritance ta4+ if any+ chargeable to the estate o Erder is usually upon proper and specific application for the purpose of the interested parties Stages before distribution of the estate o )era /. 0etter practice to secure relief: reopening of the probate proceedings by UP LAW BAROPS 2007 37 of 95 ONE UP LAW . /.IN re9 PS= /.
R(LE 1> ESC@EATS Sec. Escheat is a proceeding whereby the real and personal property of a deceased person in the 2hilippines+ without leaving any will or legal heirs+ become property of the State upon his death 1t is an incident or attribute of sovereignty Rests on the principle of ultimate ownership by the state of all property within its %urisdiction ! substantial right of the state+ not charity or gratuity or unearned benefit !ny person alleging to a direct right or interest may oppose 1nterference of a co-eDual court with a probate court prohibited avoids confusion and conflict 1ssuance of writ of e4ecution o General Rule: $annot issue+ since administrator satisfies the court order ad%udicating claims without such writ o E*KR E4ceptions : o satisfy contributive share of heirs in possession of the decedent@s assets (R??.I) o o enforce payment of e4penses of partition (R8<. complaint for reconveyance (since proceeding is in rem+ all interested persons have constructive notice+ and %urisdiction of probate court is e4clusive) o *ondistribution of estate is not a ground for reopening must be motion for e4ecution or if beyond the reglementary period+ separate action for recovery of shares is proper Sec. 1. ! depositary ban' should be %oined as respondent ( !ct . proper petitions must be filed Sec. Kaw on 3orfeiture of )ormant 0an' )eposits) (urisdiction in proceedings in escheat cannot be converted into settlement of the estate. 6 Ahen a person dies intestate+ sei#ed of real or personal property in the 2hilippines+ leaving no heir or person by law entitled to the same+ the Solicitor General or his representative in behalf of the Republic of the 2hilippines+ may file a petition in the $ourt of 3irst 1nstance of the province where the deceased last resided or in which he had estate+ if he resided out of the 2hilippines+ setting forth the facts+ and praying that the estate of the deceased be declared escheated. C5# !llowed continuation of separate action to annul pro%ect of partition 5oved for partial delivery of lots in her favor pursuant to pro%ect of partition Estate proceedings closed and terminated for over three years Solivio v. Ahere the court has validly issued a decree of distribution and the same has become final+ the validity or invalidity of the pro%ect of partition becomes irrelevant.<-day reglementary period + then appeal from the order of denial not independent action e. =arret CDatu %572. !ecording the order of partition of estate.. 6 $ertified copies of final orders and %udgments 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. =. (R1=7. CA )isallowed separate action 3iled separate actions+ instead of filing a motion in same case 2roceedings were still pending Re#ublic /.) o o satisfy costs when a person is cited for e4amination in probate proceedings.e" /. /rder for hearing.I+ Section . 6 1f the petition is sufficient in form and substance+ the court+ by an order reciting the purpose of the petition+ shall fi4 a date and place for the hearing thereof+ which date shall be not more than si4 (I) months after the entry of the order+ and shall direct that a copy of the order be published before the hearing at least once a wee' for si4 (I) successive wee's in some newspaper of general circulation published in the UP LAW BAROPS 2007 38 of 95 ONE UP LAW . When and b* %hom petition filed. CA %002. 7.8.) C 9#ari" n f Buri"#ru!ence 4uilas v.g.1. o 5ay be set aside only if interested party is left out by reason of circumstances beyond his control or mista'e or inadvertence not imputable to negligence o Remedies : motion to reopen within the .proper motion within the reglementary period instead of a separate action o Re.
but a claim not made within said time shall be forever barred. right e4isted prior to registration proceedings+ and such right not asserted in said proceedings Sec. Ether actions for escheat. . 125.g. (udgement of escheat conclusive upon all persons notified by advertisement Kac' of dishonest intent on the part of the State to constitutes due process+ proper notice having been observed Di/in /. "owever+ there is no procedural reason which prevents 5 ) upon any grounds for dismissal of a complaint e. PART I).province+ as the court shall deem best. G(ARDIANS@IP GENERAL PRINCIPLES Definiti n" o 0urden of proof rests on State to prove the property is liable in all respects to escheat prove decedent died: 1st+ intestate. General rule : 5 ) not allowed by RE$ on escheat R 9an Cat4 lic Arc4bi"4 # /. Hearing and judgment.. Re#ublic /. when petition does not state facts which entitle the State to escheat+ or there is no ground for the court to proceed Munici#al C uncil f San Pe!r /. >. 1f the deceased never resided in the 2hilippines+ the whole estate may be assigned to the respective municipalities or cities where the same is located. Right to escheat may be waived+ e4pressly or impliedly e. M nte !e Pie!a!6 50 P4il. . J. Such estate shall be for the benefit of public schools+ and public charitable institutions and centers in said municipalities or cities. f Guian$a6 52 P4il. 5 ) plays the role of a demurrer+ enabling the court to resolve the legal Duestions raised therein Sec. *oncompliance with %urisdictional reDuirements render a court without %urisdiction to grant a remedy enabling an heir to appear from the date the decree of escheat and file a claim to the estate Sec. When and b* %hom claim to estate filed. 1t is a relation subsisting between the guardian and the ward. G >ntil otherwise provided by law+ actions for reversion or escheat of properties alienated in violation of the $onstitution or of any statute shall be governed by this rule+ e4cept that the action shall be instituted in the province where the land lies in whole or in part. and shall+ pursuant to law+ assign the personal estate to the municipality or city where he last resided in the 2hilippines+ and the real estate to the municipalities or cities+ respectively+ in which the same is situated. 1nvolves the ta'ing possession of and management of+ the estate of another unable to act for himself UP LAW BAROPS 2007 39 of 95 ONE UP LAW . =. 6 1f a devisee+ legatee+ heir+ widow+ widower or other person entitled to such estate appears and files a claim thereto with the court within five (J) years from the date of such %udgment+ such person shall have possession of and title to the same+ or if sold+ the municipality or city shall be accountable to him for the proceeds+ after deducting reasonable charges for the care of the estate. 7nd+without heirs. PN=6 %5>2.g. he court+ at the instance of an interested party+ or on its own motion+ may order the establishment of a permanent trust+ so that only the income from the property shall be used.rd+ sei#ed of the property in Duestion. 6 >pon the satisfactory proof in open court on the date fi4ed in the order that such order has been published as directed and that the person died intestate+ sei#ed of real or personal property in the 2hilippines+ leaving no heir or person entitled to the same+ and no sufficient cause being shown to the contrary+ the court shall ad%udge that the estate of the deceased in the 2hilippines+ after the payment of %ust debts and charges+ shall escheat. C le$i !e San ' "e. o o Guar!ian"4i# may be viewed either as a power or a relation 1t is power of protective authority given by law and imposed on an individual who is free and in the en%oyment of his rights+ over one whose wea'ness on account of his age or other infirmity+ renders him unable to protect himself. Munici#alit.
/. *ery vs. f $uar!ian"4i# #r cee!in$" G r "tia$a /. Koren#o . his is because the powers of a guardian may be e4ercised only in the state under whose laws they were conferred. Pur# "e f Guar!ian"4i# to safeguard the right and interests of minors and incompetent persons Min!" f Guar!ian" according to scopeLe4tent o guardian over the person o Guardian of the property o General Guardians G custody and care of the person and of all the property of the ward !ccording to constitution o Kegal G those deemed as guardian without need of court appointment (see !rt 77J) o Guardian ad litem G appointed by the courts of %ustice to prosecute or defend a minor+ insane or person declared to be incompetent+ in an action in court. Ahile custody involves immediate care and control+ guardianship includes responsibilities of loco parentis as well. E4ploitation and other conditions pre%udicial to their development.person entrusted with the custody and control of the person andLor estate of a minor+ insane or other person incapable of managing his own affairs Nature f Guar!ian"4i# Sacred in character. Section 1.Paren" Patriae6 %Ner. Ahen the minorLincompetent is a non-resident+ the petition for guardianship may be filed in the R $ of the place where the property of the minorLincompetent is situated. Section 7. Nece""it. ? provides that every child has the right to be protection against e4ploitation+ improper influences+ ha#ards+ and other conditions of circumstances pre%udicial to his physical+ mental+ emotional+ moral and social development. L ren: 6 %7222 )uty of the state to protect the rights of personsLindividuals who because of ageLincapacity are in an unfavorable position vis-S-vis other parties. 91n the $ity of 5anila+ the proceedings shall be instituted in the (uvenile and )omestic Relations $ourt.where minors are involved+ the state acts as parens patriae. Residence O domicile >nder the 3amily $ourts !ct (R! ?. 1t is designed to further the ward@s well-being and to preserve his property. : he venue of guardianship proceedings is primarily the place of residence of the minorL incompetent in the 2hilippines.+ 2ar. =a"i" f r t4e "e#arate rule FAG +OR TEKTO n Guar!ian"4i# f Min r" N "ee APPENDIK • • • • persons suffering the penalty of civil interdiction or who are hospitali#ed lepers+ prodigals+ deaf and dumb who are unable to read and write+ those who are of unsound mind+ even though they have lucid intervals+ and persons not being of unsound mind+ but by reason of age+ disease+ UP LAW BAROPS 2007 40 of 95 ONE UP LAW .I8)+ the 3amily courts is vested with e4clusive original %urisdiction over petitions for guardianship+ custody of children+ and habeas corpus in relation to the latter. =a"i" f Guar!ian"4i#. provided+ however+ that where the value of the property of such minor or incompetent e4ceeds the %urisdiction of the %ustice of the peace or municipal court+ the proceedings shall be instituted in the $ourt of 3irst 1nstance. 2arens patriae is inherent in the supreme power of the state his is a most beneficent function and often necessary to be e4ercised in the interest of humanity and for the prevention of in%ury to those who cannot protect themselves. o (udicial G appointed by the court in pursuance to law+ as guardian for insane persons+ prodigals+ minor heirs or deceased war veterans and other incompetent persons.Guar!ian. Where to institute proceedings.7 6 >nder this rule+ the word 7incompetent7 includes R(LE 12 )EN(E 1n view of the Rule on Guardianship of 5inors+ the following rules should be limited in application to the Guardianship of incompetents. !rt T&+§J G state has a duty to defend the right of children to assistance+ proper care and nutrition+ and special protection from all forms of neglect+ abuse+ cruelty. 2) I<. )eaning of %ord 7incompetent.(urisdiction over the person of an incompetent cannot be had unless a guardian was appointed upon whom summons and notice of the proceedings may be served. Sarte6 50 P4il ?. 6 Guardianship of the person or estate of 9a minor: or incompetent may be instituted in the $ourt of 3irst 1nstance of the province+ or in the %ustice of the peace court of the municipality+ or in the municipal court of the chartered city where the minor or incompetent person resides+ and if he resides in a foreign country+ in the $ourt of 3irst 1nstance of the province wherein his property or part thereof is situated.+ !rt .
(. 222. he right of the parents over the fruits and income of the child. general guardian for the person or estate+ or both+ of such minor or incompetent. !n officer of the 3ederal !dministration of the >nited States in the 2hilippines may also file a petition in favor of a ward thereof+ and the )irector of "ealth+ in favor of an insane person who should be hospitali#ed+ or in favor of an isolated leper.. 22. Martine:6 > P4il >022.s support and education+ unless the title or transfer provides otherwise. Section . he child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger+ unless the owner+ grants the entire proceeds to the child.s legitime. "owever+ where the Duestion of insanity is put in issue in guardianship proceedings+ and a guardian is named for the person alleged to be incapacitated+ a presumption of mental infirmity of the ward is created. G Every adult is presumed sane. he property of the unemancipated child earned or acDuired with his wor' or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted e4clusively to the latter. he parents or+ in their absence or incapacity+ the individual+ entity or institution e4ercising parental authority+ may petition the proper court of the place where the child resides+ for an order providing for disciplinary measures over the child. Art. (. he child shall be entitled to the assistance of counsel+ either of his choice or appointed by the court+ and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. 1n any case+ the proceeds thus give in whole or in part shall not be charged to the child. he parent e4ercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Who ma* petition for appointment of guardian for resident.2. 227. Li9itati n" n t4e Tran"fer f )enue. . Pr /i"i n" f t4e +a9il.s support and secondarily to the collective daily needs of the family..71a+ .16) Art. >0.ransfer of venue. Pr !i$alit.s property shall be limited primarily to the child.wea' mind+ and other similar causes+ cannot+ without outside aid+ ta'e care of themselves and manage their property+ becoming thereby an easy prey for deceit and e4ploitation.he court may impose as a condition to the change of venue that a settlement of estate be made in the court which granted the letters of guardianship.s property or a guardian ad litem when the best interests of the child so reDuires.1?a) Art. he measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children. Pur# "e f Aut4 ri:in$ C4an$e f )enueo afford convenience to the ward. 1f the parents entrust the management or administration of any of their properties to an unemancipated child+ the net proceeds of such property shall belong to the owner. A =ranc4 f t4e Sa9e C urt Cann t be Per9itte! t A""ert it" 'uri"!icti n in Di"re$ar! f t4e Or!er" f An t4er =ranc4 R(LE 1.77a) In"anit. 6 !ny relative+ friend+ or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian+ or the minor himself if fourteen years of age or over+ may petition the court having %urisdiction for the appointment of a UP LAW BAROPS 2007 41 of 95 ONE UP LAW . GENERAL G(ARDIANS APPOINTMENT O+ G(ARDIANS AND G(ARDIANS@IP- Section 1. he courts may appoint a guardian of the child. 225. >pon proper petition or at its own instance+ the court may terminate the commitment of the child whenever %ust and proper. o Juantu9 f e/i!ence O competent evidence demonstrating necessary facts and the evidence must be clear and definite%Yan$c /.a) Art. G synonymous with spendthrift or a person who by e4cessive drin'ing+ gaming+ idleness or debauchery of any 'ind shall so spend+ waste or lessen his estate as to e4pose himself or his family to want or suffering or e4pose the town to charge or e4pense for the support of himself or his family. "owever+ if in the same proceeding the court finds the petitioner at fault+ irrespective of the merits of the petition+ or when the circumstances so warrant+ the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem %ust and proper. C+I6 21 P4il. 6 he court ta'ing cogni#ance of a guardianship proceeding+ may transfer the same to the court of another province or municipality wherein the ward has acDuired real property+ if he has transferred thereto his bona-fide residence+ and the latter court shall have full %urisdiction to continue the proceedings+ without reDuiring payment of additional court fees. Ci/il Inter!icti n G deprives the offender of his rights of parental authority+ guardianship+ marital authority+ the right to manage his property and to dispose of it by any act inter vivos.s homes duly accredited by the proper government agency. the prodigal must show a morbid mind and a disposition to waste the estate %Martine: /. such change is therefore within the e4clusive discretion of the court. C !e n Guar!ian" Art. (. 22?.7. (.
f )erificati n *o particular form is prescribed. (c) he names+ ages+ and residences of the relatives of the minor or incompetent+ and of the persons having him in their care. Section =. C rrecti n f a Min r<" Na9e may be made by motion. 'uri"!icti nal +act" N tice f a##licati n an! 4earin$ shall be served by the court on (1) the persons mentioned in the petition residing in the 2hilippines and (7) the minor himself if above 1=L the incompetent himself. but no defect in the petition or verification shall render void the issuance of letters of guardianship. (oint parental authority is e4ercised by the father and the mother. he petition shall be verified. Section . Ahile allegations as to the names+ ages and residences of a minor@s relatives is %urisdictional+ the same may not be necessary where the petition was filed by the minor@s relatives themselves. (e) he name of the person for whom letters of guardianship are prayed. Section 7. FAG Sufficienc. P nce /. Court to set time for hearing8 Notice thereof. (!rt 18+ R! 87I7) !rt.Law n Parental Aut4 rit. 6 !ny interested person may+ by filing a written opposition+ contest the petition on the ground of ma%ority of the alleged minor+ competency of the alleged a. De =alu. (d) he probable value and character of his estate. Contents of petition. 0ut if a person is incompetent to act as e4ecutor or administrator+ then he is not the incompetent person envisaged in the law of guardianship. %L #e: )!a. 1t has been held that lac' of notice renders the appointment of a guardian void and sub%ect to collateral attac'. Ine"CLucian %7522 Gr un!" f #etiti n in ca"e f a 9in r %"ee A##en!i. P nce %332. it is sufficient if the petition is dated+ signed and sworn to and duly certified in a manner similar to the practice formerly prevailing in the case of sworn bills and answers. 6 Ahen a petition for the appointment of a general guardian is filed+ the court shall fi4 a time and place for hearing the same+ and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province+ including the minor if above 1= years of age or the incompetent himself+ and may direct other general or special notice thereof to be given. his domicile he actual e4istence of a ward is a %urisdictional fact. 1n case of disagreement+ the father@s decision shall prevail. A Defect in t4e Petiti n + under the 3$ and the Ro$+ does not render the issuance of letters of guardianship void. ! person who is of full age and sui %uris cannot be placed under guardianship+ either of another person or of the court+ nor can he ma'e himself a ward of the court. E4en Certain 'uri"!icti nal +act" 9a. >nder the rules on guardianship of minors+ the phrase Bwithin the =th civil degreeC was inserted in §6e to put a limit to the number of relatives who shall be notified. t /".77J+ 3$ does not ma'e a distinction as to the amount of the minor@s property when it stated that the father and mother shall be the legal guardian of the property of their unemancipated children without need of court appointment o 0ut+ if the mar'et value of the property or annual income U 2J<V+ the parent concerned shall post a bond with the court to guarantee the performance of hisLher obligation (incorporated in §1I) f Guar!ian / Inc 9#etence f Per" n (n!er b. be Di"#en"e! Eit4 (. Inc 9#etence Guar!ian"4i# ! person who is incompetent to act as an e4ecutorLadministrator does not necessarily need to be placed under guardianship. Grandparents shall be consulted on important matters but they shall not interfere in the e4ercise of parental authority by the parents (!rt. /pposition to petition. (b) he minority or incompetency rendering the appointment necessary or convenient. N tice a" a 'uri"!icti nal Re7uire9ent *otice is normally essential in order to confer %urisdiction on the court where a petition for guardianship is filed+ over the person of the minorLincompetent.. 1?+ R! 87I7) 1n the absence or death of parents+ the grandparents+ and in their default+ the oldest sibling who is at least 1? years old or the relative who has actual custody shall e4ercise parental authority unless a guardian has been appointed. minorityLincompetency of person to be placed under guardianship (see !ppendi4 ! for minority) UP LAW BAROPS 2007 42 of 95 ONE UP LAW . 6 ! petition for the appointment of a general guardian must show+ so far as 'nown to the petitioner: (a) he %urisdictional facts.
S tel 6 7? P4il. 6 Ahen a person liable to be put under guardianship resides without the 2hilippines but has estate therein+ any relative or friend of such person+ or any one interested in his estate+ in e4pectancy or otherwise+ may petition a court having %urisdiction for the appointment of a guardian for the estate+ and if+ after notice given to such person and in such manner as the court deems proper+ by publication or otherwise+ and hearing+ the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient+ it may f letter" !urin$ #en!enc. 23. +inalit. hereupon the court shall hear the evidence of the parties in support of their respective allegations+ and+ if the person in Duestion is a minor+ or incompetent it shall appoint a suitable guardian of his person or estate+ or both+ with the powers and duties hereinafter specified. !s the primary ob%ective for appointment of a guardian is protection of the ward+ e4ecution pending appeal for urgent and compelling reasons is a matter within the sound UP LAW BAROPS 2007 43 of 95 ONE UP LAW . Grounds: a. 6 !t the hearing of the petition the alleged incompetent must be present if able to attend+ and it must be shown that the reDuired notice has been given. Section J. ma%ority of alleged minor b.< days from the due date. CA6 %0?22 he court may consider the financial situation+ the physical condition and sound %udgment+ prudence and trustworthiness+ the morals+ character and conduct+ and the present and past history of a prospective appointee as well as the probability of his being able to e4ercise the powers and duties of a guardian for the full period during which guardianship will be necessary. C n"i!erati n" in t4e a## int9ent f a $uar!ian %+ranci"c /. When and ho% guardian for nonresident appointed8 Notice. At w4at "ta$e f t4e #r cee!in$" an ## "iti n 9a. Hearing and order for letters to issue. *o man can serve two masters. Garc4it rena /.incompetent+ or the unsuitability of the person for whom letters are prayed+ and may pray that the petition be dismissed+ or that letters of guardianship issue to himself+ or to any suitable person named in the opposition. 1f the interested person is a creditor and mortgagee of the estate of the minor+ he cannot be appointed guardian of the person and property of the latter. %+ranci"c /. Aith respect to minors+ the grounds stated in this section is not e4haustive since guardianship may also be opposed on the ground of non-termination of the parental authority of the parents of the minor. Juantu9 f e/i!ence re7uire! f r i""uance f letter" $ompetent evidence which is clear and definite+ demonstrating the facts necessary to sustain the order C ntent" f t4e r!er he order issuing letters of guardianship must be sufficient in form and substance and statutory reDuirements as to contents must e complied with. Or!er f #reference in a## int9ent f $uar!ian B!mong othersC is added to §1< of the Rules on guardianship of minors in order not to limit the grounds for filing an opposition to a petition for guardianship to those enumerated. "owever+ a creditor and mortgagee may not be appointed a minor@s guardian as no man can serve two masters. Aho may file: !ny person interested in the personLproperty of the ward. he order must identify the ward+ but the ward need not be named if he is otherwise sufficiently identified. CA6 %0?22. I""uance I""uance f letter" !i"creti nar. ! guardian may be removed if he becomes insane+ or otherwise incapable or unsuitable+ or has wasted the estate or failed to ma'e return or render an account . be file! hough dismissal of an opposition is appealable+ opposition must first be addressed and resolved by the lower court and not for the first time on appeal. competency of alleged incompetent c. f t4e a## int9ent he e4ecution of the final %udgment or order shall issue as a matter of right only upon the e4piration of the period to appeal therefrom if no appeal has been duly perfected. n t4e court f an a##eal he Rules on guardianship do not contain any order or preference in the appointment of guardians+ not li'e the matter of who will be administrator for the settlement or distribution of the estate. Section I. discretion of the $ and the appellate court will not interfere unless there has been grave abuse. incompetency of person for whom letters are prayed he oppositor may pray for dismissal of petition or that letters be issued to him or another suitable person. Gr un!" f r filin$ an ## "iti n Epposition must be in writing but need not be verified. he best interests of a ward can override procedural rules and even the rights of parents to the custody of their children.
t2 f t4e +a9il. 0arents as guardians. 2ersonal service is also necessary when alleged incompetent is a resident who is temporarily abroad. 1n case of disagreement+ the father. %' 4anne" /. (. ! parent does not have the power to dispose of or encumber the property of his child. Enly a %udicial guardian may dispose of his ward@s property and only with prior court approval. Section 6. 6 Ahen the property of the child under parental authority is worth two thousand pesos or less+ the father or the mother+ without the necessity of court appointment+ shall be his legal guardian. (. he father and the mother shall %ointly e4ercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment.6 ?. he petition shall be doc'eted as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this !rticle shall be heard and resolved. !ny disposition made by the parent is null and void. he ordinary rules on guardianship shall be merely suppletory e4cept when the child is under substitute parental authority+ or the guardian is a stranger+ or a parent has remarried+ in which case the ordinary rules on guardianship shall apply. Ancillar. FAG f r t4e te. (=) o furnish them with good and wholesome educational materials+ supervise their activities+ recreation and association with others+ protect them from bad company+ and prevent them from acDuiring habits detrimental to their health+ studies and morals. P4il >732 'uri"!icti n f t4e c urt /er n nCre"i!ent" ! court of a state in which an incompetent has property may appoint a guardian to ward@s estate. %urisdiction may be acDuired through publication.) o provide them with moral and spiritual guidance+ inculcate in them honesty+ integrity+ self-discipline+ self-reliance+ industry and thrift+ stimulate their interest in civic affairs+ and inspire in them compliance with the duties of citi#enship.7<a) Art. 228. @ar/e. t4e R(LE ON G(ARDIANS@IP O+ MINORS %See A##en!i. he Rules on guardianship of minors will apply when o $hild is under substitute parental authority o Guardian is a stranger+ or a parent who has remarried. Preference in a## int9ent of a guardian will ordinarily given+ on the principles of comity+ to a person already clothed with the authority of guardian in the ward@s own country. 1n such a case+ publication alone is insufficient.s decision shall prevail+ unless there is a %udicial order to the contrary. UP LAW BAROPS 2007 44 of 95 ONE UP LAW .1Ia) Natural $uar!ian cann t !i"# "e f t4e #r #ert. f t4e c4il! T4i" #r /i"i n 4a" been !ee9e! 9 !ifie! b. 2roceeding to declare a person insane is in personam+ therefore personal service is necessary. Ahere the mar'et value of the property or the annual income of the child e4ceeds 2J<+<<<+ the parent concerned shall be reDuired to furnish a bond in such amount as the court may determine+ but not less than ten per centum (1<P) of the value of the property or annual income+ to guarantee the performance of the obligations prescribed for general guardians. he parents and those e4ercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: (1) o 'eep them in their company+ to support+ educate and instruct them by right precept and good e4ample+ and to provide for their upbringing in 'eeping with their means. ! verified petition for approval of the bond shall be filed in the proper court of the place where the child resides+ or+ if the child resides in a foreign country+ in the proper court of the place where the property or any part thereof is situated.appoint a guardian for such estate. (7) o give them love and affection+ advice and counsel+ companionship and understanding.s property+ with the duties and obligations of guardians under these rules+ and shall file the petition reDuired by section 7 thereof. and (?) o perform such other duties as are imposed by law upon parents and guardians. (J) o represent them in all matters affecting their interests. he new rule on the guardianship of minors will be suppletory to the 3$ on guardianship if the father and mother %ointly e4ercise legal guardianship over the property of their unemancipated common child. 223. (. C !e Pr /i"i n" Art. Ahen the property of the child is worth more than two thousand pesos+ the father or the mother shall be considered guardian of the child. 3or good reasons the court may+ however+ appoint another suitable person. (I) o demand from them respect and obedience. $uar!ian"4i# means a guardianship in a state other than that in which guardianship is originally granted and which is subservient and subsidiary to the later. (6) o impose discipline on them as may be reDuired under the circumstances.
Re9e!. a$ain"t a $uar!ian w4
f t4e #r #ert.
R(LE 1? =ONDS O+ G(ARDIANS
SE$ 1E* 1. 1ond to be given before issuance of letters. Amount. Conditions.W 0efore a guardian appointed enters upon the e4ecution of his trust+ or letters of guardianship issue+ he shall give a bond+ in such sum as the court directs+ conditioned as follows: (a) o ma'e and return to the court+ within three (,) months+ a true and complete inventory of all the estate+ real and personal+ of his ward which shall come to his possession or 'nowledge or to the possession or 'nowledge of any other person for him. (b) o faithfully e4ecute the duties of his trust+ to manage and dispose of the estate according to these rules for the best interests of the ward+ and to provide for the proper care+ custody+ and education of the ward. (c) o render a true and %ust account of all the estate of the ward in his hands+ and of all proceeds or interest derived therefrom+ and of the management and disposition of the same+ at the time designated by these rules and such other times as the court directs+ and at the e4piration of his trust to settle his accounts with the court and deliver and pay over all the estate+ effects+ and moneys remaining in his hands+ or due from him on such settlement+ to the person lawfully entitled thereto. (d) o perform all orders of the court by him to be performed. =OND
&endees pre%udiced by the illegal transactions of a natural guardian involving the property of a minor have no cause of action against subseDuent legal owners+ only against a natural guardian but only to recover damages %)alencia /. La$!a9e 2 Jualificati n" f Guar!ian" f 9in r"
he RE$ does not have a provision on the Dualifications which the court may consider in appointing a guardian. he Rules on guardianship of minors contain a provision stating the Dualifications of guardians (§J). hese were ta'en mainly from 3rancisco vs. $!. o 3inancial condition (c)
o o o o o o
2hysical condition (b) Sound %udgment+ prudence and trustworthiness (g) 5orals (a) $haracter and conduct (b) 2resent and pass history of the prospective appointee 2robability of his being able to e4ercise the powers and duties of the guardian
he committee added: relationship of trust with the minor+ and his lac' of conflict of interest with the minor.
Section ?. Service of judgment. 6 3inal orders or %udgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated. !rticle =<8 ($$): 1n cases of legal separation+ adoption+ naturali#ation and other %udicial orders mentioned in the preceding article+ it shall be the duty of the $ler' of $ourt who issued the decree to ascertain whether the same has been registered and if this has not been done+ to send a copy of the said decree to the civil registry of the city or municipality where the court is functioning.
Pur# "e a. o protect the property of the minor to the end that he may be assured of an honest administration of his funds during his minority. b. o serve as security to those interested in the property settlement of the estate. Nece""it. G a guardian cannot ta'e possession of and control the property of his ward unless he has given the bond for the faithful performance of his duties. A9 unt & fi4ed by the court with reference to the ward@s estate E4en b n! taAe" effect - as of the day of its date and of his appointment and not when the bond was filed
>nder the rules on guardianship of minors+ the register of deeds of the place where the property is located should be served with a copy of the %udgment appointing a guardian of a minor. (§1,) he annotation of the %udgmentLorder on the title will serve as a notice to third persons dealing with the property of the e4istence of the guardianship and the limited authority of the guardian.
SE$. 7. When ne% bond ma* be re.uired and old sureties discharged. Ahenever it is deemed necessary+ the court may reDuire a new bond to be given by the guardian+ and may discharge the sureties on the old bond from further liability+ after due notice to interested persons+ when no in%ury can result therefrom to those interested in the estate. A!!iti nal = n!
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Re7uire! & when first bond was insufficient+ it is the duty of the court to reDuire additional bond.
he grounds enumerated in this section are e4clusive. *o order will be issued for another purpose not found in this rule. Sale of the ward@s realty without court order is / i!. %Int n /. Juintana6 0> P4il 172
SE$. ,. 1onds to be filed. Actions thereon. Every bond given by a guardian shall be filed in the office of the cler' of the court+ and+ in case of the breach of a condition thereof+ may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate. 0onds will be construed and enforced in accordance with the intention and scope of the guardian and his surety in giving it+ to secure the wards in their individual rights. Suretie"
SE$. 7. /rder to sho% cause thereupon. 1f it seems probable that such sale or encumbrance is necessary+ or would be beneficial to the ward+ the court shall ma'e an order directing the ne4t of 'in of the ward+ and all persons interested in the estate+ to appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted.
Liabilit. f t4e "uretie" must depend upon the e4tent of the obligation created by the terms of the bond and the statutes which can be read into it. !urati n f liabilit. is a continuing one against the obligors and their estates until all of its conditions are fulfilled. %Guerrer /. Teran6 >, P4il. 2>22 Ahen %udgment is entered against the sureties+ they may demand the benefit of a levy of the principal@s property+ the amount of which must be sufficient to satisfy the debt. It i" t4e !ut. f t4e "uretie" to see that the conditions on the guardian@s bond are fulfilled by the guardian.
Ne;t f Ain & include those relatives who share in the estate according to the statute of distribution+ including those claiming per stripes or by representation. %Iabate /. P nce6 17 P4il >8852 o L #e /. Te ! r . Enly the children have an interest in the land of their father+ besides the creditors+ and only they or the creditor who may have been pre%udiced by the sale have a right to ob%ect thereto. *otice may not be dispensed with e4cept where the ne4t of 'in and all persons interested in the estate are her mother and guardian+ uncles and aunts who agreed to ma'e the transfer of their respective shares in the property to the corporation to be organi#ed. %Sin$c /. L n$a6 3> P4il 387* Par! !e Ta/era /. El @ $ar +ili#in Inc.6 10 P4il ?0>2
SE$. ,. Hearing on return of order. Costs. !t the time and place designated in the order to show cause+ the court shall hear the proofs and allegations of the petitioner and ne4t of 'in+ and other persons interested+ together with their witnesses+ and grant or refuse the prayer of the petition as the best interests of the ward reDuire. he court shall ma'e such order as to costs of the hearing as may be %ust.
R(LE 13 SELLING AND ENC(M=ERING PROPERTY O+ EARD
SE$ 1E* 1. 0etition of guardian for leave to sell or encumber estate. Ahen the income of an estate under guardianship is insufficient to maintain the ward and his family+ or 9to maintain and educate the ward when a minor:/+ or when it appears that it is for the benefit of the ward that is real estate or some part thereof be sold+ or mortgaged or otherwise encumbered+ and the proceeds thereof put out at interest+ or invested in some productive security+ or in the improvement or security of other real estate of the ward+ the guardian may present a verified petition to the court by which he was appointed setting forth such facts+ and praying that an order issue authori#ing the sale or encumbrance. / modified by Rule on Guardianship of 5inors A $uar!ian 9a. "ell r encu9ber t4e e"tate f t4e war! w4ena. the income of an estate under guardianship is insufficient to maintain the ward and his family b. it appears that it is for the benefit of the ward that is real estate or some part thereof be sold+ or mortgaged or otherwise encumbered+ and the proceeds thereof put out at interest+ or invested in some productive security+ or in the improvement or security of other real estate of the ward
E4et4er it i" t t4e intere"t f t4e war! t4at t4e "ale "4all be 9a!e G the sole ob%ect of the inDuiry in an a##licati n to sell he court should ascertain and determine whether grounds for selling e4ist and should select the part or parts of the property which can be disposed of.
SE$. =. Contents of order for sale or encumbrance& and ho% long effective. 1ond. 1f+ after full e4amination+ it appears that it is necessary+ or would be beneficial to the ward+ to sell or encumber the estate+ or some portion of it+ the court shall order such sale or encumbrance and that the proceeds thereof be e4pended for the maintenance of the ward and his family+ or the education of the ward+ if a minor+ or for the putting of the same out at interest+ or the investment of the
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same as the circumstances may reDuire. he order shall specify the causes why the sale. or encumbrance is necessary or beneficial+ and may direct that estate ordered sold be disposed of at either public or private sale+ sub%ect to such conditions as to the time and manner of payment+ and security where a part of the payment is deferred+ as in the discretion of the court are deemed most beneficial to the ward. he original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale+ but the %udge may+ if deemed e4pedient+ reDuire an additional bond as a condition for the granting of the order of sale. *o order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same+ without a sale being had.
Eit4 t4e enact9ent f t4e +a9il. c !e6 the property of the minor is no longer liable for the maintenance of the 3amily. >nder !rt 77I+ the property of the child is to be devoted e4clusively for his support and education+ unless the title or transfer provides otherwise. he rights of the parents to the fruits and income of the child@s property shall be limited primarily to the child@s support and secondarily to the collective daily needs of the family.
3$ has effectively abolished parental usufruct over the child@s property and income (§77) SE$. J. Court ma* order investment of proceeds and direct management of estate. he court may authori#e and reDuire the guardian to invest the proceeds of sales or encumbrances+ and any other of his ward;s money in his hands+ in real estate or otherwise+ as shall be for the best interest of all concerned+ and may ma'e such other orders for the management+ investment+ and disposition of the estate and effects+ as circumstances may reDuire.
3or the ward@s title to pass to the purchaser+ the sale must first be confirmed by the court. >ntil such confirmation+ not even eDuitable title passes to the purchaser. o - e4cept: authority to sell does not impose the necessity of confirmation by the court. Grant of authority to sell is within the discretion of the court+ should it eventually find such sale unnecessary+ it may refuse to confirm the sale or encumbrance. C nfir9ati n 9a. n t be nece""ar. where the court@s order e4pressly authori#ed the guardian to e4ecute and deliver to the purchaser definitely named+ a deed of conveyance to a parcel of land specifically described at a price already fi4ed and it was intended to be the approval itself of the sale that was already perfected or agreed upon by the seller and the buyers+ needing only a %udicial go-ahead signal to reduce the agreement to the statutory form. T4e $uar!ian cann t ac7uire b. #urc4a"e even at a public or %udicial auction+ the property of his ward. (!rt. 1=81 $$) Ahen authority to sell was obtained under suspicious circumstances indicative of fraud and collusion+ the guardian@s sale may subseDuently be annulled by the court. %Men! :a /. Labra! r6 51 P4il ,102 G "owever+ the cancellation of the guardian@s authority to sell will not and could not affect the rights of the buyer in such a case. %Mar$ate /. Rabacal2 Sale of a ward@s estate cannot be attac'ed collaterally in the registration proceedings. ! separate action to avoid or rescind the sale should be filed instead. he guardian@s authority to sell shall be not be effective for more than one year after it has been granted. L #e: /. Te ! r %382. A##eal is the proper remedy against an order of the court authori#ing the sale of the ward@s property.
his section+ while reDuiring %udicial authority in order that a guardian may invest the ward@s money+ does not provide that said authority must always be either #ri r t r e;#re""e!. P4ili##ine Tru"t C . /. =alle"ter "6 10 P4il >887. his rule see's to protect the funds of the ward against imprudent or unsafe investments by the guardian. 1t is the guardian@s duty to apply the proceeds to the purposes for which the land was sold. Ste$ner H P4ili##ine Tru"t C . /. Ste$ner6 >82 P4il >,>. he court@s approval of the annual inventories and accounts submitted by the guardian+ with the conformity andLor acDuiescence of the mother of the minors+ wherein the Duestioned investment was mentioned and accounted for amounts to a ratification of the acts of the guardian and compliance with the provisions of this rule.
R(LE 15 GENERAL POEERS AND D(TIES O+ G(ARDIANS
Sec. 1. o what guardianship shall e4tend. ! guardian appointed shall have the care and custody of the person of his ward+ and the management of his estate+ or the management of the estate only+ as the case may be. he guardian of the estate of a nonresident shall have the management of all the estate of the ward within the 2hilippines+ and no court other than that in which such guardian was appointed shall have %urisdiction over the guardianship. NOTES AND CASES: E;tent f Guar!ian"4i#
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A!9ini"trat r f )eteran Affair" %372. Guardian to settle accounts+ collect debts+ and appear in actions for ward. f t4e Guar!ian f r +ailure t C llect UP LAW BAROPS 2007 48 of 95 ONE UP LAW . 7. wit4 ut c urt a##r /al +ernan!e: /. NOTES AND CASES: P wer f t4e Guar!ian t recei/e 9 ne. it is sub%ect to control by the court he controlling consideration in the matter of custody as in the matter of selecting the guardian+ is the best interest of the child Su## rt an! Cu"t !. Ene who has been appointed a G!K by the court for minor heirs is not acting in the capacity of a negotiorum gestor and must have some e4press authority from the person he purports to represent Sec.homas) Ri$4t t Cu"t !. NOTES AND CASESPr 4ibiti n n TaAin$ Ear!<" Pr #ert.. Every guardian must pay the ward. . ! guardian must settle all accounts of his ward+ and demand+ sue for+ and receive all debts due him+ or may+ with the approval of the court+ compound for the same and give discharges to the debtor+ on receiving a fair and %ust dividend of the estate and effects. 2roperty and effects of the ward are under the control of the court and may not be ta'en or e4pended without the latter@s permission Lawful P ""e""i n f t4e Ear!<" E"tate )il ria /. =ell %582. f t4e Ear! Right of guardian to the custody of the ward is *E absolute. hus+ a widow mother may be competent guardian for the person of her minor children but because of her want of business e4perience is incompetent to manage the minor@s estate (+a%rence v. and he shall appear for and represent his ward in all actions and special proceedings+ unless another person be appointed for that purpose. /. he duty of the ordinary guardian e4tends only to proper and suitable application of the means of the ward. . he lawfully appointed guardian of the person is entitled to custody of the ward+ his right in this respect being superior to any rights of relatives Similarly+ the ward is under the legal duty to remain with and submit himself to the control of the guardian P wer f t4e C urt /er t4e Cu"t !. he policy of the law does not favor the award of guardianship of an infant@s person to one party and the guardianship of his estate to another+ the reason being that from the separation of these duties+ while little benefit can be anticipated+ many in conveniences and considerable increase of e4pense must necessarily follow "owever+ a separate guardian of the person and of the estate may be appointed by the court+ for a person may be competent to discharge certain duties and incompetent to discharge others. La#i: %302. if not+ then out of his real estate upon obtaining an order for the sale or encumbrance thereof. Guardian is the lawful possessor of monies and properties received by him for and on behalf of the ward.s %ust debts out of his personal estate and the income of his real estate+ if sufficient. !ue t t4e war! Guardian has the right to collect all the assets of the ward+ and to reduce to possession the ward@s choses in action and collect the debts and obligation due him $ollection of assets and debts+ being a ministerial act+ guardian may employ an agent to perform the duty for him+ but such agent must be chosen with reasonable care and must be supervised by him with the same care Liabilit. Sub%ect to the supervisory powers of the court+ the manner and details of a ward@s education are committed to the discretion of the guardian+ whose primary duty is to decide whether or not allowance should be made for the support and education of the infant ward 1n the e4ecution of his inherent duty to maintain and protect the infant ward+ the guardian needs no court order 5oney properly paid by the guardian for the education of his ward cannot be recovered from the person to whom it was paid by either the guardian or the ward Guar!ian<" c ntr l /er Ear!<" E"tate ! lawfully appointed guardian of the estate has a general authority over the property and affairs of his ward he guardian is a trustee+ and persons dealing with him are bound to 'now his powers and duties and the rules by which he is governed Jue"ti n<" f Title t Pr #ert. Guardian to pay debts of ward. f t4e Ear! he rights of the guardian to the custody and support of the ward+ and the services and earnings of the ward carry with them the obligation to provide for the proper support and education of the ward+ though he is not under any obligation to support the ward out of his own means. Sec. in t4e @an!" f t4e Guar!ian he court in the guardianship proceeding is concerned solely with the ward@s care and custody and proper administration of his properties+ thus conflicts regarding title to property in the hands of the guardian should be litigated in a separate proceeding Guar!ian A! Lite9 %GAL2 ! G!K is any competent person appointed by the court for purposes of a particular action or proceeding involving a minor Li9 Si A @ue.
NOTES AND CASES- UP LAW BAROPS 2007 49 of 95 ONE UP LAW . Re#re"ent Ear! in Partiti n Ahen the interest of either parent conflicts with that of the children under his authority+ a third party will be appointed to represent then in law and in fact (!rt. and if such income and profits be insufficient for that purpose+ the guardian may sell or encumber the real estate+ upon being authori#ed by order so to do+ and apply so much of the proceeds as may be necessary to such maintenance. Guar!ian >nder R. f t4e Guar!ian t C 9#r 9i"e f r Ear! Guardian has authority to compromise a claim e4isting in favor of the ward 0> prior approval of the $ourt for a compromise by the guardian should be first secured. and (c) authori#ation is granted only after a careful investigation as to the necessity and propriety of the proposed action A9icable "ettle9ent 2artition may be %udicial or amicable E4en Parent" 9a. t4e Guar!ian Guardian must be faithful+ vigilant and competent in the management of the estate of the ward "e is bound to e4ercise such diligence and prudence as reasonable men ordinarily employ in the conduct of their own affairs and will be held liable for any loss which result from his failure to e4ercise such prudence and diligence "owever+ he is not an insurer or reDuired to e4ercise a higher degree of prudence and diligence than that stated and if his conduct measures up to his standard+ he is not liable for losses which have occurred through his errors of %udgment Sec. Estate to be managed frugally+ and proceeds applied to maintenance of ward. B in Partiti n Pr cee!in$" ReDuirements: (a) such permission or authori#ation by the court be granted only after hearing the petition for the grant of such authority. NOTES AND CASESGuar!ian 9a. P4il 7. SJ+ RE$+ a minor or an insane person may sue or be sued+ in cases provided by law+ through his father+ mother+ guardian+ or if he has none+ through a G!K appointed by the court hus+ if a legal proceeding is necessary to preserve the estate of the ward the Guardian may institute the action in the name of the ward+ by himself or some other person as ne4t friend Aut4 rit. GAL General rule: G!K has no authority to act or bind the minor in any transaction with regard to his estate ET$E2 : with court approval %Sant D 9in$ /. f t4e Guar!ian t Mana$e t4e e"tate fru$all. 2roceedings when person suspected of embe##ling or concealing property of ward. Sant D 9in$ 6 >8.2. @er9an "6 78 P4il ?>1. J. G >pon complaint of the guardian or ward+ or of any person having actual or prospective interest in the estate of the ward as creditor+ heir+ or otherwise+ that anyone is suspected of having embe##led+ concealed+ or conveyed away any money+ goods+ or interest+ or a written instrument+ belonging to the ward or his estate+ the court may cite the suspected person to appear for e4amination touching such money+ goods+ interest+ or instrument+ and ma'e such orders as will secure the estate against such embe##lement+ concealment or conveyance. 1f he delegates his duties to another+ he shall be responsible for the other@s actions in the premises and for any resulting loss unless it be shown that he used reasonable care and discretion in the manner of selecting those whom he employs. 1IJ+ $$) Sec. =. he court may authori#e the guardian to %oin in an assent to a partition of real or personal estate held by the ward %ointly or in common with others+ but such authority shall only be granted after hearing+ upon such notice to relatives of the ward as the court may direct+ and a careful investigation as to the necessity and propriety of the proposed action. Guardian may be authori#ed to %oin in partition proceedings after hearing. Sec. Aithout such approval+ the action by the guardian remains open for challenge C 9#r 9i"e b. ! guardian must manage the estate of his ward frugally and without waste+ and apply the income and profits thereon+ so far as may be necessary+ to the comfortable and suitable maintenance of the ward and his family+ if there be any. 1f negligence is attendant+ the guardian will be liable for the assets lost thereby+ which may have been collected had he been diligent "e is not liable if he acts in good faith and in the e4ercise of reasonable diligence =rin$in$ Suit" b. (b) there is notice of the partition to the relatives of the ward. De$ree f Care t be Ob"er/e! b. NOTES AND CASESDut. Guardian must manage the ward@s property frugally and without waste Per" nal Mana$e9ent f t4e E"tate Guardian must give his personal care and attention to the maintenance of the ward@s estate and to 'eep the funds and property of the ward under his own control Iubel!ia /. I.
P4il . 1n the appraisement the court may reDuest the assistance of one or more of the inheritance ta4 appraisers. Guardian may be imprisoned for failure to render his account and he can be ordered to deliver the property of the estate to his successor E. 1nventories and accounts of guardians+ and appraisement of estates. 3iling of the inventory is reDuired for it will constitute the basis of subseDuent accountings and settlements +ailure f t4e Guar!ian t Inclu!e a Pr #ert. f Acc unt an! Settle9ent !ccounts submitted must be complete and accurate. Sufficienc. !ll the estate of the ward described in the first inventory shall be appraised. ?.Pur# "e f t4e Rule Cui /. >pon the e4piration of a year from the E. a motion for a more specific statement may be resorted to if there is failure of accounts to state sufficient facts to ma'e a clear showing 1t should be rendered under oath Penalt. Ahen guardian.ecut r r A!9ini"trat r Sec. f t4e Ear!<" Pr #ert. ET$2E : he managed the estate in good faith and neglect to file an account has not operated to the in%ury of the ward. E4tra allowance may be made in each case as the importance and difficulty of the management of the estate may reDuire.#en"e" Per9itte! an! All wance" $rante! t t4e Guar!ian Guardian is entitled to compensation for his services rendered with the authority of the $ourt Ra9 " /.58. !nd whenever any property of the ward not included in an inventory already rendered is discovered+ or succeeded to+ or acDuired by the ward+ li'e proceedings shall be had for securing an inventory and appraisement thereof within three (. 1n the settlement of the account+ the guardian+ other than a parent+ shall be allowed the amount of his reasonable e4penses incurred in the e4ecution of his trust and also such compensation for his services as the court deems %ust+ not e4ceeding fifteen per centum of the net income of the ward . f r Acc untin$ Safety of the Guardian+ the reDuirement of business prudence and the welfare of the ward and his estate demand that so long as unaccounted property of the ward remains in the possession of the guardian+ he is reDuired to render an account and is not entitled to credit e4penditures until he has filed an account showing its terms. f t4e Guar!ian t Sub9it In/ent r. Picci 6 17 P4il 7>2.) months after his appointment+ and annually after such appointment an inventory and account+ the rendition of any of which may be compelled upon the application of an interested person. o secure evidence from persons suspected of embe##ling+ 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 said property C urt cann t r!er t4e Deli/er. Such inventories and accounts shall be sworn to by the guardian. f t4e Ear! !ny interested person may file a petition before the court to compel the guardian to include such additional property in the inventory C rrectne"" f t4e Guar!ian<" Re# rt Guardianship court has ample discretion and is not limited to the relief prayed for in the pleadings alone but may grant whatever amount it may find the wards are entitled to as shown by the evidence Sec.s accounts presented for settlement.<<Lday or a commission on the value Guar!ian *ot more than 1JP of the net UP LAW BAROPS 2007 50 of 95 ONE UP LAW .ecut rDA!9ini"trat r 2=. but the matter rests solely on the discretion of the $ourt Di"tin$ui"4e! fr 9 C 9#en"ati n t E. be !enie! c 9#en"ati n 3ailure to file annual accounts may call for the forfeiture of the guardian@s compensation or the allowance of an amount less than would otherwise have been considered reasonable. Ahere title of any property said to be embe##led+ concealed or conveyed is in Duestion+ the determination of said right+ must be determined in a separate action and not in guardianship proceedings GE*ER!K rule: he court in the separate action has the power to order the delivery of the ward@s property found to be embe##led+ concealed and conveyed and the court in guardianship proceedings has %urisdiction only to cite persons suspected of having embe##led+ concealed or conveyed property belonging to the ward for the purpose of obtaining information which may be used in the separate action ET$E2 : in e4treme cases where property clearly belongs to the ward or where his title thereto has been already decided time of his appointment+ and as often thereafter as may be reDuired+ a guardian must present his account to the court for settlement and allowance. E4en Guar!ian 9a. G E4penses and compensation allowed. L #e:6 . NOTES AND CASESDut. 6. PN=6 %372. NOTES AND CASESNece""it.) months after such discovery+ succession+ or acDuisition. f r +ailure t Ren!er Acc unt" D r nila /. G ! guardian must render to the court an inventory of the estate of his ward within three (.
*ew appointment.of such estate as has come to the possession of the e4ecutorLadministrator and had been disposed by him in payment of debts+ etc+ or in any amount that the court may deem %ust Guar!ian income of the ward Nature !d%udgment of $ompetency f Pr cee!in$ f r Re"t rati n f Ca#acit. En the trial+ the guardian or relatives of the ward+ and+ in the discretion of the court+ any other person+ may contest the right to the relief demanded+ and witnesses may be called and e4amined by the parties or by the court on its own motion. Cafuir6 05 P4il 33?. 2etition that competency of ward be ad%udged+ and proceedings thereupon. he petition shall be verified by oath+ and shall state that such person is then competent. Guardianship terminates when minority has passed or incapacity has ceased E4 9a. Removal can be deemed discretionary to the e4tent that the court uses its discretion in appraising whether a person is unsuitable or incapable of discharging his trust +elician /. Ahen a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor+ or has wasted or mismanaged the estate+ of failed for thirty (.Guar!ian"4i# f Inc 9#etent ' "e !e Inc4au"ti6 ?8 P4il 5022 *ot intended as a personal service process in the sense necessary to give %urisdiction over the ward or to the cause and other parties ReDuired merely as assurance that the individual chiefly concerned shall have cogni#ance of what is being done O## "iti n En or before the hearing of the petition+ the guardian+ relatives of the ward and in the discretion of the $ourt+ any other person may contest the right to relief demanded Sec. Ca94 rt6 22 P4il 2. Mi"9ana$e9ent f t4e Ear!<" E"tate Gr un!" f r Ter9inati n death of guardian or ward marriage 9 or voluntary emancipation: $ivil $ode G guardianship over the property remains+ only guardianship over the person is terminated 3amily $ode G guardianship over property and person are terminated UP LAW BAROPS 2007 51 of 95 ONE UP LAW . NOTES AND CASESTe9# rar. 7. >pon receiving the petition+ the court shall fi4 a time for hearing the Duestions raised thereby+ and cause reasonable notice thereof to be given to the guardian of the person+ so declared incompetent+ and to the ward. file #etiti n 2erson previously declared incompetent+ guardian+ relative or friend N tice f @earin$ f Petiti n %In Re. PN= %5>2. 0N1) C ntent R(LE 17 TERMINATION O+ G(ARDIANS@IP Sec.3. Ahen guardian removed or allowed to resign. f Re9 /al f Guar!ian ! continuation of the original guardianship proceeding. 1. neither new nor independent f Petiti n &erified and must state that such person is competent f t4e Per" n entitle! t C 9#en"ati n Guardian of the person of a minor who is not related to him but charged with the duty to see to his care and support is logically entitled to some compensation for his services where his ward has property or income from which compensation may be legally paid (!amos v. NOTES AND CASESGr un!" f r Re9 /al wit4in t4e Di"creti n f t4e Guar!ian"4i# C urt Enumeration is e4clusive. and upon his resignation or removal the court may appoint another in his place. guardian cannot be removed from office for causes other than those enumerated Pa!illa /. ! guardian may resign when it appears proper to allow the same. 1f it be found that the person is no longer incompetent+ his competency shall be ad%udged and the guardianship shall cease. nature f Guar!ian"4i# Celi" /. ! person who has been declared incompetent for any reason+ or his guardian+ relative+ or friend+ may petition the court to have his present competency %udicially determined.<) days after it is due to render an account or ma'e a return+ the court may+ upon reasonable notice to the guardian+ remove him+ and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. ! large discretion must be allowed the %udge who deals directly with the parties+ and who+ for this reason+ should be e4ceptionally well-Dualified to form a correct opinion as to the special needs of the minors+ the character and Dualification of persons whose names are proposed for appointments as guardian+ and the wise and prudent course to be adopted under all the varying circumstances to be found in each particular case.
OT@ER SPECIAL PROCEEDINGS R(LE 10 C TR(STEES SE$ 1E* 1. Erder removing a guardian is an order constituting a final determination of his rights and conseDuently said guardian may !22E!K guardianship of the person of the ward+ and shall enable the minor to administer his property as though he were of age+ but he cannot borrow money or alienate or encumber real property without the consent of his father or mother+ or guardian. f Guar!ian fr 9 Or!er f Re9 /al Olarte /. (a). (e) speculating with or improperly investing funds of the ward although the guardian has acted in good faith and from the best of motives vi. 7. 3inal orders or %udgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated. (c) use of the ward@s funds for the benefit of the guardian iv. (b) conversion of the ward@s property to his own use iii. Where trustee appointed. !rt. 7. ! trustee necessary to carry into effect the provisions of a will or written instrument shall be appointed by the Regional rial $ourt in which the will was Sec. >nless otherwise provided+ ma%ority commences at the age of twenty-one years. G Ahen a %ustice of the peace or municipal court ta'es cogni#ance of the proceedings in pursuance of the provisions of these rules+ the record of the proceedings shall be 'ept as in the court of first instance. =. 1f a guardian is found to be negligent in his duties+ causing resulting damage to the ward or his estate+ the person must be removed and changed by the court which appointed him. he guardian of any person may be discharged by the court when it appears+ upon the application of the ward or otherwise+ that the guardianship is no longer necessary. !rt. $ontracting marriage shall reDuire parental consent until the age of 71. Ether termination of guardianship. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be Dualified and responsible for all acts of civil life+ save e4ceptions established by e4isting laws in special cases. (f) ignorance or imprudence of the guardian whereby the ward@s interest suffers vii. Service of %udgment. t4e Guar!ian Guardian may file a petition before the guardianship court for permission to resign his trust+ stating the grounds therefor+ and accompanied by a report of the state of his account and an offer to settle the account and deliver the estate over to the court Partial Re9 /al f Guar!ian"4i# Ahere the interest of the infant so reDuires+ the guardian may be retained as guardian of the person although removed as guardian of the estate Re9e!. (g) $onverting real estate into personality without order of the $ourt (5anotoc v.I.. Enri7ue:6 %582. e4travagant e4penditures ii.=. Emancipation ta'es place by the attainment of ma%ority. "e can sue and be sued in court only with the assistance of his father+ mother or guardian. J. Sec. . he marriage or voluntary emancipation of a minor ward terminates the UP LAW BAROPS 2007 52 of 95 ONE UP LAW . Smith) $onflict of 1nterests I99 ral c n!uct $ase of immorality or impropriety must be a very strong one in order to %ustify removal of a natural guardian hus+ where a mother+ acting as a guardian is married to a man addicted to using profanity toward her and the children+ it did not %ustify her removal Default" n In/ent rie"6 Re# rt" an! Acc unt" ! guardian may be removed if he fails for . *othing in this $ode shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below 71 years of age mentioned in the second and third paragraphs of !rticle 71?< of the $ivil $ode >nder the rules on guardianship of minors+ §7J+ there is only one ground for termination of guardianship G emancipation or death of ward /&oluntary emancipation under the amendments introduced by R! I?<8+ is no longer recogni#ed as a ground for the termination of parental authority or guardianship Sec. $ircumstances regarded as neglect or misconduct: i.< days after it is due to render an account or ma'e return+ on reasonable notice to the guardian Re"i$nati n b. PART ). Record to be 'ept by the %ustice of the peace or municipal %udge. (d) commingling of funds of the ward with his own v.
J.1.erci"e t4e S un! 'u!$9ent b. N tice an! C n"ent f =eneficiar.ten! be. but the court may+ until further order e4empt a trustee under a will from giving a bond when the testator has directed or reDuested such e4emption+ and may so e4empt any trustee when all persons beneficially interested in the trust+ being of full age+ reDuest the e4emption. SE$. NOTES >. SE$. 1f a testator has omitted in his will to appoint a trustee in the 2hilippines+ and if such appointment is necessary to carry into effect the provisions of a will+ the proper Regional rial $ourt may+ after notice to all persons interested+ appoint a trustee who shall have the same rights+ powers and duties and in whom the estate shall vest+ as if he had been appointed by the testator. =. . 7. Such new trustee shall have and e4ercise the same powers+ rights+ and duties as if he had been originally appointed+ and the trust estate shall vest in him in li'e manner as it had vested or would have vested+ in the trustee in whose place he is substituted. f Aut4 rit. 0efore entering on the duties of his trust+ a trustee shall file with the cler' of the court having %urisdiction of the trust a bond in the amount fi4ed by the %udge of said court+ payable to the Government of the 2hilippines and sufficient and available for the protection of any party in interest+ and a trustee who neglects to file such bond shall be considered to have declined or resigned the trust. and the court may order such conveyance to be made by the former trustee or his representatives+ or by the other remaining trustees+ as may be necessary or proper to vest the trust estate in the new trustee+ either alone or %ointly with the others.R $ in which the property+ or some portion thereof+ affected by the trust is situated.. 1f the will was allowed within the 2hilippines: .R $ in which the will was allowed b. f t4e Re#ublic f t4e P4ili##ine" based on the participle that his authority cannot e4tend beyond the %urisdiction of the Republic of the 2hilippines. with the court and the appellate court will decline to interfere e4cept in cases of clear abuse. 1f the Aill was allowed without the 2hilippines (in other cases): . NOTES>.he # wer" of a trustee appointed by the 2hilippine court cann t e. Appointment and po%ers of ne% trustee under %ritten instrument. 0roceedings %here trustee. E4 Ma.rustee must file bond. E. *o person succeeding to a trust as e4ecutor or administrator of a former trustee shall be reDuired to accept such trust. Appointment and the po%ers of trustee under %ill& 3(ecutor of former trustee need not administer trust. Ahen a trustee under a written instrument declines+ resigns+ dies+ or is removed before the ob%ects of the trust are accomplished+ and no adeDuate provision is made in such instrument for supplying the vacancy+ the proper Regional rial $ourt may+ after due notice to all persons interested+ appoint a new trustee to act alone or %ointly with the others+ as the case may be. N t E""ential f r Creati n f SE$. !lthough the will does not name a trustee+ the probate court e4ercises sound %udgment in appointing a trustee to carry into effect the provisions of the will where a trust is actually created by the will by the provision that certain of the property shall be 'ept together undisposed during a fi4ed period for a stated purpose.allowed+ if it be a will allowed in the 2hilippines+ otherwise by the Regional rial $ourt of the province in which the property+ or some portion thereof+ affected by the trust is situated. Such e4emption may be cancelled by the court at any time+ and the trustee reDuired to forthwith file a bond. Di"creti n f t4e C urt in t4e A## int9ent f a Tru"tee .Tian$c /. +ile Petiti n f r A## int9ent f Tru"tee . t4e C urt in t4e A## int9ent f a Tru"tee L ren: /. P "a!a". and upon his neglect or refusal to comply with such order+ the court shall declare such trust vacant+ and shall appoint a new trustee in whom the trust estate shall vest in li'e manner as if he had been originally appointed by such court. 2. +ranci"c 6 50 P4il 5. UP LAW BAROPS 2007 53 of 95 ONE UP LAW . NOTES>. he 2ower to appoint a trustee is !i"creti nar. f a Tru"tee . E4 a## int" t4e tru"tee a. Ahen land in the 2hilippines is held in trust for persons resident here by a trustee who derives his authority from without the 2hilippines+ such trustee shall+ on petition filed in the Regional rial $ourt of the province where the land is situated+ and after due notice to all persons interested+ be ordered to apply to the court for appointment as trustee. SE$. n! t4e c nfine" f t4e territ r..appointed abroad. hereafter+ upon proper showing that the interest of %ustice would be adeDuately served with the removal of the incumbent trustees+ it is li'ewise within its discretion to do so and the appellate court will refuse to interfere in the absence of a showing of grave abuse or whimsical and capricious e4ercise of that discretion. Territ rialit. Tru"t 2. .he e4ecutor or administrator or the person appointed as trustee under the will or written instrument .
2. NOTES>. . +ilin$ f = n! a" a Re7uire9ent .w4en in/ent r.ecut r r A!9ini"trat r EKEC(TOR D ADMINISTRATOR holds an office of trust duties are fi4ed andL or limited by law 2. Acc untin$ b.when the testators has directed or reDuested such e4emption or when all persons beneficially interested in the trust+ being of full age+ reDuest the e4emption.tru"tee "4 ul! 9aAe an! return t t4e c urt6 a true inventory of all the real and personal estate belonging to him as trustee which at the time of the ma'ing of such inventory shall have come to his possession or 'nowledge.(the trustee is chargeable with the value of the asset lost through a failure in his duty to get them into possession) . he trustee is bound to c 9#l. Liabilit. are /ali! an! c n"i"tent wit4 t4e rule" f law6 unless e4empted from the literal performance by the consistent of all persons interested+ and by the sanction of the court. "e must carry into effect the trusts " far a" t4e. 3. +ilin$ In/ent r. f Tru"tee f r Tru"t +un!" f E. tru"tee un!er a will.trustee appointed by the court i" re7uire! t furni"4 a b n! in order to Dualify him to administer the trust. Dutie" f Tru"tee /i"CPC/i" E. +ait4ful Di"c4ar$e f t4e Tru"t %illu"trati n"2 . . unnecessary and unreasonable delay in securing of the trust property is at his personal ris'. Manner TR(STEE holds an office of trust usually governed by the intention of the trustor or the parties (if established by contract) duties of trustees may cover a wider range %Araneta /. 0ut when the trustee is appointed as a successor to a prior trustee+ the court may dispense with the ma'ing and return of an inventory+ if one has already been filed+ and in such case the condition of the bond shall be deemed to be altered accordingly. Tru"tee he cestui .must enforce and collect chooses in action+ debts and demands belonging to the estate+ e4cept where such collection and enforcement will result in a loss to the estate.NOTES>.when the trustee is appointed as a successor to a prior trustee+ the court may dispense with the ma'ing and return of an inventory+ if one has already been filed. Pere:6 %5222 . can be !i"#en"e! wit4. Conditions included in bond. he duty e4tends to income and increments of the estate. 5. (c) hat he will render upon oath at least once a year until his trust is fulfilled+ unless he is e4cused therefrom in any year by the court+ a true account of the property in his hands and of the management and disposition thereof+ and will render such other accounts as the court may order. "trictl.e.must act with reasonable diligence. wit4 t4e !irecti n" c ntaine! in t4e tru"t in"tru9ent defining the e4tent and limits of his authority+ and the nature of his power and duties. C rule.e9#ti n fr 9 filin$ f b n! b. b. Such e4emption may cancelled by the court at any time+ and the trustee reDuired to forthwith file a bond. a. Effect f +ailure t +ile = n! .. I.ue trust is entitled to a complete accounting from the trustee.ecutin$ t4e Tru"t UP LAW BAROPS 2007 54 of 95 ONE UP LAW . he following conditions shall be deemed to be a part of the bond whether written therein or not: (a) hat the trustee will ma'e and return to the court+ at such time as it may order+ a true inventory of all the real and personal estate belonging to him as trustee+ which at the time of the ma'ing of such inventory shall have come to his possession or 'nowledge. (b) hat he will manage and dispose of all such estate+ and faithfully discharge his trust in relation thereto+ according to law and the will of the testator or the provisions of the instrument or order under which he is appointed. (d) hat at the e4piration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands+ or due from him on such settlement+ to the person or persons entitled thereto. SE$. ?.he fails to Dualify as trustee. .power and duty of a trustee to collect+ ta'e possession of+ and 'eep in his custody the trust property and assets and to hold+ manage and apply the same to effect the purposes of the trust and to ma'e payments and distribution to beneficiaries in accordance with the terms of the trust.
Nature f P ""e""i n b. Tua: n6 33 P4il 7212 0. Ene who+ having in his possession trust funds+ deposits them in his personal account in a ban'+ and mi4es them with his own funds+ does not thereby assume an obligation different from that under which he would have lain if such deposit had not been made.t4r u$4 a #etiti n (and not an action at law by the beneficiary to recover the property from him) in t4e c urt in w4ic4 a## int9ent of the trustee was made+ 2.32 where trust property is misapplied by the trustee. d. ris' and responsibility . #re"cri#ti n: when there is a repudiation of the trust+ such repudiation being open+ clear and uneDuivocal+ 'nown to the cestui .acce#tance f t4e re"i$nati n of a trustee i" n t a 9atter f c ur"e (due regard must be had for the interest of the parties to be affected and there must ordinarily be some ground for discharge other tha mere wish of the trustee to be relieved) SE$. =(T . 1n such case+ the period of prescription in favor of the heirs of the trustee should be computed from the date of the trustee@s death.shall be fi.tru"tee cann t ac7uire t4e tru"t e"tate b. Compensation of trustee. Cri"t bal6 77 P4il 7>22 C E4en a tru"tee 9a. #re"cri#ti n because for the purpose of prescription+ the possession of the property by the trustee is not an adverse possession+ but only a possession in behalf of the owner of the same.when he files a claim for the same (note: reasonableness cannot be decided in advance because it depends upon varied circumstances) C fact r"1.#en!iture" which he has made (including e4penses incurred in rendering and proving his accounts and for costs and counsel fees in connection therewith) SE$.. ac7uire t4e tru"t e"tate b. care X management of the estate . !e la Pena6 25 P4il >??. SE$. Re"i$nati n b. *or can the trustee@s heirs ma'e use of this possession to establish the prescription which they alleged.#en"e" . Ahen the sale or encumbrance of any real or personal estate held in trust is necessary or e4pedient+ the court having %urisdiction of the trust may+ on UP LAW BAROPS 2007 55 of 95 ONE UP LAW .. nor does he thereby become liable to repay the money at all ha#ards.ue trust (because in that case+ possession is no longer in behalf of the owner) %Salina" /. t4e c urt if not determined in the instrument creating the trust. C 9#en"ati n f Tru"tee .a trustee is at libert.. 8. character X powers of the trusteeship 7.Rule. he court may also+ after due notice to all persons interested+ remove a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. time =. @ w t effect re9 /al f a Tru"tee . =reac4 f Tru"t b. Gr un! f r Re9 /al f Tru"tee %n t e.R 9an Cat4 lic =i"4 # f 'ar /. if removal is essential in the interests of the petitioner b. Tru"tee . %Pal9a /.ti9e t !eter9ine t4e rea" nablene"" f t4e fee" f t4e tru"tee.reimbursement for ALL NECESSARY an! REASONA=LE e.. Rei9bur"e9ent f Tru"tee f r e.W he proper Regional rial $ourt may+ upon petition of the parties beneficially interested and after due notice to the trustee and hearing+ remove a trustee if such removal appears essential in the interests of the petitioners. he compensation of the trustee shall be fi4ed by the court+ if it be not determined in the instrument creating the trust.lies in court@s discretion 2. NOTES>. Tru"tee . . +act r" Affectin$ Tru"tee<" C 9#en"ati n . . !emoval or resignation of trustee. 7. Tru"tee =reac4 f Tru"t is every violation by a trustee of a duty which eDuity imposes on him+ whether willful and fraudulent or done through negligence or arising through mere oversight or forgetfulness. Appraisal. t re"i$n and apply for release on the sole grounf of unwillingness to act further in the trust. ?. NOTES>. 6. trustee becomes insane or otherwise incapable of discharging the trust or evidently unsuitable c. Gran 6 ?2 P4il . when a trustee assumes to be holding in his own right (operates as a renunciation of the trust) %Martine: /.clu"i/e2 a. Ahen an inventory is reDuired to be returned by a trustee+ the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance ta4 appraisers to assist in the appraisement. 0roceedings for sale or encumbrance of trust estate. and where such funds are ta'en from the ban' by fur$e ma*or (force ma%or)+ he is relieved from responsibility in relation thereto.e! b. ! trustee+ whether appointed by the court or under a written instrument+ may resign his trust if it appears to the court proper to allow such resignation.
Pr f f A! #ti n. *ot an adversarial proceeding since it has no particular defendant.the trustee@s conduct of bidding at a sale of trust property is governed by the cardinal principle of his duty of good faith and loyalty to the trust. /bjectives. Ara:an" %552. ! petition which contain the facts relating to the child and its parents substantially complies with the adoption statute. Ara:an" 6 %5522 • Pur# "e f A! #ti n. E.promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life. 7. (b) he State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling+ neglected+ orphaned+ or abandoned.he decree of adoption is competent proof of the fact of adoption. NA. .Sant " /. *o court may entertain it unless it has %urisdiction over the parties and the res G the personal status of the parties.petition and after due notice and hearing+ order such sale or encumbrance to be made+ and the reinvestment and application of the proceeds thereof in such manner as will best effect the ob%ects of the trust. echnical rules of pleading should not be stringently applied to adoption proceedings.they have n # wer t c4an$e the character of the trust property unless it is of a perishable or transitory nature . Ahen the parent has abandoned the child to be adopted+ notice to the former is not reDuired. o this end+ the State shall: R(LE 11 ADOPTION AND C(STODY O+ MINORS *ote: Rules 88 to 1<< have been e4pressly repealed by !5 *o. %Sant " /. Every reasonable intendment should be sustained to fulfill and promote the interest and welfare of the child. Dut. t4e C urt f it" P wer . Re#ublic6 10 P4il 5512 • La4u9 /. f Pr cee!in$. %Pra"nicA /. 1t is a privilege which is governed by the state@s determination of what is for the best welfare of the child. "owever+ if it can be proved that there was a decree but was lost+ destroyed or cannot be produced in court+ secondary evidence may be admitted. Ele#an %1>2. $onstructive notice is enough where the residence of the parents un'nown.generally+ the trust estate or the purposes of the trust must be endangered before the court will act (the mere fact that the contemplated sale will be profitable is not deemed sufficient ground for invo'ing the aid of the court). he petition+ notice+ hearing+ order of sale or encumbrance+ and record of proceedings+ shall conform as nearly as may be to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards. <7-I-<7+ BRule on !doptionC which became effective on !ugust 77+ 7<<7. Sibul %8. N .court has power to prohibit or order sale (where such action is necessary to the e4ecution of the purposes of the trust+ for the protection of the estate and the rights of the beneficiaries) . G his Rule covers the domestic adoption of 3ilipino children. • he absence of such order by the court cannot be substituted by parole evidence that a child has lived with a person+ not his parent+ and has been treated as a child establish such adoption. Definiti n f A! #ti n.In Re9 Nature UP LAW BAROPS 2007 56 of 95 ONE UP LAW . Show: E4ecution+ E4istence+ loss+ contents. )E5ES 1$ !)E2 1E* Section 1. .9. 2. • 2edigree testimony is not allowed. • • Re#ublic /.if a c4an$e i" nece""ar. G (a) he best interests of the child shall be the paramount consideration in all matters relating to his care+ custody and adoption+ in accordance with 2hilippine laws+ the >nited *ations (>*) $onvention on the Rights of the $hild+ >* )eclaration on Social and Kegal 2rinciples Relating to the 2rotection and Aelfare of $hildren with Special Reference to 3oster 2lacement and !doption+ *ationally and 1nternationally+ and the "ague $onvention on the 2rotection of $hildren and $ooperation in Respect of 1nter-country !doption. C n"tructi n f A! #ti n Statute". Re7uire9ent f 'u!icial Or!er f r Sale r Encu9brance f Tru"t E"tate .2.6 #er9i""i n of the court should be obtained.%uridical act which created between two persons a relation similar to that which results from legitimate filiation. Applicabilit* of the !ule. Sec.. NOTES>. 82C5C82CSC 2882C80C82O R(LE ON ADOPTION !. f Tru"tee Durin$ t4e Sale f Tru"t Pr #ert. !doption is a privilegeWnot innate or fundamental but rather a right created by statute.trustees have the duty to collect and preserve intact the trust property .erci"e b.
C (f) (f) B!bandoned childC refers to one who has no proper parental care or guardianship or whose parents have deserted him for a period of at least si4 (I) continuous months and has been %udicially declared as such.(i) (i) ensure that every child remains under the care and custody of his parents and is provided with love+ care+ understanding and security for the full and harmonious development of his personality.. or a child committed to an orphanage or charitable or similar institution with un'nown facts of birth and parentage and registered in the $ivil Register as a Bfoundling. (vi) encourage domestic adoption so as to preserve the child@s identity and culture in his native land+ and only when this is not available shall inter-country adoption be considered as a last resort. 2efinition of . (e) (e) B3oundlingC refers to a deserted or abandoned infant or child whose parents+ guardian or relatives are un'nown. (n) (n) B)eed of &oluntary $ommitmentC refers to the written and notari#ed instrument relinDuishing parental authority and committing the child to the care and custody of the )epartment e4ecuted by the child@s biological parents or in UP LAW BAROPS 2007 57 of 95 ONE UP LAW . . !ny voluntary or involuntary termination of parental authority shall be administratively or %udicially declared so as to establish the status of the child as Blegally available for adoptionC and his custody transferred to the )epartment of Social Aelfare and )evelopment or to any duly licensed and accredited childplacing or child-caring agency+ which entity shall be authori#ed to ta'e steps for the permanent placement of the child. G 3or purposes of this Rule: (a) (a) B$hildC is a person below eighteen (1?) years of age at the time of the filing of the petition for adoption. (g) (g) B)ependent childC refers to one who is without a parent+ guardian or custodian or one whose parents+ guardian or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support. (d) (d) B1nvoluntarily committed childC is one whose parents+ 'nown or un'nown+ have been permanently and %udicially deprived of parental authority over him due to abandonment. (c) (c) B&oluntarily committed childC is one whose parents 'nowingly and willingly relinDuish parental authority over him in favor of the )epartment.erms. (') (') B$hild-placement agencyC refers to an agency duly licensed and accredited by the )epartment to provide comprehensive child welfare services including+ but not limited to+ receiving applications for adoption+ evaluating the prospective adoptive parents and preparing the adoption home study report. (ii) safeguard the biological parents from ma'ing hasty decisions in relinDuishing their parental authority over their child. and (vii) protect adoptive parents from attempts to disturb their parental authority and custody over their adopted child. (%) (%) BEmotional neglectC e4ists when a child is raped+ seduced+ maltreated+ e4ploited+ overwor'ed or made to wor' under conditions not conducive to good health or made to beg in the streets or public places+ or placed in moral danger+ or e4posed to drugs+ alcohol+ gambling+ prostitution and other vices. (h) (h) B*eglected childC is one whose basic needs have been deliberately not attended to or inadeDuately attended to+ physically or emotionally+ by his parents or guardian. (b) (b) B! child legally available for adoptionC refers to a child who has been voluntarily or involuntarily committed to the )epartment or to a duly licensed and accredited child-placing or child-caring agency+ freed of the parental authority of his biological parents+ or in case of rescission of adoption+ his guardian or adopter(s). or incompetence to discharge parental responsibilities. (m) (m) B)epartmentC refers to the )epartment of Social Aelfare and )evelopment. (i) (i) B2hysical neglectC occurs when the child is malnourished+ ill-clad and without proper shelter. (iii) (iii) prevent the child from unnecessary separation from his biological parents. Enly when such efforts prove insufficient and no appropriate placement or adoption within the child@s e4tended family is available shall adoption by an unrelated person be considered. (iv) conduct public information and educational campaigns to promote a positive environment for adoption. substantial+ continuous or repeated neglect and abuse. (v) ensure that government and private sector agencies have the capacity to handle adoption inDuiries+ process domestic adoption applications and offer adoption-related services including+ but not limited to+ parent preparation and post-adoption education and counseling. (l) (l) B$hild-caring agencyC refers to an agency duly licensed and accredited by the )epartment that provides 7=-hour residential care services for abandoned+ orphaned+ neglected or voluntarily committed children. Sec.
) he guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.their absence+ mental incapacity or death+ by the child@s legal guardian+ to be witnessed by an authori#ed representative of the )epartment after counseling and other services have been made available to encourage the biological parents to 'eep the child. emporary absences for professional+ business+ health+ or emergency reasons not e4ceeding si4ty (I<) days in one (1) year does not brea' the continuity reDuirement. (D) (D) BSupervised trial custodyC refers to the period of time during which a social wor'er oversees the ad%ustment and emotional readiness of both adopters and adoptee in stabili#ing their filial relationship. =. "usband and wife shall %ointly adopt+ e4cept in the following cases: (i) if one spouse see's to adopt the legitimate child of one spouse by the other spouse. G he following may adopt: (1) !ny 3ilipino citi#en of legal age+ in possession of full civil capacity and legal rights+ of good moral character+ has not been convicted of any crime involving moral turpitude. (7) !ny alien possessing the same Dualifications as above-stated for 3ilipino nationals: 2rovided+ hat his country has diplomatic relations with the Republic of the 2hilippines+ that he has been living in the 2hilippines for at least three (. Who ma* adopt. (o) (o) B$hild Study ReportC refers to a study made by the court social wor'er of the child@s legal status+ placement history+ psychological+ social+ spiritual+ medical+ ethno-cultural bac'ground and that of his biological family needed in determining the most appropriate placement for him. SE$. (s) (s) BSimulation of birthC is the tampering of the civil registry to ma'e it appear in the birth records that a certain child was born to a person who is not his biological mother+ thus causing such child to lose his true identity and status.) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered+ that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country+ and that his government allows the adoptee to enter his country as his adopted child. (t) (t) B0iological 2arentsC refer to the child@s mother and father by nature. who is emotionally and psychologically capable of caring for children+ at least si4teen (1I) years older than the adoptee+ and who is in a position to support and care for his children in 'eeping with the means of the family. (r) (r) BKicensed Social Aor'erC refers to one who possesses a degree in bachelor of science in social wor' as a minimum educational reDuirement and who has passed the government licensure e4amination for social wor'ers as reDuired by Republic !ct *o.) continuous years immediately prior to the filing of a petition for adoption and which is maintained until the adoption decree is entered. or (ii) one who see's to adopt the legitimate child of his 3ilipino spouse. (. =. UP LAW BAROPS 2007 58 of 95 ONE UP LAW . (u) (u) B2re-!doption ServicesC refer to psycho-social services provided by professionally-trained social wor'ers of the )epartment+ the social services units of local governments+ private and government health facilities+ 3amily $ourts+ licensed and accredited child-caring and child-placement agencies and other individuals or entities involved in adoption as authori#ed by the )epartment. (p) (p) B"ome Study ReportC refers to a study made by the court social wor'er of the motivation and capacity of the prospective adoptive parents to provide a home that meets the needs of a child.. (v) (v) BResidenceC means a person@s actual stay in the 2hilippines for three (. he reDuirement of a 1I-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee@s parent. or (ii) if one spouse see's to adopt his own illegitimate child: 2rovided+ however+ hat the other spouse has signified his consent thereto. 1n case husband and wife %ointly adopt or one spouse adopts the illegitimate child of the other+ %oint parental authority shall be e4ercised by the spouses. or (iii) if the spouses are legally separated from each other. 2rovided+ further+ hat the reDuirements on residency and certification of the alien@s Dualification to adopt in his country may be waived for the following: (i) a former 3ilipino citi#en who see's to adopt a relative within the fourth (=th) degree of consanguinity or affinity.6. or (iii) one who is married to a 3ilipino citi#en and see's to adopt %ointly with his spouse a relative within the fourth (=th) degree of consanguinity or affinity of the 3ilipino spouse. (w) (w) B!lienC refers to any person+ not a 3ilipino citi#en+ who enters and remains in the 2hilippines and is in possession of a valid passport or travel documents and visa.
and (e) (e) hat he has been living in the 2hilippines for at least three (. (6) (6) ! child not otherwise disDualified by law or these rules. parent. (J) (J) ! child whose adoption has been previously rescinded. has not been convicted of any crime involving moral turpitude. or %udicially declared available for adoption. Contents of the 0etition.) 1f the adopter is the legal guardian of the adoptee+ the petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities. (d) (d) hat he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child. Who ma* be adopted.) !n illegitimate child+ by a Dualified adopter to raise the status of the former to that of legitimacy. he reDuirements of certification of the alien@s Dualification to adopt in his country and of residency may be waived if the alien: Sec. I<. *o. or (iii) is married to a 3ilipino citi#en and see's to adopt %ointly with his spouse a relative within the fourth degree of consanguinity or affinity of the 3ilipino spouse. =) =) 1f the adopter is married+ the spouse shall be a co-petitioner for %oint adoption e4cept if: (a) one spouse see's to adopt the legitimate child of the other+ or UP LAW BAROPS 2007 59 of 95 ONE UP LAW . (b) (b) hat the petitioner is of legal age+ in possession of full civil capacity and legal rights.) continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered.) (. is of good moral character. G he petition for adoption shall be filed with the 3amily $ourt of the province or city where the prospective adoptive parents reside. 6. and is in a position to support and care for his children in 'eeping with the means of the family and has undergone pre-adoption services as reDuired by Section = of Republic !ct *o. (=) (=) ! person of legal age regardless of civil status+ if+ prior to the adoption+ said person has been consistently considered and treated by the adopters as their own child since minority. 9enue.). (c) (c) hat his country has diplomatic relations with the Republic of the 2hilippines. J. 1) 1) 1f the adopter is a 3ilipino citi#en+ the petition shall allege the following: (i) is a former 3ilipino citi#en who see's to adopt a relative within the fourth degree of consanguinity or affinity. or (ii) see's to adopt the legitimate child of his 3ilipino spouse. (b) (b) Sub-paragraph 1(b) above. I.) . (a) (a) he %urisdictional facts. G he following may be adopted: (1) (1) !ny person below eighteen (1?) years of age who has been voluntarily committed to the )epartment under !rticles 1J=+ 1JJ and 1JI of 2. or (I) (I) ! child whose biological or adoptive parents have died: 2rovided+ hat no proceedings shall be initiated within si4 (I) months from the time of death of said parents. is at least si4teen (1I) years older than the adoptee+ unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee@s . (. ?JJ7. Sec. is emotionally and psychologically capable of caring for children. 7) 7) 1f the adopter is an alien+ the petition shall allege the following: (a) (a) he %urisdictional facts.SE$. (7) (7) he legitimate child of one spouse+ by the other spouse. G he petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for change of name+ rectification of simulated birth+ voluntary or involuntary commitment of children+ or declaration of child as abandoned+ dependent or neglected.
(b) if one spouse see's to adopt his own illegitimate child and the other spouse signified written consent thereto+ or (c) if the spouses are legally separated from each other. I) I) 1f the petition prays for a change of name+ it shall also state the cause or reason for the change of name. se4+ name and citi#enship of adoptive mother and father+ and the date and place of their marriage. G 1n case the petition also see's rectification of a simulated of birth+ it shall allege that: (a) (a) 2etitioner is applying for rectification of a simulated birth. 11. (b) (b) he simulation of birth was made prior to the date of effectivity of Republic !ct *o. (b) hat the adoptee is not disDualified by law to be adopted. ?JJ7 and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date. Sec. he adoptee+ if ten (1<) years of age or over. Anne(es to the 0etition. 0. J) J) 1f the adoptee is a foundling+ the petition shall allege the entries which should appear in his birth certificate+ such as name of child+ date of birth+ place of birth+ if 'nown. (b) (b) !liases or other names by which the child has been 'nown. and (d) (d) hat the )epartment+ child-placement or child-caring agency is authori#ed to give its consent. 1f the child has no 'nown or living parents+ then the name and residence of the guardian+ if any. and (c) (c) he full name by which the child is to be 'nown. !ffidavit of consent of the following: 1. 0irth+ baptismal or foundling certificate+ as the case may be+ and school records showing the name+ age and residence of the adoptee. (c) (c) he petitioner made the simulation of birth for the best interests of the adoptee. Adoption of a foundling& an abandoned& dependent or neglected child. 1n all petitions+ it shall be alleged: (a) he first name+ surname or names+ age and residence of the adoptee as shown by his record of birth+ baptismal or foundling certificate and school records. (b) (b) he names of the parents+ if 'nown+ and their residence. ! certification of non-forum shopping shall be included pursuant to Section J+ Rule 6 of the 1886 Rules of $ivil 2rocedure. !ectification of Simulated 1irth. Sec. (c) (c) he name of the duly licensed child-placement agency or individual under whose care the child is in custody. Change of name. and Sec. G 1n case the petition also prays for change of name+ the title or caption must contain: (a) (a) he registered name of the child. he biological parents of the child+ if 'nown+ or the legal guardian+ or the child-placement agency+ child-caring agency+ or the proper government UP LAW BAROPS 2007 60 of 95 ONE UP LAW . Sec. G 1n case the adoptee is a foundling+ an abandoned+ dependent or neglected child+ the petition shall allege: (a) (a) he facts showing that the child is a foundling+ abandoned+ dependent or neglected. (d) (d) he adoptee has been consistently considered and treated by petitioner as his own child. 8. 7. (c) he probable value and character of the estate of the adoptee. G he following documents shall be attached to the petition: !. 1<. ?. (d) he first name+ surname or names by which the adoptee is to be 'nown and registered in the $ivil Registry.
E. G 1n preparing the child study report on the adoptee+ the concerned social wor'er shall verify with the $ivil Registry the real identity and registered name of the adoptee. 1f a change in the name of the adoptee is prayed for in the petition+ notice to the Solicitor General shall be mandatory. 1. (=) the date and place of hearing which shall be set within si4 (I) months from the date of the issuance of the order and shall direct that a copy thereof be published before the date of hearing at least once a wee' for three successive wee's in a newspaper of general circulation in the province or city where the court is situated. 1=. and (I) a directive to the social wor'er of the court to conduct counseling sessions with the biological parents on the matter of adoption of the adoptee and submit her report before the date of hearing. he social wor'er shall establish that the child is legally available for adoption and the documents in support thereof are valid and authentic+ that the adopter has sincere intentions and that the adoption shall inure to the best interests of the child. 1f the birth of the adoptee was not registered with the $ivil Registry+ it shall be the responsibility of the social wor'er to register the adoptee and secure a certificate of foundling or late registration+ as the case may be. and 3. Hearing. Child and Home Stud* !eports. =. 1f the adopter is an alien or residing abroad but Dualified to adopt+ the home study report by a foreign adoption agency duly accredited by the 1nter-$ountry !doption 0oard. ). G >pon satisfactory proof that the order of hearing has been published and %urisdictional reDuirements have been complied with+ the court shall proceed to hear the petition. . Sec. 1n case the adopter is an alien+ the home study report must show the legal capacity to adopt and that his government allows the adoptee to enter his country as his adopted child in the absence of the certification reDuired under Section 6(b) of Republic !ct *o.) the complete name which the adoptee will use if the petition is granted. he spouse+ if any+ of the adopter or adoptee.instrumentality which has legal custody of the child. 1f the petitioner is an alien+ certification by his diplomatic or consular office or any appropriate government agency 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 e4empted under Section =(7). (. !t the discretion of the court+ copies of the order of hearing shall also be furnished the Effice of the Solicitor General through the provincial or city prosecutor+ the )epartment and the biological parents of the adoptee+ if 'nown. ?JJ7. he illegitimate children of the adopter living with him who are ten (1<) years of age or over.<) days prior to an election. he legitimate and adopted children of the adopter and of the adoptee+ if any+ who are ten (1<) years of age or over. 2rovided+ that in case of application for change of name+ the date set for hearing shall not be within four (=) months after the last publication of the notice nor within thirty (. 1f after the conduct of the case studies+ the social wor'er finds that there are grounds to deny the petition+ he shall ma'e the proper recommendation to the court+ furnishing a copy thereof to the petitioner. "ome study report on the adopters. (J) a directive to the social wor'er of the court+ the social service office of the local government unit or any child-placing or child-caring agency+ or the )epartment to prepare and submit child and home study reports before the hearing if such reports had not been attached to the petition due to unavailability at the time of the filing of the latter. (7) the purpose of the petition.. UP LAW BAROPS 2007 61 of 95 ONE UP LAW . Sec. he newspaper shall be selected by raffle under the supervision of the E4ecutive (udge. $. G 1f the petition and attachments are sufficient in form and substance+ the court shall issue an order which shall contain the following: (1) the registered name of the adoptee in the birth certificate and the names by which the adoptee has been 'nown which shall be stated in the caption. he petitioner and the adoptee must personally appear and the former must testify before the presiding %udge of the court on the date set for hearing.. 17. and J. $hild study report on the adoptee and his biological parents. Sec. )ecree of annulment+ nullity or legal separation of the adopter as well as that of the biological parents of the adoptee+ if any. /rder of Hearing.
. 1f the child is below seven (6) years of age and is placed with the prospective adopter through a pre-adoption placement authority issued by the )epartment+ the court shall order that the prospective adopter shall en%oy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him.) . State the name by which the child is to be 'nown and registered. Sec.) the $ivil Registrar of the place where the adoptee was registered: a. 1f the adoptee is a foundling+ the court shall order the $ivil Registrar where the foundling was registered+ to annotate the decree of adoption on the foundling certificate and a new birth certificate shall be ordered prepared by the $ivil Registrar in accordance with the decree. he trial custody shall be monitored by the social wor'er of the court+ the )epartment+ or the social service of the local government unit+ or the child-placement or child-caring agency which submitted and prepared the case studies. b. to seal the original certificate of birth in the civil registry records which can be opened only upon order of the court which issued the decree of adoption. to issue a certificate of birth which shall not bear any notation that it is a new or amended certificate and which shall show+ among others+ the following: registry number+ date of registration+ name of child+ se4+ date of birth+ place of birth+ name and citi#enship of adoptive mother and father+ and the date and place of their marriage+ when applicable. or c) one who is married to a 3ilipino citi#en and see's to adopt %ointly with his or her spouse the latter@s relative within the fourth (=th) degree of consanguinity or affinity. 0.) and all incidents arising after the issuance of the decree. G he $ler' of $ourt shall 'eep a boo' of adoptions showing the date of issuance of the decree in each case+ compliance by the $ivil Registrar with Section 1I(0)(. and d.<) days from receipt of the certificate of finality. 16. )uring said period+ temporary parental authority shall be vested in the adopter. Supervised . and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest. Sec.<) days from receipt of the certificate of finality. G 1f the supervised trial custody is satisfactory to the parties and the court is convinced from the trial custody report and the evidence adduced that the adoption shall redound to the best interests of the adoptee+ a decree of adoption shall be issued which shall ta'e effect as of the date the original petition was filed even if the petitioners die before its issuance. 1J. Sec. to submit to the court issuing the decree of adoption proof of compliance with all the foregoing within thirty days from receipt of the decree. 1I. ensure that all measures to strengthen the family have been e4hausted. he social wor'er shall submit to the court a report on the result of the trial custody within two wee's after its termination. he decree shall: !. to annotate on the adoptee@s original certificate of birth the decree of adoption within thirty (. UP LAW BAROPS 2007 62 of 95 ONE UP LAW . 1n case of change of name+ the decree shall be submitted to the $ivil Registrar where the court issuing the same is situated.he court shall verify from the social wor'er and determine whether the biological parent has been properly counseled against ma'ing hasty decisions caused by strain or an4iety to give up the child. !n alien adopter however must complete the I-month trial custody e4cept the following: a) a former 3ilipino citi#en who see's to adopt a relative within the fourth (=th) degree of consanguinity or affinity. he court may+ motu proprio or upon motion of any party+ reduce the period or e4empt the parties if it finds that the same shall be for the best interests of the adoptee+ stating the reasons therefor. G 0efore issuance of the decree of adoption+ the court shall give the adopter trial custody of the adoptee for a period of at least si4 (I) months within which the parties are e4pected to ad%ust psychologically and emotionally to each other and establish a bonding relationship. 1oo' of Adoptions.rial Custod*. c. 7) the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the $ivil Registrar where the child was originally registered within thirty (. 2ecree of Adoption. Erder: 1) the $ler' of $ourt to issue to the adopter a certificate of finality upon e4piration of the 1J-day reglementary period within which to appeal. or b) one who see's to adopt the legitimate child of his 3ilipino spouse.
1?. . Sec. 7J. he court shall further order the $ivil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate his original birth or foundling certificate. G he petition shall be verified and filed by the adoptee who is over eighteen (1?) years of age+ or with the assistance of the )epartment+ if he is a minor+ or if he is over eighteen (1?) years of age but is incapacitated+ by his guardian or counsel.his supersedes Rule 88 on !doption and Rule 1<< of the Rules of $ourt. "owever+ the adopter may disinherit the adoptee for causes provided in !rticle 818 of the $ivil $ode. 9enue. !ll records+ boo's and papers relating to the adoption cases in the files of the court+ the )epartment+ or any other agency or institution participating in the adoption proceedings shall be 'ept strictly confidential. Confidential Nature of 0roceedings and !ecords. &ested rights acDuired prior to %udicial rescission shall be respected. 1f the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee+ the court may+ upon proper motion+ order the necessary information to be released+ restricting the purposes for which it may be used. 71. G he adoptee+ if incapacitated+ must file the petition for rescission or revocation of adoption within five (J) years after he reaches the age of ma%ority+ or if he was incompetent at the time of the adoption+ within five (J) years after recovery from such incompetency. Sec.<) days from receipt of the decree. Sec. G he court shall issue an order reDuiring the adverse party to answer the petition within fifteen (1J) days from receipt of a copy thereof. Sec. G 1f the court finds that the allegations of the petition are true+ it shall render %udgment ordering the rescission of adoption+ with or without costs+ as %ustice reDuires. 7<. !epeal. Service of :udgment. 1t shall also order the adoptee to use the name stated in his original birth or foundling certificate.ime %ithin %hich to file petition. Salient +eature" f t4e Rule • he issue of simulated birth of the adoptee and the declaration that the child is abandoned+ dependent and neglected must first be ta'en up in separate proceedings+ and a favorable decision is reDuired before the adoption process can be pursued. he court shall further declare that successional rights shall revert to its status prior to adoption+ as of the date of %udgment of %udicial rescission. he court shall order that the parental authority of the biological parent of the adoptee+ if 'nown+ or the legal custody of the )epartment shall be restored if the adoptee is still a minor or incapacitated and declare that the reciprocal rights and obligations of the adopter and the adoptee to each other shall be e4tinguished. 7=. /rder to Ans%er. 77. Sec. UP LAW BAROPS 2007 63 of 95 ONE UP LAW .. :udgment. 18. 7. he adoption may be rescinded based on any of the following grounds committed by the adopter: 1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling. . he $ler' of $ourt shall enter the compliance in accordance with Section 16 hereof. .) se4ual assault or violence. !doption+ being in the best interests of the child+ shall not be sub%ect to rescission by the adopter. he order and copy of the petition shall be served on the adverse party in such manner as the court may direct.<) days from receipt of the certificate of finality. Sec.Sec. G ! certified true copy of the %udgment together with a certificate of finality issued by the 0ranch $ler' of the $ourt which rendered the decision in accordance with the preceding Section shall be served by the petitioner upon the $ivil Registrar concerned within thirty (. or =) abandonment or failure to comply with parental obligations. SE$. 7) attempt on the life of the adoptee. G he petition shall be filed with the 3amily $ourt of the city or province where the adoptee resides. !escission of Adoption of the Adoptee. he $ivil Registrar shall forthwith enter the rescission decree in the register and submit proof of compliance to the court issuing the decree and the $ler' of $ourt within thirty (. G !ll hearings in adoption cases+ after compliance with the %urisdictional reDuirements shall be confidential and shall not be open to the public.
§1? provides for confidentiality of records. his rule also insures harmony between the spouses. specifies the role of the social wor'er G prepare the child and home study reports on the adoptee and the adopter. Ahere the trial custody had not yet begun or had already been completed at the time of a Duasi-delict committed by the child to be adopted+ the adopting parents cannot assume any liability therefor. UP LAW BAROPS 2007 64 of 95 ONE UP LAW . Applicabilit*. INTERCO(NTRY ADOPTION (R(LES (NDER AM 82C5C82 %A(G(ST 2262882 =. CA %102. Re7uire9ent f C n"ent t t4e A! #ti n • §8+ R! ?JJ7 enumerates the persons whose consent is necessary to the !doption • Can$ /. InterCC untr. §1I specifies the contents of the decree and the duties of the $E$ and the office of the civil registrar §16 provides that all matters relative to the adoption and all the incidents arising after the issuance of the decree shall be recorded in a boo' of adoption 'ept by the $E$ of the 3amily $ourt.• • • • • • • he rule consolidates actions for declaration of abandonment+ change of name+ rectification of simulated birth. and c) ta'e all measures to ensure that the placement arising therefrom does not result in improper financial gain for those involved. Re7uire9ent f ' int A! #ti n b. G he following sections apply to inter-country adoption of 3ilipino children by foreign nationals and 3ilipino citi#ens permanently residing abroad. proceedings have been laid down in the Sections ?-1< of the Rule. /bjectives. §1. CA %102. • Ta9ar$ /. !urin$ Trial Peri ! • 2arental authority is provisionally vested in the adopting parents during the period of trial custody i. Parental Aut4 rit. §1J provides for supervised trial custody of the child and grants authority to the courts to reduce the period or e4empt the parties as called for the best interests of the adoptee. G he State shall: a) a) consider inter-country adoption as an alternative means of child care+ if the child cannot be placed in a foster or an adoptive family or cannot+ in any suitable manner+ be cared for in the 2hilippines. @u"ban! an! Eife • >nder the new law+ %oint adoption by husband and wife is mandatory and this is in consonance with the concept of %oint parental authority over the child.residence and name of the adoptee %Cru: /. 76. 1n the conte4t of adoption+ it imports any conduct of the parent which evinces a settled purpose to forgo all parental duties and relinDuish all parental claims to the child. H6 specifies the form and contents of the petition. 7?. 'uri"!icti nal Re7uire9ent. !ccordingly+ his natural parents should be %oined as indispensable parties to the suit for damages. 1n all other cases+ the notice to the ESG is within the discretion of the court. o he discretion to approve adoption proceedings is not to be anchored solely on best interest of the child but li'ewise+ with due regard to the natural rights of the parents over the child. 2hysical estrangement alone does not necessarily amount to abandonment. !llegations of abandonment in the petition for adoption without the written consent of the alleged parent sufficiently vested the court with %urisdiction since abandonment of the child by his natural parents is one of the circumstances which our statutes and %urisprudence dispense with the reDuirement of written consent to the adoption of their minor children. CA %122. o Aban! n & forsa'e or renounce utterly. Sec. o Ahen the petition includes a prayer for change of name+ notice to the ESG is mandatory (§17). 7I. *o consent is necessary when a child has been declared abandoned by an un'nown parent+ or when the parent is insane or hopelessly intemperate.e. SE$. b) ensure that the child sub%ect of inter-country adoption en%oys the same protection accorded to children in domestic adoption. CA6 %152. Re#ublic %5522 • 1t is generally held that a petition will confer %urisdiction if it substantially complies with the adoption statute+ alleging the necessary facts to give the court %urisdiction • Re#ublic /. "owever+ a mere clerical error in the name of the adoptee is not fatal to the decree of adoption. Where to 5ile 0etition. • Can$ /. A! #ti n Sec. Since they have actual custody. he reDuirements in the . before the grant of the adoption decree. G ! verified petition to adopt a 3ilipino child may be filed by a foreign national or 3ilipino citi#en permanently residing abroad with the 3amily $ourt having %urisdiction over the place where the child resides or may be found.
?<=. c) c) Sworn statement of consent of petitioner@s biological or adopted children above ten (1<) years of age. g) g) $haracter reference from the local churchLminister+ the petitioner@s employer and a member of the immediate community who have 'nown the petitioner for at least five (J) years. and i) i) that he possesses all the Dualifications and none of the disDualifications provided in this Rule+ in Republic !ct *o. a) a) 0irth certificate of petitioner. . f) f) that he can provide the proper care and support and instill the necessary moral values and e4ample to all his children+ including the child to be adopted.1. g) g) that he agrees to uphold the basic rights of the child+ as embodied under 2hilippine laws and the >. h) h) 3ull body postcard-si#e pictures of the petitioner and his immediate family ta'en at least si4 (I) months before the filing of the petition. Sec. f) f) 2olice clearance of petitioner issued within si4 (I) months before the filing of the petitioner. d) d) 2hysical+ medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist. Anne(es. !ll documents must be written and officially translated in English. Who ma* be adopted. h) h) that he comes from a country with which the 2hilippines has diplomatic relations and whose government maintains a similarly authori#ed and accredited agency and that adoption of a 3ilipino child is allowed under his national laws. UP LAW BAROPS 2007 65 of 95 ONE UP LAW . !ll matters relating to inter-country adoption must pass through the 1$!0. Sec. • he petition must specifically allege the Dualifications of the adopter. *.he petition for adoption shall contain the following anne4es written and officially translated in English: Salient +eature" f t4e Rule• 1t clearly provides that it applies only to inter-country adoption of 3ilipino children by foreign nationals and 3ilipino citi#ens permanently residing abroad. b) b) if married+ the name of the spouse who must be %oined as co-petitioner e4cept when the adoptee is a legitimate child of his spouse. 78. Sec.<. c) c) that he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws+ and has undergone the appropriate counseling from an accredited counselor in his country. Contents of 0etition. • • he law created the 1nter-$ountry !doption 0oard (1$!0) to act as the central authority in matters relating to inter-country adoption. • 1t clarifies a legally free adopted child to be one who was voluntarily or involuntarily committed to the )SA). and in all other applicable 2hilippine laws.. $onvention on the Rights of the $hild+ and to abide by the rules and regulations issued to implement the provisions of Republic !ct *o. G Enly a child legally available for domestic adoption may be the sub%ect of inter-country adoption. . . ?<=.1t may be filed directly with the 1nter-$ountry !doption 0oard. d) d) that he has not been convicted of a crime involving moral turpitude. e) e) that he is eligible to adopt under his national law. G he petitioner must allege: a) a) his age and the age of the child to be adopted+ showing that he is at least twenty-seven (76) years of age and at least si4teen (1I) years older than the child to be adopted at the time of application+ unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent+ in which case the age difference does not apply. he only provision in the 1nter-$ountry !doption !ct which allows the courts to participate is in §1< wherein courts may receive the application+ assess the Dualification of the prospective adopter and then refer its findings+ if favorable to the 1$!0. e) e) 1ncome ta4 returns or any authentic document showing the current financial capability of the petitioner. b) b) 5arriage contract+ if married+ and+ if applicable+ the divorce decree+ or %udgment dissolving the marriage. • So as not to e4pose the petitioner to unnecessary e4pense and delay+ the proposed rule provides that the court+ after finding the petition is sufficient in form and substance and is a proper case for inter-country adoption shall immediately transmit the petition to the 1$!0 for appropriate action.
*o child under seven years of age shall be separated from the mother+ unless the court finds compelling reasons to order otherwise.+ 3$ he decree of legal separation shall have the following effects: (1) the spouses shall be entitled to live separately from each other but the marriage bond shall not be severed. • >nder !rt. 1f+ upon such hearing+ it appears that both parents are improper persons to have the care+ custody+ and control of the child+ the court may either designate the paternal or maternal grandparent of the child+ or his oldest brother or sister+ or some reputable and discreet person to ta'e charge of such child+ or commit it to any suitable asylum+ children. Of Min r" UP LAW BAROPS 2007 66 of 95 ONE UP LAW . R(LE ON C(STODY O+ MINORS AND ERIT O+ @A=EAS CORP(S IN RELATION TO C(STODY O+ MINORS Ahere there are no proceedings for the annulment of marriage or declaration of nullity or legal separation+ the applicable rule would be the following: A. R(LES ON C(STODY O+ C@ILDREN %+OR COMMITMENT O+ C@ILDREN6 SEE APPENDIK F=G2 Ahen husband and wife are divorced or living separately and apart from each other+ and the Duestion as to the care+ custody+ and control of a child or children of their marriage is brought before a $ourt of 3irst 1nstance by petition or as an incident to any other proceeding+ the court+ upon hearing the testimony as may be pertinent+ shall award the care+ custody+ and control of each such child as will be for its best interest+ permitting the child to choose which parent it prefers to live with if it be over ten years of age+ unless the parent so chosen be unfit to ta'e charge of the child by reason of moral depravity+ habitual drun'enness+ incapacity+ or poverty. !n adoption created under the law of a foreign country is entitled to registration in the corresponding civil register of the 2hilippines. 8. Of Min r" An! Erit Of @abea" C r#u" In Relati n T Cu"t !. !ppeal. he effects of such adoption shall be governed by the law of the 2hilippines. I. he $ourt shall ta'e into account all relevant considerations+ especially the choice of the child over seven years of age+ unless the parent chosen is unfit. • >nder the 3amily $ourts !ct of 1886+ cases involving the custody of minors is within the orignal and e4clusive %urisdiction of 3amily $ourts.+ $$ the best interest of the child can override procedural rules and even the rights of parents to the custody of their children. Effect" f A! #ti n • >nder !rt 1?8+ 3$: 3or civil purposes+ the adopted shall be deemed the legitimate child of the adopters and both shall acDuire the reciprocal rights and obligations arising from the relationship of parent and childL he parental authority of the parents by nature shall terminate and be vested in the adopters he adopted shall remain an intestate heir of his parents and other blood relatives. *o child under seven years of age shall be separated from its mother+ unless the court finds there are compelling reasons therefor.) the custody of minor children shall be awarded to the innocent spouse+ sub%ect to the provisions of !rt 71. T44 (. may be its custodian+ and may ma'e any order that is %ust and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. • he right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide their children with adeDuate support+ education+ moral+ intellectual and civic training and development. • Re#ublic /. *E E: the rule on !doption did not repeal sections I and 6 of Rule 88 Sec. he court may in conformity with the provisions of the $ivil $ode order either or both parents to support or help support said child+ irrespective of who Sub"tanti/e =a"i" • !rticle I.s home+ or benevolent society. • he sole and foremost consideration is the physical+ education+ social and moral welfare of the child concerned+ ta'ing into account the respective resources and social and moral situations of the contending parents. of the $ivil $ode • !rt 71. • Rights of a legitimate child given to an adopted person do not include the acDuisition of the citi#enship of the adopter !cDuisition of citi#enship parta'es of the character of naturali#ation which is not regulated by the civil code he framers of the civil code does not intend to regulate political Duestions.C8?C8?CSC Rule On Cu"t !. .+ $ivil $ode 1n case of separation of parents+ parental authority shall be e4ercised by the parent designated by the court. • Marcai!a /. E n$ %122. N . 2roceedings as to child whose parents are separated. • 2arental authority and responsibility are inalienable and may not be transferred or renounced e4cept in cases authori#ed by law. A$lubat %572. • the relationship established is limited solely to the adopter and the adopted and does not e4tend to the relatives of the adopting parents or the adopted child. he change of surname of the adopted child is more of an incident rather than the ob%ect of an adoption.I.M. Either parent may appeal from an order made in accordance with the provisions of this section.
SE$. the unlawful deprivation of the custody of a minor+ or 7. his rule shall apply to petitions for custody of minors and writs of habeas corpus in relation thereto. SE$. Summons. 7. • he case study report may include the family relationships+ educations+ environmental+ emotional+ psychological and spiritual profiles of the minor+ the person claiming rightful custody of the minor and the person opposing the same. 5otion to )ismiss. *otice of mandatory pre-trial. and (d) Such other matters which are relevant to the custody of the minor. . =.) reDuiring the respondent to present the minor before the court. Pur# "e. • • cu"t !. $ontents of pre-trial brief UP LAW BAROPS 2007 67 of 95 ONE UP LAW . (7) directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure receipt thereof by the adverse party at least three days before the date of pre-trial. SE$. J. I. and (.to ensure that respondent will file the answer promptly. he respondent shall file an answer to the petition+ personally verified by him+ within five days after service of summons and a copy of the petition. Ahere to file petition. 6. &erified !nswer.so that the litigation does not become protracted with the unnecessary filing+ for e4ample+ of motion of dismiss+ bills of particulars and other such pleadings+ which could be elevated to the appellate courts by certiorari. $ase study. he verified petition shall be accompanied by a certificate against forum shopping+ which the petitioner must sign personally. he Rules of $ourt shall apply suppletorily. • • made Service of the summons with the copy of the petition is to be n t4e re"# n!ent 4i9"elf. he party against whom it may be filed shall be designated as the respondent. (c) he material operative facts constituting deprivation of custody. 1f the court is satisfied that the petition is sufficient in form and substance+ it shall direct the cler' f c urt to issue summons+ which shall be served together with a copy of the petition personally on the respondent. personal service on respondent. • he phrase Bany person claiming rightful custodyC is broad enough to cover the following: 1.SE$ 1E* 1. he verified petition shall allege the following: (a) he personal circumstances of the petitioner and of the respondent. he notice of its order shall be served separately on both the parties and their respective counsels. ?. SE$. Aithin fifteen days after the filing of the answer or the e4piration of the period to file answer+ the court shall issue an order: (1) fi4ing a date for the pre-trial conference. >pon the filing of the verified answer or the e4piration of the period to file it+ the court may order a social wor'er to ma'e a case study of the minor and the parties and to submit a report and recommendation to the court at least three days before the scheduled pre-trial. he petition for custody of minors shall be filed with the 3amily $ourt of the province or city where the petitioner resides or where the minor may be found. duty of social wor'er. ! verified petition for the rightful custody of a minor may be filed by any person claiming such right. f Pur# "e.. SE$. SE$. which parent shall have the care and custody of a minor+ when such parent is in the midst of nullity+ annulment or legal separation proceedings. • 1n any event+ Rule 1=+ 1886 Rules of $ivil 2rocedure+ as amended+ applies suppletority. ! motion to dismiss the petition is not allowed e4cept on the ground of lac' of %urisdiction over the sub%ect matter or over the parties. SE$. 2etition for custody of minors. 8. $ontents of petition. SE$. who may file. 1<. !pplicability. SE$. !ny other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. are t he c 9#lete fact" c n"titutin$ !e#ri/ati n be alle$e! by the pleader. (b) he name+ age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent. he pre-trial is mandatory.
3ailure to file the pre-trial brief or to comply with its reDuired contents shall have the same effect as failure to appear at the pre-trial. (b) Either parent+ ta'ing into account all relevant considerations+ especially the choice of the minor over seven years of age and of sufficient discernment+ unless the parent chosen is unfit.(a) 1f the petitioner fails to appear personally at the pre-trial+ the case shall be dismissed+ unless his counsel or a duly authori#ed representative appears in court and proves a valid e4cuse for the non-appearance of the petitioner. (c) he grandparent+ or if there are several grandparents+ the grandparent chosen by the minor over seven years of age and of sufficient discernment+ unless the grandparent chosen is unfit or disDualified. he court shall then render %udgment on the basis of the pleadings and the evidence thus presented. 3actors to consider in determining custody. 1f the parties fail to agree+ the court may refer the matter to a mediator who shall have five days to effect an agreement between the parties. !t the pre-trial+ the parties may agree on the custody of the minor. SE$. (e) he actual custodian of the minor over twenty-one years of age+ unless the former is unfit or disDualified. 2. 1n the fir"t "ta$e6 t4e #artie" 9a. SE$.the case shall be SE$. 1. c n"i!er "uc4 t4er 9atter" a" 9a. • • If t4e #etiti ner fail" t dismissed a##ear at t4e #reCtrial. (d) he disputed factual and legal issues. Ahat may be done at pre-trial. (e) !ll the evidence to be presented+ briefly stating or describing its nature and purpose. 1f this li'ewise does not produce an amicable settlement the court will proceed with the #reCtrial c nference w4ere it 9a.s testimony on direct e4amination. (b) ! concise statement of their respective claims together with the applicable laws and authorities. Effect of failure to appear at the pre-trial. SE$.. (b) he desire and ability of one parent to foster an open and loving relationship between the minor and the other parent. f t4e 9in r. he parties may reach a settlement even before attending the pre-trial. 2rovisional order awarding custody. hereafter+ the court may proceed to render %udgment based on the pleadings filed and the evidence submitted. Er+ they may reach an agreement in court itself. 1f the issue is not settled through mediation+ the court shall proceed with the pre-trial conference+ on which occasion it shall consider such other matters as may aid in the prompt disposition of the petition. 1f during the pr-trial it appears that no such settlement is forthcoming+ the trial court will direct the parties to secure the services of the mediator. he best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival+ protection+ and feelings of security of the minor encouraging to his physical+ psychological and emotional development. • here are two stages in pre-trial: 1. 1=. UP LAW BAROPS 2007 68 of 95 ONE UP LAW . (d) he eldest brother or sister over twenty-one years of age+ unless he or she is unfit or disDualified. (c) !dmitted facts and proposed stipulations of facts. a$ree t t4e cu"t !. (c) he health+ safety and welfare of the minor. !fter an answer has been filed or after e4piration of the period to file it+ the court may issue a provisional order awarding custody of the minor.he pre-trial brief shall contain the following: (a) ! statement of the willingness of the parties to enter into agreements that may be allowed by law+ indicating its terms.the petitioner will be allowed to present his evidence e4 parte. 1t also means the least detrimental available alternative for safeguarding the growth and development of the minor. ai! in t4e #r 9#t !i"# "iti n f t4e #etiti n. 1n awarding custody+ the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. 11. 17. and (g) Such other matters as the court may reDuire to be included in the pre-trial brief. (f) he number and names of the witnesses and their respective affidavits which shall serve as the affiant. he court shall also consider the following: (a) !ny e4tra%udicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non-custodial parent on a regular basis+ e4cept when there is an e4isting threat or danger of physical+ mental+ se4ual or emotional violence which endangers the safety and best interests of the minor. or (f) !ny other person or institution the court may deem suitable to provide proper care and guidance for the minor. (b) 1f the respondent has filed his answer but fails to appear at the pre-trial+ the petitioner shall be allowed to present his evidence e4 parte. !s far as practicable+ the following order of preference shall be observed in the award of custody: (a) 0oth parents %ointly. %!) !ny history of child or spousal abuse by the person see'ing custody or who If t4e re"# n!ent fail" t a##ear at t4e #reCtrial.
1I.6 r welfare f t4e 9in r* (d) o permit a parent+ or a party entitled to visitation by a court order or a separation agreement+ to visit the minor at stated periods. emporary visitation rights. and (f) o comply with such other orders as are necessary for the protection of the minor. (d) he date of the hold departure order. (udgment. notice of any plan to change the residence of the minor or ta'e him out of his residence for more than three days provided it does not pre%udice the visitation rights of the non-custodial parent or parents. (e) o permit a designated party to enter the residence during a specified period of time in order to ta'e personal belongings not contested in a proceeding pending with the 3amily $ourt. SE$. (c) he specific nature of the case. SE$.C 1t also means Bthe least detrimental available alternative for safeguarding the growth and development of the minor. (b) he complete title and doc'et number of the case in which the hold departure order was issued. he court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents+ unless the court finds said parent or parents unfit or disDualified. %c2 T refrain fr 9 act" f c 99i""i n r 9i""i n t4at create an unrea" nable ri"A t t4e 4ealt46 "afet. (e) he nature and freDuency of contact with both parents. he temporary custodian shall give the court and non-custodial parent or parents at least five days.has had any filial relationship with the minor+ including anyone courting the parent. and (i) he preference of the minor over seven years of age and of sufficient discernment+ unless the parent chosen is unfit. 1?. he court may recall the hold departure order motu proprio+ or upon verified motion of any of the parties after summary hearing+ sub%ect to such terms and conditions as may be necessary for the best interests of the minor. he 3amily $ourt issuing the hold departure order shall furnish the )epartment of 3oreign !ffairs and the 0ureau of 1mmigration and )eportation of the )epartment of (ustice a copy of the hold departure order within twenty-four hours from its issuance and through the fastest available means of transmittal. UP LAW BAROPS 2007 69 of 95 ONE UP LAW . SE$. and (e) ! recent photograph+ if available+ of the party against whom a hold departure order has been issued or whose departure from the country has been en%oined. • SE$. (h) he most suitable physical+ emotional+ spiritual+ psychological and educational environment for the holistic development and growth of the minor. 1J. 16.C he minor child sub%ect of the petition shall not be brought out of the country without prior order from the court while the petition is pending. (b) o cease and desist from harassing+ intimidating+ or threatening such minor or the other parent or any person to whom custody of the minor is awarded. 2rotection Erder. he court may issue a 2rotection Erder reDuiring any person: (a) o stay away from the home+ school+ business+ or place of employment of the minor+ other parent or any other party+ or from any other specific place designated by the court. (f) "abitual use of alcohol+ dangerous drugs or regulated substances. "old )eparture Erder. he court+ motu proprio or upon application under oath+ may issue e4 parte a hold departure order+ addressed to the 0ureau of 1mmigration and )eportation+ directing it not to allow the departure of the minor from the 2hilippines without the permission of the court. he hold departure order shall contain the following information: (a) he complete name (including the middle name)+ the date and place of birth+ the nationality and the place of last residence of the person against whom a hold departure order has been issued or whose departure from the country has been en%oined. (g) 5arital misconduct. • • 1n all cases+ the be"tCintere"tC f&t4e&9in r is the yardstic' to be used by the court in granting custody. F=e"t intere"t"G is defined to be Bthe totality of the circumstances and conditions as are most congenial to the survival+ protection+ and feelings of security of the minor and most encouraging to his physical+ psychological and emotional development.
following its publication in a newspaper of general circulation not later than !pril . "owever+ the petition may be filed with the regular court in the absence of the presiding %udge of the 3amily $ourt+ provided+ however+ that the regular court shall refer the case to the 3amily $ourt as soon as its presiding %udge returns to duty.. SE$. 7<. !ny writ issued by the family court+ as a result of such filing+ is enforceable only within its territorial %urisdiction. he writ issued by the 3amily $ourt or the regular court shall be enforceable in the %udicial region where they belong. and (=) the non-monetary contributions that the parents would ma'e toward the care and well-being of the minor. he writ shall be enforceable within its %udicial region to which the 3amily $ourt belongs. . he petition may li'ewise be filed with the Supreme $ourt+ $ourt of !ppeals+ or with any of its members and+ if so granted+ the writ shall be enforceable anywhere in the 2hilippines. of children. (. (7) the physical and emotional health+ special needs+ and aptitude of the minor. • UP LAW BAROPS 2007 70 of 95 ONE UP LAW . 18. G *o appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of %udgment. >pon return of the writ+ the court shall decide the issue on custody of minors. 2etition for writ of habeas corpus.!fter trial+ the court shall render %udgment awarding the custody of the minor to the proper party considering the best interests of the minor. !n aggrieved party may appeal from the decision by filing a *otice of !ppeal within fifteen days from notice of the denial of the motion for reconsideration or new trial and serving a copy thereof on the adverse parties. 1n determining the amount of support+ the court may consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the minor. he petition may also be filed with the appropriate regular courts in places where there are no 3amily $ourts. 71. 1n its %udgment+ the court may order either or both parents to give an amount necessary for the support+ maintenance and education of the minor+ irrespective of who may be its custodian. N te. he hearings on custody of minors may+ at the discretion of the court+ be closed to the public and the records of the case shall not be released to non-parties without its approval. he appellate court+ or the member thereof+ issuing the writ "4all be furni"4e! a c #. his Rule shall ta'e effect on 5ay 1J+ 7<<. $onfidentiality of proceedings. !ppeal. 77. '(RISDICTION O+ CO(RT O+ APPEALS TO ISS(E ERIT O+ @A=EAS CORP(S • T4e +a9il. f t4e !eci"i n. C urt" Law w4ic4 /e"te! +a9il. !n ordinary petition for habeas corpus should be filed in the regular court. SE$. he court may also issue any order that is %ust and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody.) the standard of living the minor has been accustomed to. 1f it appears that both parties are unfit to have the care and custody of the minor+ the court may designate either the paternal or maternal grandparent of the minor+ or his oldest brother or sister+ or any reputable person to ta'e charge of such minor+ or commit him to any suitable home for children.the writ is issued by a 3amily $ourt only in relation to custody of minors. C urt" with original and e4clusive %urisdiction in the custody of children and to issue writs of habeas corpus in relation thereto 4a/e n t !i/e"te! t4e C urt f A##eal" 9uc4 le"" t4e Su#re9e C urt f it" Buri"!icti n t i""ue writ" f 4abea" c r#u" in/ l/in$ t4e ri$4tful cu"t !. Effectivity. ! verified petition for a writ of habeas corpus involving custody of minors shall be filed with the 3amily $ourt. he writ may be made returnable to a 3amily $ourt or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. SE$.<+ 7<<. SE$. • Ahere it appears that a minor is being 'ept from a parent by the other parent+ or in similar situations involving other parties+ and time is of the essence+ the party see'ing rightful custody of the minor may file a /erifie! #etiti n f r 4abea" c r#u" with the 3amily court.
Ahen the parents of any minor child are dead+ or by reason of long absence or legal or physical disability have abandoned it+ or cannot support it through vagrancy+ negligence+ or misconduct+ or neglect or refuse to support it+ or treat it with e4cessive harshness or give it corrupting orders+ counsels+ or e4amples+ or cause or allow it to engage in begging+ or to commit offenses against the law+ the proper $ourt of 3irst 1nstance+ upon petition filed by some reputable resident of the province setting forth the facts+ may issue an order reDuiring such parents to show cause+ or+ if the parents are dead or cannot be found+ reDuiring the fiscal of the province to show cause+ at a time and place fi4ed in the order+ why the child should not be ta'en from its parents+ if living. $!: B1t is worthy to note that the ground upon which respondent 5anese filed her motion to dismiss is erroneous since the Duestion as to who shall have the custody of the child can be sufficiently resolved in the petition for writ of habeas corpus pursuant to Rule 1<7+ Revised Rules of $ourt without the necessity of filing a separate action under Rule 88 of the said rules for that purposeYC ?. Art.s home+ or benevolent society or person to be ultimately placed+ by adoption or otherwise+ in a home found for it by such asylum+ children. c. . T@E C@ILD AND YO(T@ EEL+ARE CODE Art.. NOTES• his provision contemplate a situation when parents of any minor child are: a. and committing it to any suitable orphan asylum+ children. Art. Ca"e Stu!.1t shall be the duty of the )epartment of Social Aelfare to ma'e a case study of every child who is the sub%ect of guardianship or custody proceedings and to submit its report and recommendations on the matter to the court for its guidance. 22. • • Secti n >26 Article II f t4e C n"tituti n. if such parents are dead or cannot be found+ reDuiring the fiscal of the province to show cause • 1f upon hearing+ it appears the allegations in the petition are true+ the court may ma'e an order: a. i""ue an r!er a. reDuiring such parents to show cause+ or b. C he dependent+ abandoned or neglected child may be transferred to the care of the )epartment of Social Aelfare or a duly licensed child-caring institution or individual in accordance with !rticles 1=7 and 1J= of this $ode+ or upon the reDuest of the person or institution e4ercising parental authority over him. Art. • he State therefore steps in at this point with an array of laws to Bdefend the right of children to special protection from all forms of neglect+ abuse+ cruelty+ e4ploitation and other conditions pre%udicial to their development. PROCEEDINGS AS TO )AGRANT OR A=(SED C@ILD %Rule 116 Sec. RATIONALE O+ T@E R(LE ON C(STODY OI+ MINORS AND ERIT O+ @A=EAS CORP(S IN RELATION TO C(STODY O+ MINORS • b. De#en!ent6 Aban! ne! r Ne$lecte! C4il!. C A" u"e! in t4i" C4a#ter- UP LAW BAROPS 2007 71 of 95 ONE UP LAW . e. 6. 72 Sec. 2roceedings as to vagrant or abused child. 2. ta'ing the child from its parents+ and b.F he State recogni#es the sanctity of family life and shall protect and strengthen the family as a basic social institution.s home+ society or person. 2>. PRESIDENTIAL DECREE NO. >?>. • !t present however+ many marriages are being dissolved legally with other married couples being separated legally and de facto. and if upon the hearing it appears that the allegations of the petition are true+ and that it is for the best interest of the child+ the court may ma'e an order ta'ing it from its parents+ if living. d. C he dependent+ abandoned or neglected child shall be under the parental authority of a suitable or accredited person or institution that is caring for him as provided for under the four preceding articles+ after the child has been declared abandoned by either the court or the )epartment of Social Aelfare. dead+ or 1n such cases+ t4e #r #er RTC6 upon petition filed by some reputable resident of the province setting forth the facts+ 9a. f. 3rom the time of such transfer+ the )epartment of Social Aelfare or the duly licensed child-caring institution or individual shall be considered the guardian of the child for all intents and purposes. 3. Definiti n f Ter9". by reason of long absence or physical disability have abandoned it+ or cannot support it through vagrancy+ negligence or misconduct+ or neglect or refuse to supprt it+ or treat it with e4cessive harshness+ or give it corrupting orders+ counsels or e4amples+ or cause to allow it to engage in begging+ or to commit offenses against the law. 58. committing it to any suitable orphan asylum+ children@s home or benevolent society or person to be ultimately placed+ by adoption or otherwise+ in a home found for it by such asylum+ children@s home+ society or person.he issue of child custody may be tac'led by the 3amily $ourt without need of a separate petition for custody being filed+ following the ruling in Suare# vs. he victims+ are of course+ the children. Tran"fer t t4e De#art9ent f S cial Eelfare..
R(LE >88 RECISSION AND RE)OCATION O+ ADOPTION • • the court has no %urisdiction to annul+ after the period fi4ed by the rule+ a decree of adoption validity of the adoption can only be attac'ed in a direct proceeding frontally addressing the issue UP LAW BAROPS 2007 72 of 95 ONE UP LAW .he ne% adoption la% deleted from the la% the right of adopters to rescind a decree of adoption. No%& onl* the adoptee ma* rescind.+ tainted with fraud. (7) !n abandoned child is one who has no proper parental care or guardianship+ or whose parents or guardians have deserted him for a period of at least si4 continuous months. 2eriod: within J years after he reaches the age of ma%ority of within J years after the recovery from such incompetency. *eglect may occur in two ways: a) here is a physical neglect when the child is malnourished+ ill clad and without proper shelter. (see §1. public welfare b. or are made to beg in the streets or public places+ or when children are in moral danger+ or e4posed to gambling+ prostitution and other vices. C 99it9ent f a C4il!. >?2. Art. (udicial rescission of the adoption shall e4tinguish all reciprocal rights and obligations between the adopters and the adopted. (=) $ommitment or surrender of a child is the legal act of entrusting a child to the care of the )epartment of Social Aelfare or any duly licensed child placement agency or individual. 1. • • • • • • • • a finding that the reDuisite %urisdictional facts e4ists cannot be Duestioned in a collateral proceeding.)enue. Petiti n f r In/ luntar.applicable only when the hospitali#ation of the insane person is for: a. . ! child is unattended when left by himself without provisions for his needs andLor without proper supervision.(1) ! dependent child is one who is without a parent+ guardian or custodian. he discretion should be e4ercised in accordance with the best interests of the child+ as long as the natural rights of the parents over the child are not disregarded.) ! neglected child is one whose basic needs have been deliberately unattended or inadeDuately attended. welfare of person who in the %udgment of the director of health is insane+ if the insane or the one who has charge of him is opposed to the confinement. b) Emotional neglect e4ists: when children are maltreated+ raped or seduced. 1f the adopted is still a minor+ rescission will reinstate the parental authority of the natural parents. C he )epartment of Social Aelfare Secretary or his authori#ed representative or any duly licensed child placement agency having 'nowledge of a child who appears to be dependent+ abandoned or neglected+ may file a verified petition for involuntary commitment of said child to the care of any duly licensed child placement agency or individual. >. 9enue8 0etition for commitment.=? of the *ew $ivil $ode refer only to an adoption validly decreed+ not an adoption void from the beginning i. A##licati n f t4e rule . when children are e4ploited+ overwor'ed or made to wor' under conditions not conducive to good health. R(LE >8> PROCEEDINGS +OR @OSPITALIIATION O+ INSANE PERSONS Sec. he court shall order the amendment of the records in the civil register. or one whose parents+ guardian or other custodian for good cause desires to be relieved of his care and custody. b) &oluntary commitment+ through the relinDuishment of parental or guardianship rights in the manner and form hereinafter prescribed. and is dependent upon the public for support. he grounds for revocation provided in !rticle . he petition shall be filed by the )irector of "ealth in the all cases where+ in his opinion+ such commitment is for the public welfare+ or for the welfare of said person who+ in his %udgment+ is insane+ and such person or the one having charged of him is opposed to his being ta'en to a hospital or other place for the insane. he petition shall be filed with the (uvenile and )omestic Relations $ourt+ if any+ or with the $ourt of 3irst 1nstance of the province or $ity $ourt in which the parents or guardian resides or the child is found. 1f they are incapacitated+ a guardian over the person and property of the minor will be appointed in the same proceeding.& A) <=>-<=) he approval of adoption lies in the sound discretion of the court. $ommitment may be done in the following manner: a) 1nvoluntary commitment+ in case of a dependent child+ or through the termination of parental or guardianship rights by reason of abandonment+ substantial and continuous or repeated neglect andLor parental incompetence to discharge parental responsibilities+ and in the manner+ form and procedure hereinafter prescribed. ! petition for the commitment of a person to a hospital or other place for the insane may be filed with the $ourt of 3irst 1nstance of the province where the person alleged to be insane is found.e. he adopted shall lose the right to use the surname of the adopters and shall resume his surname prior to the adoption. he petition to set aside the adoption must be filed with the family court of the cityLprovince where the adoptee resides. (.
2urpose: protection of the community at large (vs.special proceeding of summary character.? P4il 0?5. )enue .if he asserts the insanity is only occasional and intermittent+ the burden is on him to prove its e4istence at the time it is alleged. . Nature f t4e #r cee!in$" .Merca!er /.on the plaintiff who alleges insanity . & condition of the mind which is so impaired in function or so deranged as to induce deviation from normal conduct in the person so afflicted. - - he person whose liberty is sought to be restrained is entitled by law to proper notice to such proceeding and by force of statute+ other persons maybe entitled to notice. he alleged incompetent must be given adeDuate opportunity to be present and to be heard in defense of his right. =. !efine! .while it has been held that want of notice does not render the proceedings invalid and that the commitment is not sub%ect to collateral attac'+ it has also been held that want of notice renders the proceedings void or at least+ is good ground for vacating the order of %udgment.2. Ei"li:enu"6 . 7. he court shall ma'e proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed. . Pr tecti n f t4e e"tate f t4e in"ane #er" n . appointment of guardian G protection of person and estate) . Cra:ine"" n t in"anit. he court shall furthermore order the sheriff to produce the alleged insane person+ if possible+ on the date of the hearing. of "ealth may be deemed preliminary but is entirely independent and forms part of the %udicial proceedings dealing with the guardianship of insane persons he proceedings is primarily for the protection of the community at large+ whereas the proceedings for appointment of a guardian for the insane is to protect the person and the estate of the insane+ In"anit. >. >pon satisfactory proof+ in open court on the date fi4ed in the order+ that the commitment applied for is for the public welfare or for the welfare of the insane person+ and that his relatives are unable for any reason to ta'e proper custody and care of him+ the court shall order his commitment to such hospital or other place for the insane as may be recommended by the )irector of "ealth. "earing and %udgment. Ahen+ in the opinion of the )irector of "ealth+ the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured+ or may be released without danger he may file the proper petition with the $ourt of 3irst 1nstance which ordered the commitment.R $ of province where the person alleged to be insane is found 3. Relea"e f t4e in"ane #er" n UP LAW BAROPS 2007 73 of 95 ONE UP LAW .condition of mind which is so impaired in function or so deranged as to induce a deviation from normal conduct . Sec. 1t is the duty of the court to protect the property pending appeal.. Sec. Nature f t4e act" f t4e !irect r . =ur!en f #r f . )!a !e Inc4au"ti6 ?8 P4il 38?.. Aant of notice renders the proceedings void or at least+ is ground for vacating the order of commitment he time of notice must be reasonable under the circumstances of the particular case. )ischarge of insane. >.rd party to appear and show cause why he should not deliver to the guardian property of the lunatic alleged to be unlawfully in said party@s possession.the popular meaning of Zcra#y@ is not synonymous to the legal terms insane+ non compos mentis+ unsound mind+ idiot or lunatic. Ri$4t f in"ane #er" n t n tice an! 4earin$ . . In"anit. Nature f t4e #r cee!in$" . 'uri"!icti n an! /enue f #r cee!in$" f r re"t rati n f ca#acit.general rule: the application should be made to court in which the proceedings were had resulting in the ad%udication of incompetency 2. /rder for hearing.Ric /.if he asserts insanity as an element of his case+ 0E2 rests on him to establish the fact+ although the presumption of sanity operates in his favor at the outset.denotes a mind that is unsound+ deranged+ delirious or distracted 5. 5ay be preliminary but is entirely independent and forms part of the %udicial proceedings . o $ra#y is not synonymous with the legal terms insane+ non compos mentis+ unsound mind+ idiot or lunatic Sec. 1ntervention of the )ir. 1f the petition filed is sufficient in form and substance+ the court+ by an order reciting the purpose of the petition+ shall fi4 a date for the hearing thereof+ and copy of such order shall be served on the person alleged to be insane+ and to the one having charge of him+ or on such of his relatives residing in the province or city as the %udge may deem proper. not a new proceeding but a continuance of the original guardianship proceeding .probate courts or courts e4ercising probate %urisdiction .pending appeal+ the $ has %urisdiction to order a . 2.*ature: police regulations ?.. . >. time of notice: reasonable under the circumstances and gives the alleged incompetent adeDuate opportunity to be preset and be heard. .
Assistance of fiscal in the proceeding. hey rarely touch the merits of the case and deal simply with the detention of the prisoner and stop with the authority by virtue of which he is detained.)illa/icenci /. In"ular C llect r f Cu"t 9"6 .speedy and effectual remedy to relieve persons from unlawful restraint .where there is a present denial of due process .although women were no longer under any official restraint and were free to change their domicile+ the $ourt condemned the involuntary restraints caused by the official action of transporting them out of )avao. a/ail f t4e writ UP LAW BAROPS 2007 74 of 95 ONE UP LAW . rule: release+ whether permanent or temporary+ renders petition for habeas corpus moot and academic .)illa/icenci / LuAban. .an inDuisition by the government .where a person continues to be unlawfully denied one or more of is constitutional freedoms . .$onstitution: privilege of writ of habeas corpus cannot be suspended E4cept in cases of invasion or rebellion when the public safety reDuires it. *o physical force is reDuired.the moment a person is acDuitted on a criminal charge he can no longer be detained or re-arrested for the same offense. Denial f c n"tituti nal ri$4t . thus+ R(LE >82 @A=EAS CORP(S Sec. 5. LuAban6 . freedom may be lost due to e4ternal moral compulsion..21.1 P4il 770. where the insane was %udicially committed to the hospital or asylum+ the )irector of "ealth cannot order his release without approval of R $ which ordered the commitment.remedy intended to determine AE* the person detained is held under lawful authority .R $ cannot order release without recommendation from )irector of "ealth Sec. E4cept as otherwise e4pressly provided by law+ the writ of habeas corpus shall e4tend to all cases of illegal confinement or detention by which any person is deprived of his liberty+ or by which the rightful custody of any person is withheld from the person entitled thereto. .Lee C4in$ /.e4amples of restrictions: 1. Gr un!" f r i""uance %a##lie" t all f r9" f in/ luntar.Tib / T4e Pr /incial C 99an!er6 03 SCRA 35?. Direct r6 .it is not physical restraint alone which is inDuired into by the writ of "$ . Arit may issue even if another remedy which is less effective may be availed of by defendant. cannot properly be used for any other purpose.sole function is to relieve from unlawful restraint. 1f the actual effect of such psychological spell is to place a person at the mercy of another+ the victim is entitled to court protection..gen. . but if court has no %urisdiction then the writ of habeas corpus should be granted ?. E4 9a. CA6 %1322 .Caunca / Sala:ar6 02 P4il 03> .8?.Ali9# " /. Petiti ner<" te9# rar.C4a/e: /.every person unlawfully imprisoned or restrained of his liberty under any pretense may prosecute a writ of habeas corpus .C4in A4 + /.e4cept: when there are restraints attached to his release which precludes freedom of action %M ncu#a / Enrile2 . .7 SCRA ?28. freedom of speech muffled by prohibition that he can not give interviews =.Gu9ab n /.. . condition that petitioner gets approval of respondents for any travel outside 5etro 5anila restricts freedom of movement 7. 1. . Enrile6 %0522 .vital purposes: obtain immediate relief from illegal confinement+ to liberate those who may be imprisoned without sufficient cause+ and to deliver them from unlawful custody %)ela"c /.employment agency has no power to curtail freedom of movement. Pur# "e . 2. J. relea"e ! e" n t ren!er #etiti n f r writ 9 t an! aca!e9ic . P4il . 1t shall be the duty of the provincial fiscal or in the $ity of 5anila the fiscal of the city+ to prepare the petition for the )irector of "ealth and represent him in court in all proceedings arising under the provisions of this rule. Nature .. C nce#ci n6 3? P4il 773. . he writ of "$ is an e4traordinary remedy must be liberally given effect so as to protect person@s liberty. Direct r f Pri" n"6 33 P4il . regular reporting to respondents reDuired .separate and distinct from the main case from which the proceedings spring. >. CA6 %502. CA6 >85 SCRA >31.Juint " /.where a deprivation of freedom originally valid has become arbitrary 3.o %hat habeas corpus e(tends. liberty of abode restricted by need for prior approval for changing residences . re"traint"6 M ncu#a /.for denial of a constitutional right to the accused+ the hearing tribunal may lose its %urisdiction and "$ would lie to obtain the release of the accused.not a suit in the technical sense: not designed to obtain redress against anybody+ no %udgment can be entered against anybody+ no real plaintiff and defendant .where the restraints are not merely involuntary but appear to be unnecessary .if defendant is convicted in court of record which has %urisdiction over the offense he may not avail of writ but his remedy is to appeal (the imprisonment here is not illegal but by due process of law).
'uri"!icti n f +a9il.. Tec4nicalit.even if the child is in the custody of the .2 1.Duestions as to who shall have the custody of a child can be sufficiently resolved in petition for writ of "$ under Rue1<7+ without need of filing a separate action under Rule88 for that purpose."$ reaches body and %urisdictional matters but not record ..for asserting or vindicating denial of right to bail S tt /.S 9b n$ /. CA6 %1?22 f certi rari f r t4e 1. appreciation of factsLappreciation of law for correcting errors in >3. he writ of habeas corpus may be granted by the Supreme $ourt+ or any member thereof+ on any day and at any time+ or by the $ourt of !ppeals or any member thereof in the instances authori#ed by law+ and if so granted it shall be enforceable anywhere in the 2hilippines+ and may be made returnable before the court or any member thereof+ or before the $ourt of 3irst 1nstance+ or any %udge thereof for the hearing and decision on the merits.because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court with competent %urisdiction. Erit ! e" n t lie w4ere t4ere i" re9e!.b. if 9in r can be re" l/e! in #etiti n f r writ %Suare: /. 1. "4 ul! n t "tan! in wa. >. 1t may also be granted by a $ourt of 3irst 1nstance+ or a %udge thereof+ on any day and at any time+ and returnable before himself+ enforceable only within his %udicial district.De =i"c4 # /. >. what matters is not the technicalities of the case but that the immoral situation disclosed by the records be not allowed to continue.Maca: /. Erit a##lie! t #er" n" "entence! t life f r /i lati n f Dan$er u" Dru$" Law but #enalt. 1.c. t #arent" t re$ain cu"t !. C urt" UP LAW BAROPS 2007 75 of 95 ONE UP LAW . 1. 9a."$ will not lie to correct errors of fact or of law Enly e4ception: when the error affects the court@s %urisdiction or is one that would ma'e the %udgment absolutely void.writs of "$ and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. 2. be c rrecte! b. 2roper remedy for reviewing proceedings for deportation of aliens Sec.Arit issued by R $ or 3amily $ourt+ enforceable only within its region. 1. writ 0. Jue"ti n f cu"t !. f 9in r c4il!ren .failure of accused to perfect appeal does not preclude recourse to the writ. Ahile "$ is a writ of right+ it will not issue as a matter of course or as mere perfunctory operation on the filing of the petition. >?. Petiti n f r @C n t #r #er 1. )ele:6 %182. =ut a" a $eneral rule6 Erit f @C cann t functi n a" a writ f err r . Direct r f Pri" n"6 %522. Min r<" welfare a" #ara9 unt c n"i!erati n .!. CA6 %152. . Re7ui"ite" f r i""uance f writ %S 9b n$ /. CA6 %152.S$+ $! and R $ have concurrent %urisdiction to issue writs of "$ . Aho may grant the writ. Erit f 4abea" c r#u" 9a.Eu$eni /. Galan$6 0 SCRA 2??.An$ele" /. CA.in custody cases involving minors+ the writ is prosecuted for the purpose of determining the right of custody if a child. "ence+ these cases are decided on the court@s view of the best interests of the child. 'u!icial !i"creti n in i""uance f writ . CA6 %1>22 .it has to be an e4ceptional case for the writ of "$ to be available to an accused before trial. . petitioner has the right to the custody over the minor 7.certiorari reaches record but not the body hus "$ [ certiorari O review >>. rather the welfare of the child is the supreme consideration. C ncurrent Buri"!icti n t i""ue writ . E. re!uce! b.a. 5inor@s welfare is paramount consideration. = 9bita %132. f $i/in$ c4il! full #r tecti n .ce""i/e "entence r #enalt. !ll competent courts may entertain petitions for "$ for this purpose+ although it is deficient in form as long as they are sufficient in substance. Arit may be granted upon a %udgment already final. Gal/e: /.writ issued by S$ and $! G enforceable anywhere in 2hilippines .rd person of his own free will enable . f a##eal . 2. E. 7. new law . 7. @C in !e# rtati n #r cee!in$" . he controversy does not involve the Duestion of personal freedom+ since an infant is presumed to be in someone@s custody until he attains ma%ority age.e. be u"e! wit4 writ #ur# "e f re/iew %Gal/e: /. that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of respondent >8. 1. the rightful custody of the minor is being withheld from the petitioner by the respondent . >2. T4e writ f @abea" C r#u" i" t4e #r #er le$al re9e!.ce#ti nal circu9"tance" nee!e! f r $rant f t4e writ . Nune:6 %312.
2.applying the last sentence of Sec= Rule 1<7+ the S$ held that the writ of "$ should not be allowed after the party sought to be released had been charged before any court. I""uance f #r ce"" . ReDuisites of application therefor. Ahat is to be inDuired into is the legality of his detention as of the filing of the application for a writ."$+ not prohibition+ is the proper remedy for reviewing deportation proceedings.?12 C absence of preliminary investigation does not affect court@s %urisdiction over the case nor impair the validity of the information or otherwise render it defective. person in whose behalf the application is made is imprisoned or restrained of his liberty 7. I9#r #er arre"t r lacA f #reli9inar. Sec. PP6 %7022 . bar relea"e >. or+ if the imprisonment or restraint is without any legal authority+ such fact shall appear."$ proceedings are not meant to determine criminal liability . or+ if both are un'nown or uncertain+ such officer or person may be described by an assumed appellation+ and the person who is served with the writ shall be deemed the person intended. (c) he place where he is so imprisoned or restrained+ if 'nown. (b) he officer or name of the person by whom he is so imprisoned or restrained. >. for correcting errors in appreciation of factsLappreciation of law . =alwe$6 %1>22 . be #r "ecute! b. Effect f filin$ !e# rtati n ca"e" .S$ ordered release of illegally restrained petitioner >*KESS they are now detained by virtue of a process issued by a competent court of %ustice. >.b +ilin$ f inf r9ati n . When %rit not allo%ed or discharge authori$ed. / C4ief f P lice f Manila %?02.Rule: writ of "$ will *E issue where the person alleged to be restrained is in custody of an officer under a process issued by competent court. (d) ! copy of the commitment or cause of detention of such person+ if it can be procured without impairing the efficiency of the remedy... in/e"ti$ati n n t /ali! $r un! f r i""uance f writ %Ila$an /.&elasco v $!: by filing for bail+ he accepted court@s %urisdiction over his person. -Sa. %)entura /. .)ela"c /. f a##eal r certi rari 5.. or if the %urisdiction appears after the writ is allowed+ the person shall not be discharged by reason of any informality or defect in the process+ %udgment+ or order. . Sec. CA6 %1?22 >. Ma.R! ?. Petiti n f r @C n t #r #er 1. place where he is imprisoned or restrained of his liberty =.. CA. P "tin$ f bail i" n t a wai/er . means of accomplishing an end+ whereby court compels compliance with its demands %Malal an /. Su#er/enin$ e/ent" 9a. -(udicial 2rocess definition: a writ+ warrant+ subpoena+ or other formal writing issued by authority of law. cause of detention 2.ce#ti nal circu9"tance" nee!e! f r $rant f writ 7. 3. C Re/i"e! rule" n cri9 #r : bail is not a bar to ob%ections on illegal arrest+ lac' of or irregular preliminary investigation ?. #er" n re"traine!6 r " 9e #er" n in 4i" be4alf+ but if he repudiates the action ta'en+ the writ will be denied. =. Enrile6 >. where $ with %urisdiction over cause+ person and penalty+ mista'e by $ in appreciation of factLlaw cannot be corrected by "$ UP LAW BAROPS 2007 76 of 95 ONE UP LAW . . Re7ui"ite" %N$a. E.in passing upon petition for "$+ the $ourt must determine whether: 1. *or shall anything in this rule be held to authori#e the discharge of a person charged with or convicted of an offense in the 2hilippines+ or of a person suffering imprisonment under lawful %udgment. Ether regular courts still with %urisdiction+ but must be referred to 3$ as soon as presiding %udge returns to duty.a. for asserting or vindicating denial of right to bail 7.aCan /. !pplication for the writ shall be by petition signed and verified either by the party for whose relief it is intended+ or by some person on his behalf+ and shall set forth: (a) hat the person in whose behalf the application is made is imprisoned or restrained of his liberty.. 1f it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or %udge or by virtue of a %udgment or order of a court of record+ and that the court or %udge had %urisdiction to issue the process+ render the %udgment+ or ma'e the order+ the writ shall not be allowed..remedy is not a petition for a writ of "$ but a motion before the trial court to F>!S" the warrant of arrest+ andLor 1nformation+ or to as' for an investigation. c 99 n law "# u"e . *E KE*GER $E* REKK1*G. Petiti n b. Erit ! e" n t lie w4ere t4ere i" re9e!.even if arrest is illegal+ supervening events may bar his release.common law spouse may file petition as she falls within the purview of the term Bsome personC+ which means any person who has a legally %ustified interest in the freedom of the person whose liberty is restrained or who shows some authori#ation to ma'e the application .1 SCRA . name of person detaining another .I8 vests 3$ with e4clusive original %urisdiction to issue writs of "$ in relation to custody of minors.
Ahen the person to be produced is imprisoned or restrained by an officer+ the person who ma'es the return shall state therein+ and in other cases the person in whose custody the prisoner is found shall state+ in writing to the court or %udge before whom the writ is returnable+ plainly and uneDuivocably: (a) Ahether he has or has not the party in his custody or power+ or under restraint. *o writ of habeas corpus can be disobeyed for defect of form+ if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or %udge before whom he is to be brought. Sec. I. Sec. Petiti ner<" te9# rar. )efect of form. 6. person must be detainedLrestrained of his liberty 7. Sec.? P4il. 1f that person cannot be found+ or has not the prisoner in his custody+ then the service shall be made on any other person having or e4ercising such custody. G UP LAW BAROPS 2007 77 of 95 ONE UP LAW . 1??.Lee YicA @ n / C llect r f Cu"t 9"6 ?> P4il 3?0. Erit lie" w4ere c urt wit4 ut Buri"!icti n t i9# "e "entence 1. Sec. ?.Tan Me Ni /.1n case of imprisonment or restraint by an officer+ the writ shall be directed to him+ and shall command him to have the body of the person restrained of his liberty before the court or %udge designated in the writ at the time and place therein specified. $ontents of return. Return to be signed nd s!orn to. J. (b) 1f he has the party in his custody or power+ or under restraint+ the authority and the true and whole cause thereof+ set forth at large+ with a copy of the writ+ order+ e4ecution+ or other process+ if any+ upon which the party is held. and shall also be sworn to by him if the prisoner is not produced+ and in all other cases unless the return is made and signed by a sworn public officer in his official capacity. "ow writ e4ecuted and returned. Sec. he writ may be served in any province by the sheriff or other proper officer+ or by a person deputed by the court or %udge. >>. . "earing on return. he return or statement shall be signed by the person who ma'es it. relea"e ! e" n t ren!er #etiti n f r writ 9 t an! aca!e9ic C General Rule: release+ whether permanent or temporary+ renders petition for "$ moot and academic ET$E2 if there are restraints attached to his release which precludes freedom of action Sec. he person to be produced should be designated in the writ by his name+ if 'nown+ but if his name is not 'nown he may be otherwise described or identified. (d) 1f he has had the party in his custody or power+ or under restraint+ and has transferred such custody or restraint to another+ particularly to whom+ at what time+ for what cause+ and by what authority such transfer was made. >. C llect r f Cu"t 9"6 . Re7ui"ite" f r writ t i""ue 1. S$: no contempt since preliminary citation and real habeas corpus differ. writ will not issue in behalf of person who is not actually restrained of his liberty. $ollector of $ustoms reDuired to appear and show cause why the writ of "$ should not issue in favor of petitioner through a preliminary citation. restraint must be unlawful 2. 17. (c) 1f the party is in his custody or power or is restrained by him+ and is not produced+ particularly the nature and gravity of the sic'ness or infirmity of such party by reason of which he cannot+ without danger+ be brought before the court or %udge. G he officer to whom the writ is directed shall convey the person so imprisoned or restrained+ and named in the writ+ before the %udge allowing the writ+ or+ in case of his absence or disability+ before some other %udge of the same court+ on the day specified in the writ+ unless+ from sic'ness or infirmity of the person directed to be produced+ such person cannot+ without danger+ be brought before the court or %udge. Per" n !i"c4ar$e! n bail i" n t entitle! t t4e writ . 8. o whom writ directed+ and what to reDuire. and the officer shall ma'e due return of the writ+ together with the day and the cause of the caption and restraint of such person according to the command thereof. Sec. 1<. Arit of "$ is remedy for one who is illegally detained. 2erson discharged on bail is not imprisoned or restrained of his liberty as to entitle him to the writ. !d%ournments.0. >. Sec. Erit an! Citati n !i"tin$ui"4e! . 1n case of imprisonment or restraint by a person not an officer+ the writ shall be directed to an officer+ and shall command him to ta'e and have the body of the person restrained of his liberty before the court or %udge designated in the writ at the time and place therein specified+ and to summon the person by whom he is restrained then and there to appear before said court or %udge to show the cause of the imprisonment or restraint. or in case of emergency+ the %udge may issue the writ under his own hand+ and may depute any officer or person to serve it. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to ma'e return of service. "owever+ he allowed petitioner to be deported. "ow prisoner designated and writ served. Ahen the writ must be granted and issued ! court or %udge authori#ed to grant the writ must+ when a petition therefor is presented and it appears that the writ ought to issue+ grant the same forthwith+ and immediately thereupon the cler' of the court shall issue the writ under the seal of the court.
Saul / =ri$.Ahen the writ is returned before one %udge+ at a time when the court is in session+ he may forthwith ad%ourn the case into the court+ there to be heard and determined. 1I. =ur!en f #r /in$ relea"e i" n re"# n!ent . 2erson discharged not to be again imprisoned.T . Gen.8 02 178+ by amending Rule =1 sec. Sec. !lso+ evidence of release lied particularly within respondents power. 'a/ier6 %7122 2.>1.. ! cler' of a court who refuses to issue the writ after allowance thereof and demand therefor+ or a person to whom a writ is directed+ who neglects or refuses to obey or ma'e return of the same according to the command thereof+ or ma'es false return thereof+ or who+ upon demand made by or on behalf of the prisoner+ refuses to deliver to the person demanding+ within si4 (I) hours after the demand therefor+ a true copy of the warrant or order of commitment+ shall forfeit to the party aggrieved the sum of one thousand pesos+ to be recovered in a proper action+ and may also be punished by the court or %udge as for contempt. t /. Sec. >. he court or %udge before whom the writ is returned or ad%ourned must immediately proceed to hear and e4amine the return+ and such other matters as are properly submitted for consideration+ unless for good cause shown the hearing is ad%ourned+ in which event the court or %udge shall ma'e such order for the safe'eeping of the person imprisoned or restrained as the nature of the case reDuires. +ailure t file re#l. When prisoner discharged if no appeal. 1f he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable+ he may be recommitted to imprisonment or admitted to bail in the discretion of the court or %udge. Ra9 "6 >. ! person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having %urisdiction of the cause or offense. 1f the person imprisoned or restrained is not produced because of his alleged sic'ness or infirmity+ the court or %udge must be satisfied that it is so grave that such person cannot be produced without danger+ before proceeding to hear and dispose of the matter. Sec.release is an affirmative defense which must be proven by party alleging it. G 1f it appears that the prisoner was lawfully committed+ and is plainly and specifically charged in the warrant of commitment with an offense punishable by death+ he shall not be released+ discharged+ or bailed.date on which the decisions was promulgated andLor served is not counted and the period starts to run the ff day unless it is a Sunday or legal holiday in which case it starts on succeeding day. but if he is restrained of his liberty by any alleged private authority+ the return shall be considered only as a plea of the facts therein set forth+ and the party claiming the custody must prove such facts. ! person committed to prison+ or in custody of an officer+ for any criminal matter+ shall not be removed therefrom into the custody of another officer unless UP LAW BAROPS 2007 78 of 95 ONE UP LAW . 1f he be admitted to bail+ he shall forthwith file a bond in such sum as the court or %udge deems reasonable+ considering the circumstances of the prisoner and the nature of the offense charged+ conditioned for his appearance before the court where the offense is properly cogni#able to abide its order or %udgment. o perfect appeal+ a notice of appeal is reDuired to be filed with the $ler' of $ourt or (udge who rendered the %udgment.1 SCRA . %+l ren! /. t Return f writ warrant" !i"9i""al f #etiti n6 since unless the allegations in the return are controverted+ they are deemed to be true and shall be considered prima facie evidence of cause of restraint. of Rules on $iv 2ro. En the hearing the court or %udge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authori#ed to commit by law. %Di: n /. Sec. 1J. E!uar! %0022 Sec. Ahen prisoner may be removed from one custody to another. 1f the officer or person detaining the prisoner does not desire to appeal+ the prisoner shall be forthwith released. >. Ahen person lawfully imprisoned recommitted+ and when let to bail. and a person who 'nowingly+ contrary to the provisions of this rule+ recommits or imprisons+ or causes to be committed or imprisoned+ for the same offense+ or pretended offense+ any person so set at liberty+ or 'nowingly aids or assists therein+ shall forfeit to the party aggrieved the sum of one thousand pesos+ to be recovered in a proper action+ notwithstanding any colorable pretense or variation in the warrant of commitment+ and may also be punished by the court or %udge granting writ as for contempt. Ahen the court or %udge has e4amined into the cause of caption and restraint of the prisoner+ and is satisfied that he is unlawfully imprisoned or restrained+ he shall forthwith order his discharge from confinement+ but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner.time prescribed for perfection of appeal is not only mandatory but %urisdictional Mabi$tin$ / Direct r f Pri" n" %522. 1f such bond is not so filed+ the prisoner shall be recommitted to confinement. 16. Cru: %582. he moment a person is acDuitted on a criminal charge he can no longer be detained or re-arrested for the same offense. Ahen the return evidence+ and when only a plea. 1f it appears that the prisoner is in custody under a warrant of commitment in pursuance of law+ the return shall be considered prima facie evidence of the cause of restraint. State wit4 ut # wer t re"er/e reCarre"t . 1=. 1?. 1. and the court or %udge shall certify the proceedings+ together with the bond+ forthwith to the proper court. - - Sec. 2enalty for refusing to issue writ+ or for disobeying the same. S$ restored original rule that period to appeal in "$ is =? hours+ based on Sec.
proceeding in rem+ thus strict compliance with all %urisdictional reDuirements+ especially publication+ is essential to vest the court with %urisdiction.M re /.by legal process+ or the prisoner be delivered to an inferior officer to carry to %ail+ or+ by order of the proper court or %udge+ be removed from one place to another within the 2hilippines for trial+ or in case of fire+ epidemic+ insurrection+ or other necessity or public calamity. C4an$e f na9e n t a 9atter f ri$4t . imprescriptible 2. #r /i"i n" f t4e ci/il c !e . !ecord of %rit& fees and costs.all natural persons regardless of status 5. C@ANGE O+ NAME %NOTE. ! 9icile alien" all we! t file #etiti n %On$ @uan Tin /. 9arrie! w 9en R(LE >8.2.rd persons and state is involved -change of name is not temporary in nature.the real name of a person is that given him in the $ivil Register+ not the name he was bapti#ed with or by which he has been 'nown in the community+ or which he has adopted.7 parts: given name or proper name and surname or family name .6I : *o person can change his name or surname without %udicial authority . Nature f t4e #r cee!in$ . >. absolute 7. file #etiti n . >>.special proceeding to establish the status of a person involving his relation with others . Re#ublic /.indicates the identity of a person .only the true or official name recorded in the civil register may be changed 3. P4ili##ine citi:en"4i# n t nece""ar.the law fi4es the surname that may be used by the person+ and it may only be changed upon %udicial permission granted in the e4ercise of sound discretion.it will not be of much benefit to him if he only stays for a short period of time -. and a person who+ after such commitment+ ma'es+ signs+ or countersigns any order for such removal contrary to this section+ shall forfeit to the party aggrieved the sum of one thousand pesos+ to be recovered in a proper action.Yu /. Law n a! #ti n UP LAW BAROPS 2007 79 of 95 ONE UP LAW . obligatory . CA %1222 . he proceedings upon a writ of habeas corpus shall be recorded by the cler' of the court+ and upon the final disposition of such proceedings the court or %udge shall ma'e such order as to costs as the case reDuires. Re#ublic %552. Z2erson@ is a generic term not limited to 3ilipino citi#ens. .+ 3amily $ode+ $ivil $ode) . 18. Onl. fi4ed+ unchangeable+ immutable+ and may be changed only for good cause and by %udicial proceedings =. Re#ublic6 %5722 .use of surname of adopter by adopted child is both an obligation ($ivil $ode) and a right (2) I<. 5atter of %udicial discretion+ to be e4ercised in light of the reasons adduced and the conseDuences that will li'ely follow 0. Petiti n f r c4an$e f na9e an e. CA %1222 . N Bu!icial aut4 rit.to prevent fraud and to have+ whenever possible+ a record of the change ?. when a person in custody by virtue or under color of proceedings in a civil case is discharged+ the costs shall be ta4ed against him+ or against the person who signed the application for the writ+ or both+ as the court shall direct . rule is clear on reDuirements (see sec7: resident for at least ..$$ !rt . ! person desiring to change his name shall present the petition to the $ourt of 3irst 1nstance of the province in which he resides+ or+ in the $ity of 5anila+ to the (uvenile and )omestic Relations $ourt.given name may be freely selected+ but surname is fi4ed by law . . 9enue. new name may not be shunted aside at will 1. Li9 %8?2. re7uire! f r c ntinu u" u"e f "urna9e which a person had already been using since childhood >2. E4 9a. Le$al "i$nificance f #er" n<" na9e %Re#ublic /. Real na9e f #er" n in re$i"ter .characteristics: 1..ce#ti n t t4e 9an!at r. Sec. Ahen a person confined under color of proceedings in a criminal case is discharged+ the costs shall be ta4ed against the Republic of the 2hilippines+ and paid out of its reasury. N nee! f r c4an$e f na9e b. Pur# "e f rule %Re#ublic /. Re#ublic %5. >8.READ T@IS R(LE IN CON'(NCTION EIT@ RA 18?02 Sec. years in province where the petition is filed) 7. he fees of officers and witnesses shall be included in the costs ta4ed+ but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by virtue of the proceedings. outside the commerce of man J. 1.
'uri"!icti nal re7uire9ent" %Secan M A /. .it is a privilege which may be granted only upon a showing of proper or reasonable cause or compelling reason thereof 7. Re#ublic2 . .6I $$+ the only name that may be changed is the true or official name recorded in the civil register. Mu"t "4 w #reBu!ice b. .failure to comply with %urisdictional reDuirements renders proceedings a nullity ?. name or names or aliases of applicant b. 1. *o reDuirement that person should be of age and that if he is a minor the verification made by him is of no legal effect b. verified petition must be published for . child must file petition when she shall have reached age of ma%ority. Nee! f r #r #er r rea" nable rea" n %Re#ublic /. . $ontents of petition. UP LAW BAROPS 2007 80 of 95 ONE UP LAW . new name as'ed for . . ! petition for change of name shall be signed and verified by the person desiring his name changed+ or some other person on his behalf+ and shall set forth: (a) hat the petitioner has been a bona fide resident of the province where the petition is filed for at least three (. 3. 4. successive wee's in some newspaper of general circulation in the province. . 3. the decision to change her name+ the reason for the change+ and the choice of a new name and surname must be her personal decision.Re#ublic /. Re#ublic6 %7. Re#ublic %572. Marc " %182: mother files petition for minor daughter.valid grounds for change of name: 1. CA2 . #r #er #art. Na9e in ci/il re$i"ter i" fficial na9e . nee! f r /erificati n & T"e /.court may order correction of the pleadings if verification is lac'ing+ or act on the pleading although it is not verified+ if attending circumstances are such that strict compliance may be dispensed with . both title or caption of the petition and the body shall recite: a. %Re#ublic /.lac' of verification not a ground for dismissing petition 2. Re#ublic6 %0822 having continuously used and been 'nown since childhood by a 3ilipino name+ unaware of alien parentage %An$ C4a. 'u!$e %132.) years prior to the date of such filing.%Secan M A /.!rt =<? $$ person@s birth must be entered in the civil register. Re#ublic6 %7822 a sincere desire to adopt a 3ilipino name to erase sign of former alienage+ all in good faith and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would pre%udice public interest. Re#ublic6 %5722 G verification is a formal+ not %urisdictional reDuirement+ intended to secure assurance that the contents of the petition are true and correct+ and that the pleading is filed in good faith. Strict c 9#liance wit4 re7uire9ent" a.22 1.. $ourt held petition premature. lacA f /erificati n t #etiti n f r c4an$e f na9e %O"4it /.doctrine that disallows change of name as would give the false impression of family relationship remains valid but only to the e4tent that the proposed change of name would in great probability cause pre%udice or future mischief to the family whose surname it is or to the community in general. name is ridiculous+ dishonorable or e4tremely difficult to write or pronounce 7. /. w4ere t4e #etiti n f r c4an$e f na9e n t /erifie! .omission is fatal to the petition 5. change results as a legal conseDuence+ as in legitimation >. (b) he cause for which the change of the petitioner.. 0. Sec. fficial na9e C petitioner must show compelling reason !*) that he will be pre%udiced by the use of his true and official name %C4iu @a C4iu /. 5.$! 1=7: !n !ct to regulate the use of aliases G name must be a pseudonym for literary purposes or a name by which he had been 'nown since his childhood or authori#ed by a competent court.Ya"in /. 7. 1n the case of annulment of marriage+ or divorce+ there is no need to file a petition for the resumption of maiden name or surname. 7. Pr 4ibiti n ("e f Alia"e" . &iolation of $! 1=7 is punishable with imprisonment for 1-I months.does not affect %urisdiction of court+ but court must have reDuired petitioner to verify petition.s name is sought. Re9e!.a ("e f "urna9e "ince c4il!4 ! . change will avoid confusion %Alf n /.Re#ublic /.for purposes of an application for change of name under !rt .civil register is an official record of civil status of persons. cause for which change of name is sought c.state has an interest in the names for purposes of identification+ and change of name not a matter of right .22.reason: change of name is matter of public interest . Marc ". (c) he name as'ed for. he use of the husband@s surname is merely permissive which the wife may choose and continue to use e4cept in case of legal separation. Re#ublic6 %7. All na9e" r alia"e" 9u"t a##ear in ca#ti n f #etiti n . E n$6 %1222 7.petition must be filed by person desiring to change hisLher name+ even if it may be signed and verified by some other person in his behalf. Nee! f r Se#arate #etiti n b.reader usually merely glances at the title of the petition and may only proceed to read the entire petition if the title is of interest to him .
petition to change name of infant should be granted only when it is in the best interest of the child. >. name or names of applicant 7. =. !ny interested person may appear at the hearing and oppose the petition..Sec. Nee! f r #ublicati n f r c urt t btain Buri"!icti n C Gil G /.<) days prior to an election nor within four (=) months after the last publication of the notice. he date set for the hearing shall not be within thirty (. 4. names sought to be adopted . 1f the petition filed is sufficient in form and substance+ the court+ by an order reciting the purpose of the petition+ shall fi4 a date and place for the hearing thereof+ and shall direct that a copy of the order be published before the hearing at least once a wee' for three (. his aliases or other names . rea" n" . Re#ublic %772. $hange of name is mere privilege and not a right.. new name as'ed for ?.proper and reasonable cause is left to court@s discretion. Rea" n f r inclu"i n f na9e " u$4t t be a! #te! a" well a" alia"e" C ordinarily reader will only glance at title or caption Sec.State with interest in names for purposes of identification. Petiti n 9u"t be "u## rte! b. rule: change of name should not be permitted if it will give a false impression of family relationship to another where none actually e4ists. C urt<" !i"creti n . . Re#ublic2 .no strict compliance with legal reDuirement regarding publication O renders entire proceedings null and void+ since court has not acDuired %urisdiction. cause for the change of name . Re#ublic6 %5222 no proof of pre%udice by use of official name %C4iu @a# /. Sec. C4iu6 %5522 mere use and 'nown by different name %On$ Te /. Re#ublic6 %5222 no proof that true name evo'es derisive laughter %'ac b Re#ublic2 /. Marc "6 %1822 ?. R(LE >87 A=SENTEES Sec. . 2.N$ =ui Mui /. & (udgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated+ who shall forthwith enter the same in the civil register. to apprise public of pendency of petition so that those who may 'now of any legal ob%ection to it might come forward with the information 2. >. /rder for hearing. 2. Sec. C ntent" f Petiti n . Effect f !i"cre#anc. Rule in c4an$in$ na9e f 9in r" .published order must reproduce title of petition with data already stated+ and should contain: %Secan M A6 "u#ra2 1.proceeding in rem . Appointment of representative. Pur# "e f #ublicati n .evidence need only be satisfactory to court and not all the best evidence available . separation of spouses %La#eral /. %Re#ublic /.. 3. 3.misleads court and pre%udiced the interest of the general public+ as it was impossible for anyone with adverse interest to oppose his petition. applicant@s real name 7. in #etiti n an! #ubli"4e! r!er %'ac b /. wei$4t.) successive wee's in some newspaper of general circulation published in the province+ as the court shall deem best.defect is substantial+ because it did not correctly identify the party to the proceedings. In"ufficient $r un!" f r c4an$e f na9e 1. .title of petition must include: 1.. J. "earing. %Cal!er n /. (udgment. . Re#ublic6 %5722 . >pon satisfactory proof in open court on the date fi4ed in the order that such order has been published as directed and that the allegations of the petition are true+ the court shall+ if proper and reasonable cause appears for changing the name of the petitioner+ ad%udge that such name be changed in accordance with the prayer of the petition. Re#ublic %302. 5. he Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.Gen.. 1. Ser"ice o# $udg%ent. Ahen a person disappears from his domicile+ his whereabouts being un'nown+ and without having left an agent to administer his property+ or the power UP LAW BAROPS 2007 81 of 95 ONE UP LAW .
?= and .?7 of the $ivil $ode Sec. 1n these cases the trustee or administrator shall cease in the performance of his UP LAW BAROPS 2007 82 of 95 ONE UP LAW . Contents of petition. Sec. =. 1n case of declaration of absence+ the same shall not ta'e effect until si4 (I) months after its publication in a newspaper of general circulation designated by the court and in the Efficial Ga#ette.s property by purchase or other title. he %udge shall ta'e the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers+ obligations and remuneration of his representative+ trustee or administrator+ regulating them by the rules concerning guardians. he trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases: (a) Ahen the absentee appears personally or by means of an agent. Epposition. 6 he petition for the appointment of a representative+ or for the declaration of absence and the appointment of a trustee or an administrator+ must show the following: (a) he %urisdictional facts. of the $ivil $Ede Sec. (d) he probable value+ location and character of the property belonging to the absentee. 1n the appointment of a representative+ the spouse present shall be preferred when there is no legal separation.) consecutive wee's prior to the time designated for the hearing+ in a newspaper of general circulation in the province or city where the absentee resides+ as the court shall deem best. . J. Sec. . Ahen a petition for the appointment of a representative+ or for the declaration of absence and the appointment of a trustee or administrator+ is filed+ the court shall fi4 a date and place for the hearing thereof where all concerned may appear to contest the petition. . and (d) hose who have over the property of the absentee some right subordinated to the condition of his death. ?. notice and publication thereof. Aho may be appointed. order. (c) he relatives who would succeed by the law of intestacy. 6. . >pon satisfactory proof of the allegations in the petition+ the court shall issue an order granting the same and appointing the representative+ trustee or administrator for the absentee. =a"i" f 2n! #ar: !rt . $opies of the notice of the time and place fi4ed for the hearing shall be served upon the 'nown heirs+ legatees+ devisees+ creditors and other interested persons+ at least ten (1<) days before the day of the hearing+ and shall be published once a wee' for three (. =a"i"!rt. 1f the absentee left no spouse+ or if the spouse present is a minor or otherwise incompetent+ any competent person may be appointed by the court. ermination of administration. 7. ime of hearing. (b) he heirs instituted in a will+ who may present an authentic copy of the same.conferred upon the agent has e4pired+ any interested party+ relative or friend+ may petition the $ourt of 3irst 1nstance of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. =a"i" : !rts. (c) he names and residences of creditors and others who may have any adverse interest over the property of the absentee. (b) he names+ ages+ and residences of the heirs instituted in the will+ copy of which shall be presented+ and of the relatives who would succeed by the law of intestacy.s property shall be appointed in accordance with the preceding paragraph. who may petition. I. !nyone appearing to contest the petition shall state in writing his grounds therefor+ and served a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing. =a"i" : !rt. !fter the lapse of two (7) years from his disappearance and without any news about the absentee or since the receipt of the last news+ or of five (J) years in case the absentee has left a person in charge of the administration of his property+ the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the following: (a) he spouse present.?1 and . (b) Ahen the death of the absentee is proved and his testate or intestate heirs appear. 1n the $ity of 5anila+ the petition shall be filed in the (uvenile and )omestic Relations $ourt. (c) Ahen a third person appears+ showing by a proper document that he has acDuired the absentee. 1n case of declaration of absence+ the trustee or administrator of the absentee. Sec. !t the hearing+ compliance with the provisions of section = of this rule must first be shown. )eclaration of absence..?I+ $ivil $ode Sec.?J of the $ivil $ode )eclaration may be made in: 1) administration proceedings 7) petition to place management of con%ugal properties in hands of the present spouse Sec. 2roof at hearing.?.
$haracteristics of summary proceedings in 3amily Kaw • &erified petition for truthfulness • *otice of filing of petition for due process • *o periods set+ discretionary on %udge+ but must be short • 2reliminary conference 1) with lawyers e4cluded to remove obstructions to compromise+. 8<=? (5arch 77+ 7<<1) !* !$ !> "ER1\1*G "E $1 R ER 5>*1$12!K $1&1K REG1S R!R ER "E $E*S>K GE*ER!K E $ERRE$ ! $KER1$!K ER R2EGR!2"1$!K ERRER 1* !* E* RR !*)LER $"!*GE E3 31RS *!5E ER *1$V*!5E 1* "E $1&1K REG1S ER A1 "E> *EE) E3 ! (>)1$1!K ER)ER+ !5E*)1*G 3ER "1S 2>R2ESE !R 1$KES . g) fi4ing of bond of parents • • • • 1mpugning legitimacy of child collaterally not allowed $orrectionLcancellation of wrong filiation allowed i. opposing parties+ as distinguished from e( parte application+ legal warning+ opportunity to contest =a"i": !rt.?8+ $ivil $ode.=8+ R2$ for bigamy • 2resumptions under Rule 1..6I !*) =17 E3 "E $1&1K $E)E E3 "E 2"1K1221*ES Sec. (c) deaths. RA18?06 Secti n >. Authorit* to Correct Clerical or . Who ma* file petition !ny person interested in any act+ event+ order or decree concerning the civil status of persons which has been recorded in the civil register+ may file a verified petition for the cancellation or correction of any entry relating thereto+ with the $ourt of 3irst 1nstance of the province where the corresponding civil registry is located. E4ception: for purposes of marriage+ under !rt. =1+ 3amily $ode • 2urpose: protect present spouse from prosecution under !rt. (d) legal separations.e. not child of entrant at all 2eriod to file is from discovery of error Separate form Rule 1<. Cf.*pographical 3rror and Change of 5irst Name or Nic'name G *o entry in a civil register shall be changed or corrected without a %udicial order+ e4cept for clerical or typographical errors and change of first name or nic'name which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this !ct and its implementing rules and regulations. may not be substituted for one another for e4pediency R(LE >80 CANCELLATION OR CORRECTION O+ ENTRIES IN T@E CI)IL REGISTRY UP LAW BAROPS 2007 83 of 95 Sec.. re: change of name. 7) conducted personally by %udge in the nature of inDuisitorial hearing • rial fiscal@s appearance not reDuired • )ecision on basis of affidavitsLdocumentary evidence • *o regard to technical rules for e4pediency • (udgment immediately final and e4ecutory • !pplication: separation de facto under !$2 or $2G declaration of presumptive death delivery of presumptive legitimes disagreement in fi4ing family domicile disagreement in %oint administration of !$2L$2G f) entrusting parental authority over foundlingsLabandonedLneglectedLabused children to heads of children@s homesLorpahanagesLetc.1.e. )eclaration of absence is unnecessary when there are no properties • 2resent spouse see's that administration for all classes of property be transferred to herLhim 7.(w) are satisfactory if uncontradicted but must yield to contradictory evidence =. Entries sub%ect to cancellation or correction. (b) marriages. affects civil status+ citi#enship+ nationality and $ancellationL correction of substantial errors !dversarial proceeding i. (e) %udgments of annulments of marriage. he provision of this Rule may be deemed modified by RE2>0K1$ !$ *E. *o independent action for declaration of presumptive death • he disputable presumption mat arise in a ctionLspecial proceeding . . 7. . 1. (f) %udgments declaring ONE UP LAW . Effect : Such errors are removed from the ambit of Rule 1<? R! 8<=? $lerical or typographical errors and change of first name or nic'name Summary procedure Rule 1<? Substantial changes i.office+ and the property shall be placed at the disposal of those who may have a right thereto. 1.e. >pon good and valid grounds+ the following entries in the civil register may be cancelled or corrected: (a) births.
(e) $onstitutes+ in proceedings relating to the settlement of the estate of a deceased person+ or the administration of a trustee or guardian+ a final determination in the lower court of the rights of the party appealing+ e4cept that no appeal shall be allowed from the appointment of a special administrator. Sec. he civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may+ within fifteen (1J) days from notice of the petition+ or from the last date of publication of such notice+ file his opposition thereto. . he sweep of the decision would cover even parties who should have been impleaded under §. Sec.) consecutive wee's in a newspaper of general circulation in the province. R(LE >81 APPEALS IN SPECIAL PROCEEDINGS Sec. and (o) changes of name. /rders or judgments from %hich appeals ma* be ta'en. !n interested person may appeal in special proceedings from an order or %udgment rendered by a $ourt of 3irst 1nstance or a (uvenile and )omestic Relations $ourt+ where such order or %udgment: (a) !llows or disallows a will. =arc /. (g) legitimations.< days UP LAW BAROPS 2007 84 of 95 ONE UP LAW . 2arties. 'uri"#ru!ence ? +ee v. E4pediting proceedings.>pon the filing of the petition+ the court shall+ by an order+ fi4 the time and place for the hearing of the same+ and cause reasonable notice thereof to be given to the persons named in the petition. Epposition. !fter hearing+ the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. $ivil Registrar (<=)+ Elosida v. CA citing !epublic 9.+ Sec. .-J are complied with+ and the aggrieved parties have availed themselves of the appropriate adversary proceedings • 2etition for correction is an action in rem • 5ode of appeal is by record on appeal+ the period is . 1J (e4tending 2hilippine citi#enship to minor children of those naturali#ed under KE1 76<) Ether cases citing this rule: $o v. Erder.marriages void from the beginning. • Entries in 0irth certificates relating to citi#enship of the father from B$hineseC to B3ilipinoC allowed under $! =6. *otice and publication. . CA %8?2. he court shall also cause the order to be published once a wee' for three (.e. Sec. 1n either case+ a certified copy of the %udgment shall be served upon the civil registrar concerned who shall annotate the same in his record. he purpose of this section is to bind the whole world to the subseDuent %udgment on the petition. I. =. (h) adoptions. (c) !llows or disallows+ in whole or in part+ any claim against the estate of a deceased person+ or any claim presented on behalf of the estate in offset to a claim against it. 1.. (n) voluntary emancipation of a minor. he decision on the petition binds not only the parties thereto but the whole world. ! petition for correction is an action in rem+ an action against a thing and not against a person. he court in which the proceeding is brought may ma'e orders e4pediting the proceedings+ and may also grant preliminary in%unction for the preservation of the rights of the parties pending such proceedings. B$hineseC to B3ilipinoC+ BlegitimateC to BillegitimateC which are not mere clerical errors+ such may be corrected as long as R1<?+ Secs. Ahen cancellation or correction of an entry in the civil register is sought+ the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. (b) )etermines who are the lawful heirs of a deceased person+ or the distributive share of the estate to which such person is entitled. J. (%) naturali#ation (') election+ loss or recovery of citi#enship (l) civil interdiction. 1t is validated essentially through publication which serves as a notice to the whole world that the proceeding has for its ob%ect to bar indefinitely all who might be minded to ma'e an ob%ection of any sort against the right sought to be established. K$R (<7) • Sec. (i) ac'nowledgments of natural children.+ Rule 1<?+ but were inadvertently left out. Sec. Even though 0arco was not impleaded in the petition+ the defect was cured by compliance with §=+ Rule 1<?+ which reDuires notice by publication. (m) %udicial determination of filiation. (d) Settles the account of an e4ecutor+ administrator+ trustee or guardian. and (f) 1s the final order or %udgment rendered in the case+ and affects the substantial rights of the person appealing+ unless it be an order granting or denying a motion for a new trial or for reconsideration. 9alencia Even if what was sought was the correction of the nationality and civil status of petitioners minor@ children as stated in the records+ i. 6.
4rounds of petition. (c) remarriage of his surviving parent+ if the latter 1s found unsuitable to e4ercise parental authority.g. Who ma* petition for appointment of guardian. R(LE ON G(ARDIANS@IP O+ MINORS Section 1.e.-. Sec. 7..he grounds for the appointment of a guardian over the person or property+ or both+ of a minor are the following: (a) death+ continued absence+ or incapacity of his parents. Where to file petition. Applicabilit* of the !ule. 6 En grounds authori#ed by law+ any relative or other person on behalf of a minor+ or the minor himself if fourteen years of age or over+ may petition the 3amily $ourt for the appointment of a general guardian over the person or property+ or both+ of such minor.1ncludes an appeal in liDuidation proceedings against an insolvent corporation • Enly an interested person may appeal i. an e4ecutor+ lawful heirs+ surety • $ertiorari and mandamus not substitute for appeal $ases appealable a) by surety from court approvalLdisapproval of accounting b) by heir approving a money claim c) order for a license to sell real estate in administration proceedings d) order against bond e) order authori#ing administrator to contract an obligationL mortgage property f) order appointing administrator g) order annulling appointment of guardian h) order removing guardian i) inventories and claim against the estate %) by a person declared incompetent ') order refusing to intervene in special proceedings l) ruling on declaration of heirs $ases not appealable (interlocutory orders) a) directing administrator to ta'e action to recover amount due to estate b) relating to inclusion of items of property from inventory c) appointment of special administrator Sec. (b) suspension+ deprivation or termination of parental authority. he petition may also be filed by the Secretary of Social Aelfare and )evelopment and by the Secretary of "ealth in the case of an insane minor who needs to be hospitali#ed. 7. direct and material interest e. . (c) (d) financial status. Sec. • Sec. 1n such case+ this Rule shall be suppletory to the provisions of the 3amily $ode on guardianship. 6 1n appointing a guardian+ the court shall consider the guardian@s: (a) moral character. *otwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent+ the court may+ in its discretion and upon such terms as it may deem proper and %ust+ permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees+ upon compliance with the conditions set forth in Rule 8< of these rules. when the best interests of the minor so APPENDIK FAG Sec. 6 ! petition for guardianship over the person or property+ or both+ of a minor may be filed in the 3amily $ourt of the province or city where the minor actually resides. J. 6 his Rule shall apply to petitions for guardianship over the person or property+ or both+ of a minor. @ualifications of guardians. Advance distribution in special proceedings. 1f he resides in a foreign country+ the petition shall be flied with the 3amily $ourt of the province or city where his property or any part thereof is situated. he father and the mother shall %ointly e4ercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. relationship of trust with the minor. =. (b) physical+ mental and psychological condition. or (d) reDuire. UP LAW BAROPS 2007 85 of 95 ONE UP LAW .
6 ! petition for the appointment of a general guardian must allege the following: (a) he %urisdictional facts. Sec. I. Hearing and order for letters to issue. "owever+ no defect in the petition or verification shall render void the issuance of letters of guardianship. Sec. G he court shall order a social wor'er to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. 6 !ny interested person may contest the petition by filing a written opposition based on such grounds as the ma%ority of the minor or the unsuitability of the person for whom letters are prayed+ and pray that the petition be denied+ or that letters of guardianship issue to himself+ or to any suitable person named in the opposition.(e) availability to e4ercise the powers and duties of a guardian for the full period of the guardianship. 11. 1<. (f) he names+ ages+ and residences of relatives within the =th civil degree of the minor+ and of persons having him in their care and custody. 6 1n default of parents or a court-appointed guardian+ the court may appoint a guardian of the person or property+ or both+ of a minor+ observing as far as practicable+ the following order of preference: (a) the surviving grandparent and 1n case several grandparents survive+ the court shall select any of them ta'ing 1nto account all relevant considerations.ime and notice of hearing. A. Who ma* be appointed guardian of the person or propert*& or both& of a minor. and (h) he name+ age and residence of the person for whom letters of guardianship are prayed. Sec. 6 !t the hearing of the petition+ it must be shown that the reDuirement of notice has been (b) he name+ age and residence of the prospective ward. (b) the oldest brother or sister of the minor over twenty-one years of age+ unless unfit or disDualified. /pposition to petition. (d) he death of the parents of the minor or the termination+ deprivation or suspension of their parental authority. ?. he remarriage of the minor@s surviving Sec. Contents of petition. Sec. UP LAW BAROPS 2007 86 of 95 ONE UP LAW . he petition shall be verified and accompanied by a certification against forum shopping. 8. . (c) the actual custodian of the minor over twenty-one years of age+ unless unfit or disDualified. he social wor'er may intervene on behalf of the minor if he finds that the petition for guardianship should be denied. Sec. (g) he probable value+ character and location of the property of the minor. and (g) ability to manage the property of the minor. and (d) any other person+ who in the sound discretion of the court+ would serve the best interests of the minor. Case stud* report. (f) lac' of conflict of interest with the minor. (e) parent. G Ahen a petition for the appointment of a general guardian is filed+ the court shall fi4 a time and place for its hearing+ and shall cause reasonable notice to be given to the persons mentioned in the petition+ including the minor if he is fourteen years of age or over+ and may direct other general or special notice to be given. (c) he ground rendering the appointment necessary or convenient.
Where to file the bond8 action thereon. 17.. UP LAW BAROPS 2007 87 of 95 ONE UP LAW . 1J. 1f warranted+ the court shall appoint a suitable guardian of the person or property+ or both+ of the minor. 1ond of guardian8 amount8 conditions. Sec. (c) o render a true and (ust account of all the property of the ward in his hands+ and of all proceeds or interest derived therefrom+ and of the management and disposition of the same+ at the time designated by this rule and such other times as the court directs.complied with. and (d) o perform all orders of the court and such other duties as may be reDuired by law. 1ond of parents as guardians of propert* of minor. *otice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem proper. Ahenever necessary+ the court may reDuire the guardian to post a new bond and may discharge from further liability the sureties on the old bond after due notice to interested persons+ if no in%ury may result therefrom to those interested in the property. 1I. 1.<<+ the parent concerned shall furnish a bond 1n such amount as the court may determine+ but in no case less than ten per centurn of the value of such property or annual income+ to guarantee the performance of the obligations prescribed for general guardians. (b) o faithfully e4ecute the duties of his trust+ to manage and dispose of the property according to this rule for the best interests of the ward+ and to provide for his proper care+ custody and education. he prospective ward shall be presented to the court. he court shall hear the evidence of the parties in support of their respective allegations. Sec. Sec. and at the e4piration of his trust+ to settle his accounts with the court and deliver and pay over all the property+ effects+ and monies remaining in his hands+ or due from him on such settlement+ to the person lawfully entitled thereto. Sec. Service of final and e(ecutor* judgment or order. Sec. he petition shall be doc'eted as a summary special proceeding 1n which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved.-1efore he enters upon the e4ecution of his trust+ or letters of guardianship issue+ an appointed guardian may be reDuired to post a bond in such sum as the court shall determine and conditioned as follows: (a) o ma'e and return to the court+ within three months after the issuance of his letters of guardianship+ a true and complete 1nventory of all the property+ real and personal+ of his ward which shall come to his possession or 'nowledge or to the possession or 'nowledge of any other person in his behalf. !t the discretion of the court+ the hearing on guardianship may be closed to the public and the records of the case shall not be released without its approval. 1f after hearing the court is satisfied that such non-resident is a minor and a guardian is necessary or convenient+ it may appoint a guardian over his property. When and ho% a guardian of the propert* for non-resident minor is appointed8 notice. he court may dispense with the presence of the non-resident minor. 1=. G he final and e4ecutory %udgment or order shall be served upon the Kocal $ivil Registrar of the municipality or city where the minor resides and the Register of )eeds of the place where his property or part thereof is situated shall annotate the same in the corresponding title+ and report to the court his compliance within fifteen days from receipt of the order. G lf the mar'et value of the property or the annual 1ncome of the child e4ceeds 2J<+<<<. 6 he bond posted by a guardian shall be filed in the 3amily $ourt and+ 1n case of breach of any of its conditions+ the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. ! verified petition for approval of the bond shall be flied in the 3amily $ourt of the place where the child resides or+ if the child resides in a foreign country+ in the 3amily $ourt of the place where the property or any part thereof is situated. 6 Ahen the minor resides outside the 2hilippines but has property in the 2hilippines+ any relative or friend of such minor+ or any one interested in his property+ in e4pectancy or otherwise+ may petition the 3amily $ourt for the appointment of a guardian over the property.
G ! guardian shall have the care and custody of the person of his ward and the management of his property+ or only the management of his property. UP LAW BAROPS 2007 88 of 95 ONE UP LAW . (b) !uthori#e reimbursement to the guardian+ other than a parent+ of reasonable e4penses incurred in the e4ecution of his trust+ and allow payment of compensation for his services as the court may deem %ust+ not e4ceeding ten per centum of the net income of the ward+ if any.-Ahen the income of a property under guardianship is insufficient to maintain and educate the ward+ or when it is for his benefit that his personal or real property or any part thereof be sold+ mortgaged or otherwise encumbered+ and the proceeds invested in safe and productive security+ or in the improvement or security of other real property+ the guardian may file a verified petition setting forth such facts+ and praying that an order issue authori#ing the sale or encumbrance of the property. (e) o submit to the court a verified inventory of the property of his ward within three months after his appointment+ and annually thereafter+ the rendition of which may be reDuired upon the application of an interested person. and (g) o render to the court for its approval an accounting of the property one year from his appointment+ and every year thereafter or as often as may be reDuired. and to appear for and represent the ward in all actions and special proceedings+ unless another person is appointed for that purpose. 18.Sec. he guardian of the property of a nonresident minor shall have the management of all his property within the 2hilippines. 4eneral duties of guardian. otherwise+ in such amount the court determines to be a reasonable compensation for his services. and if such income and profits be insufficient for that purpose+ to sell or encumber the real or personal property+ upon being authori#ed by the court to do so. and (c) >pon complaint of the guardian or ward+ or of any person having actual or prospective interest in the property at the ward+ reDuire any person suspected of having embe##led+ concealed+ or disposed of any money+ goods or interest+ or a written instrument belonging to the ward or his property to appear for e4amination concerning any thereof and issue such orders as would secure the property against such embe##lement+ concealment or conveyance. (f) o report to the court any property of the ward not included in the inventory which is discovered+ or succeeded to+ or acDuired by the ward within three months after such discovery+ succession+ or acDuisition. Sec. (d) o consent to a partition of real or personal property owned by the ward %ointly or in common with others upon authority granted by the court after hearing+ notice to relatives of the ward+ and a careful investigation as to the necessity and propriety of the proposed action. 0o%er and dut* of the court G he court may: (a) ReDuest the assistance of one or more commissioners in the appraisal of the property of the ward reported in the initial and subseDuent inventories. (c) o manage the property of the ward frugally and without waste+ and apply the income and profits thereon+ insofar as may be necessary+ to the comfortable and suitable maintenance of the ward. 16. 0etition to sell or encumber propert*. ! guardian shall perform the following duties: (a) o pay the %ust debts of the ward out of the personal property and the income of the real property of the ward+ 1f the same is sufficient. otherwise+ out of the real property of the ward upon obtaining an order for its sale or encumbrance. 1?. Sec. (b) o settle all accounts of his ward+ and demand+ sue for+ receive all debts due him+ or may+ with the approval of the court+ compound for the same and give discharges to the debtor on receiving a fair and %ust dividend of the property and effects.
4rounds for removal or resignation of guardian. 3ffect of the rule. Hearing on return of order8 costs. he guardian shall notify the court of such fact within ten days of its occurrence. Guardianship of incompetents who are not minors shall continue to be under the %urisdiction of the regular courts and governed by the Rules of $ourt.s welfare and enhance his opportunities for a useful and happy life+ oward this end+ this Rule see's to protect the child from all forms of neglect+ abuse+ cruelty+ UP LAW BAROPS 2007 89 of 95 ONE UP LAW . >pon the removal or resignation of the guardian+ the court shall appoint a new one. Sec. he order shall specify the grounds for the sale or encumbrance and may direct that the property ordered sold be disposed of at public sale+ sub%ect to such conditions as to the time and manner of payment+ and security where a part of the payment is deferred. 7<. 77. *o motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. following its publication in a newspaper of general circulation not later than !pril 1J+ 7<<. Sec. 76. 4round for termination of guardianship. 6 he final and e4ecutory %udgment or order shall be served upon the Kocal $ivil Registrar of the municipality or city where the minor resides and the Register of )eeds of the province or city where his property or any part thereof is situated. 7. 6 he court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of age or has died. Sec. 7=. Court ma* order investment of proceeds and direct management of propert*. Sec. G his Rule amends Rules 87 to 86 inclusive of the Rules of $ourt on guardianship of minors. 6 he court may authori#e and reDuire the guardian to invest the proceeds of sales or encumbrances+ and any other money of his ward in his hands+ in real or personal property+ for the best interests of the ward+ and may ma'e such other orders for the management+ investment+ and disposition of the property and effects+ as circumstances may warrant. he court may allow the guardian to resign for %ustifiable causes. 6 At the time and place designated in the order to show cause+ the court shall hear the allegations and evidence of the petitioner and ne4t of 'in+ and other persons interested+ together with their witnesses+ and grant or deny the petition as the best interests of the ward may reDuire..he ob%ective of this Rule is to ensure that every effort is e4erted to promote the child. Sec. Service of final and e(ecutor* judgment or order. 6 1f the sale or encumbrance is necessary or would be beneficial to the ward+ the court shall order his ne4t of 'in and all personLs interested in the property to appear at a reasonable time and place therein specified and show cause why the petition should not be granted. Contents of order for sale or encumbrance and its duration8 bond. 6 Ahen a guardian becomes insane or otherwise incapable of discharging his trust or is found thereafter to be unsuitable+ or has wasted or mismanaged the property of the ward+ or has failed to render an account or ma'e a return for thirty days after it is due+ the court may+ upon reasonable notice to the guardian+ remove him as such and reDuire him to surrender the property of the ward to the person found to be lawfully entitled thereto. Sec. 7J.his Rule shall ta'e effect on 5ay 1+ 7<<. /bjective& . Sec.. APPENDIK F=G Rule n C 99it9ent f C4il!ren SE$ 1E* 1. he original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale or encumbrance+ but the court may+ if deemed e4pedient+ reDuire an additional bond as a condition for the sale or encumbrance. 71.Sec. G 1f& after full e4amination+ it is necessary+ or would be beneficial to the ward+ to sell or encumber the property+ or some portion of it+ the court shall order such sale or encumbrance the proceeds of which shall be e4pended for the maintenance or the education of the ward+ or invested as the circumstances may reDuire. /rder to sho% cause. 7?. 7I. . he authority to sell or encumber shall not e4tend beyond one year+ unless renewed by the court. 0oth the Kocal $ivil Registrar and@ the Register of )eeds shall enter the final and e4ecutory %udgment or order in the appropriate boo's in their offices. Sec. 3ffectivit*.
(') MEmotionally disturbed childM is one who+ although not afflicted with insanity or mental defect+ is unable to maintain normal social relations with others and the community in general due to emotional problems or comple4es. (1) M5entally ill childM is one with any behavioral disorder+ whether functional or organic+ which is of such a degree of severity as to reDuire professional help or hospitali#ation. 2efinition of . (o) M&oluntarily committed childM is one whose parents 'nowingly and willingly relinDuished parental authority to the )epartment or any duly licensed child-placement or child-caring agency or individual in accordance with Section . . made to beg in the streets or public places+ or when placed in moral danger+ or e4posed to drugs+ alcohol+ gambling+ prostitution and other vices. (i) M5entally retarded childM is one who is (1) socially incompetent+ that is+ socially inadeDuate+ occupational] incompetent and unable to or (I) essentially incurable. (a) M$hildM is a person below eighteen years of age.e4ploitation and other conditions pre%udicial to his development. (p) M$hild-placing or child-placement agencyM refers to a private nonprofit or charitable institution or government agency duly licensed and accredited by (he )epartment to provide comprehensive child welfare services+ including but not limited to+ receiving applications for adoption or foster care+ evaluating the prospective adoptive or foster parents and preparing the home study report. 7.placement or child-caring agency or individual by the court+ parent or guardian or any interested party. (f) M2hysical neglectM occurs when the child is malnourished+ ill-clad and without proper shelter. (%) M2hysically handicapped childM is one who is crippled+ deaf-mute+ blind+ or otherwise suffers from a defect which restricts his means of action or communication with others.. (D) M$hild-caring agencyM refers to a private non-profit or charitable institution or government agency duly licensed and accredited by the )epartment that provides twenty-four hour residential care services for abandoned+ orphaned+ neglected+ involuntarily or voluntarily committed children. herein. #nterpretation. SE$. (n) M1nvoluntarily committed childM is one whose parents have been permanently and %udicially deprived of parental authority due to abandonment. (d) M!bandoned childM is one who has no proper parental care or guardianship+ or whose parents or guardian has deserted him for a period of at least si4 (J) continuous months. (e) M*eglected childM is one whose basic needs have been deliberately unattended to or inadeDuately attended to+ physically or emotionally+ by his parents or guardian.he best interests of the child shall be the paramount consideration in all actions concerning him+ whether underta'en by public or private social welfare institutions+ courts of law+ administrative authorities and legislative bodies consistent with the >nited *ations $onvention on the Rights of the $hild+ SE$. or incompetence to discharge parental responsibilities in accordance with Section = herein. (b) M)epartmentM refers to the )epartment of Social Aelfare and )evelopment+ (c) M)ependent childM is one who is without a parent+ guardian or custodian+ or one whose parents+ guardian or other custodian for good cause desires to be relieved of his care and custody+ and is dependent upon the public for support. (h) M)isabled childM includes mentally retarded+ physically handicapped+ emotionally disturbed and mentally ill children+ children with cerebral palsy and those with similar afflictions. (m) M$ommitmentM or Msurrender of a childM is the legal act of entrusting a child to the care of the )epartment or any duly licensed child. abuse. (g) MEmotional neglectM occurs when a child is raped+ seduced+ maltreated+ e4ploited+ overwor'ed or made to wor' under conditions not conducive to good health. . UP LAW BAROPS 2007 90 of 95 ONE UP LAW .erms. substantial+ continuous+ or repeated neglect.
1f it appears from the petition that both parents of the child are dead or that neither parent can be found in the province or city where the court is located and the child has no guardian residing therein+ summons may not be issued and the court shall thereupon appoint a guardian ad litem pursuant to Sub-section (f) below and proceed with the hearing of the case with due notice to the provincial or city prosecutor. he facts showing who has custody of the child at the time of the filing of the petition.1f the court is satisfied that the petition is sufficient in form and substance+ it snail direct the cler' of court to immediately issue summons which shall be served together with a copy of the petition and a notice of hearing+ upon the parents or guardian of the child and the office of the public prosecutor not less than five (J) days before the date of the hearing.1f neither of the parents nor the guardian of the child can be located or does not appear in court despite due notice+ or if the court finds them incompetent to protect the best interests of the child+ it shall be the duty of the court to appoint a suitable person as guardian ad litem to represent the child. 1n ma'ing the appointment+ the court shall consider the bac'ground of the guardian ad litem and his familiarity with the %udicial process+ social service programs and child development. =. he report shall bear the signature of the social wor'er on every page.s parents are un'nown+ petitioner must allege that diligent efforts have been e4erted to locate them. he office of the public prosecutor shall be directed to immediately transmit the summons to the prosecutor assigned to the 3amily $ourt concerned. (s) M$ase Study ReportM is a written report of the result of an investigation conducted by a social wor'er as to the socio-cultural+ economic and legal status or condition of the child sought to be committed. 1. 1f the child.he petition must state: .(r) MGuardian ad litem is a person appointed by the court where the case is pending for a child sought to be committed to protect his best interests. (d) Summons8 Court to Set . he names of the parents or guardian and their place of residence. and he name+ address and written consent of the )epartment or duly licensed child-placement or child-caring agency or individual to whose care the commitment of the child is sought to be entrusted.ime for Hearing. . (c) Contents of 9erified 0etition. . UP LAW BAROPS 2007 91 of 95 ONE UP LAW . . he report is submitted to the 3amily $ourt to aid it in its evaluation of whether the child ought to be committed to the care of the )epartment or any duly licensed child-placement or child-caring agency or individual. 1t said parents are deceased+ petitioner shall attach a certified true copy of their death certificate. (e) Social Wor'er. (b) 9enue.s strengths and wea'nesses and parental control over him. 1t shall include among others his developmental age+ educational attainment+ family and social relationships+ the Duality of his peer group+ his family. =. . he facts showing that the child is dependent+ abandoned+ or neglected.he Secretary of the )epartment or his authori#ed representative or any duly licensed child-placement or child-caring agency having 'nowledge of a child who appears to be dependent+ abandoned or neglected+ may file a verified petition for involuntary commitment of said child to the care of any duly licensed childplacement or child-caring agency or individual.he petition shall be filed with the 3amily $ourt of the province or city in which the parent or guardian resides or where the child is found. .!fter the court sets the petition for hearing in accordance with Sub-section (d) above+ it shall direct the social wor'er to submit+ before the hearing+ a case study report of the child to aid it in evaluating whether said child should be committed to the care of the )epartment or any duly licensed child-placement or child-caring agency or individual. SE$. G (a) Who ma* file. (f) 4uardian Ad +item of Child. ! member of the 2hilippine 0ar may be appointed guardian ad litem. . 7..
.he duly licensed child-placement or child-caring agency or individual to whom a child has been committed may file a verified motion with the court which granted the petition for involuntary commitment of a child to place him in the care of any suitable person+ upon the latter.he provincial or Mcity prosecutor shall appear for the State and ascertain if there has been due notice to all parties concerned and that there is %ustification for the declaration of dependency+ abandonment or neglect. (') 9isitation or #nspection.he court+ upon reDuest of the child capable of forming his own views or upon reDuest of his guardian ad litem+ shall appoint a lawyer to represent him in the proceedings. . (o) !emoval of Custod*.<) days from the order of commitment+ the name and address of the duly licensed and accredited child-placement or childcaring agency or individual where the child shall be placed. he court may order the social wor'er to submit a case study report to aid it in evaluating whether such temporary custody shall be for the best interests of the child. he )epartment shall notify the court of any change in custody of the child+ Ahen conflicting interests arise among child-placement or child-caring agencies+ the court which granted the involuntary commitment of the child+ upon motion of the )epartment or any of the agencies concerned+ shall order the change of commitment of the child. . . 1f the child is committed to the )epartment+ it shall notify the court within thirty (. (i) Hearing.(g) ChildBs !ight to Counsel . (%) :udgment. "owever+ if the court finds that the abandonment or neglect of the child may be remedied+ the child may be allowed to stay in his own home under the care and control of his parents or guardian+ sub%ect to supervision and direction of the )epartment.s reDuest+ for a period not e4ceeding one month at a time.1f the child is committed to the )epartment+ it shall have the authority to change the custody o^ a child it had placed with any duly licensed child-placement or child-caring agency or individual if it appears that such change is for the best interests of the child. . he period of temporary custody of the child may be e4tended by the court for a period not e4ceeding one month at a time upon motion of the duly licensed child-placement or child-caring agency or individual to which the child has been committed. (h) 2ut* of 0ublic 0rosecutor. (n) Change of Custod*.he court shall direct the person or agency which has custody of the child to bring the latter to the court on the date of the hearing of the petition and shall ascertain the facts and determine whether the child is dependent+ abandoned+ or neglected+ and if so+ the-cause and circumstances of such condition. he court+ motu proprio+ or upon reDuest of the child assisted by his guardian ad litem+ or at the instance of the agency or person to whom the child was committed+ after due notice and hearing+ shall discontinue the temporary custody of the child if it appears that he is not being given proper care.! motion to remove custody of a child may be filed by an authori#ed representative of the )epartment with 'nowledge of the facts against a child-placement or child-caring agency or individual to whose custody a child has been committed by the court on the ground of neglect of such child as defined in Section . . he court shall set the motion for hearing with notice to the public prosecutor and the court-designated social wor'er. . !fter one month from the date temporary custody of the child was given to another suitable person+ the agency or individual shall submit to the court a verified report on whether the temporary custody of the child has promoted his best interests. 1f the court finds UP LAW BAROPS 2007 92 of 95 ONE UP LAW .emporar* Custod* of Child.!ny duly licensed child-placement or child-caring agency or individual to whom a child has been committed by the court shall be sub%ect to visitation or inspection by a representative of the court or of the )epartment+ as the case may be or of both+ to determine whether the welfare and interests of the child are being served+ (1) !eport of 0erson or #nstitution.1f+ after the hearing+ the court shall find the child to be dependent+ abandoned+ or neglected+ it shall render %udgment committing him to the care and custody of the )epartment or any duly licensed child-placement or child-caring agency or individual until he reaches the age of eighteen (1?)+ he %udgment shall li'ewise ma'e proper provisions for the custody of the property or money belonging to the committed child. (e) of this Rule.!ny duly licensed child-placement or child-caring agency or individual to whom a child has been committed by %udicial order may at any time be reDuired by the court (m) . .
Such written instrument should be notari#ed and signed in the presence of an authori#ed representative of the )epartment after counseling and other services have been made available to encourage the child.he parent or guardian of a dependent+ abandoned or neglected child may voluntarily commit him to the )epartment or any duly licensed child. "owever+ no child shall be committed unless he is surrendered in writing by his parents or guardian stating such voluntary commitment and specifically naming the office+ agency+ or individual to whose custody the child is to be committed. . UP LAW BAROPS 2007 93 of 95 ONE UP LAW . .<) days nor later than si4ty (I<) days from the date of the filing of said motion and cause notice of the hearing to be sent to the person+ agency or institution to which the child has been committed+ the public prosecutor and the court-designated social wor'er+ at least five (J) days before the date of hearing. (ii) 9enue. (e) of this Rule.!. and Sections 8+ 1< and . .he petition must state: he name and address of the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed.). I<.s parents to 'eep the child. SE$. *o. (a) 0etition for !emoval of Custod*.he parents or guardian of a child committed to the care of a person+ agency or institution by %udicial order may file a verified motion for the restoration of his rights over the child with the court which granted the involuntary commitment on the ground that he is now able to ta'e proper care and custody of said child+ provided+ however+ that the child has not yet been adopted. . (iv) !esolution. (iii) Hearing. 1n the same proceeding+ the court may suspend or revo'e the license of the agency or individual found guilty of such neglect depending upon the gravity or freDuency of the offense.1f it is found that the cause for the commitment of the child no longer e4ists and that the movant is already able to ta'e proper care and custody of the child+ the court+ after ta'ing into consideration the best interests and the welfare of the child+ shall issue a resolution terminating the parental authority of the person+ agency or institution to whom the child was committed by %udicial order and restoring parental authority to the movant+ D) :urisdiction for 0rosecution of 0unishable Acts.!t the hearing+ any person may be allowed to intervene at the discretion of the court to contest the right to the relief demanded. *o.after hearing that the allegations of the motion have been established and that it is for the best interests and welfare of the child+ the court shall issue an order removing him from the custody of the person or agency+ as the case may be+ and committing him to the custody of another duly licensed child-placement or child-caring agency or individual. (ii) Notice of Hearing. ! child may also be removed from the custody of the childplacement or child-caring agency or individual on the ground that the voluntary commitment of the child was un%ustified. . Aitnesses may be called and e4amined by the parties or by the court motu proprio.placement or child-caring agency or individual sub%ect to the rules of the )epartment. (i) Who ma* file8 4round. 9oluntar* Commitment of a Child to an #nstitution or #ndividual. (i) Who ma* file8 4round.he 3amily $ourt which granted the involuntary commitment shall have %urisdiction over the prosecution of a child who left without prior permission from the li'ewise have %urisdiction over the person who induced the child to leave such person or institution+ e4cept in case of actual or imminent grave physical or moral danger to the child.he petition shall be filed with the 3amily $ourt of the province or city where the child-placement or child-caring agency to which the child has been voluntarily committed is located or where the child may be found. .1 of R. he 3amily $ourt which granted the involuntary commitment shall also have %urisdiction over the prosecution of parents or guardians of the child who may be held liable under !rticles J8 and I< of 2.he parents or guardian who voluntarily committed the child+ or in their absence or failure+ any person with 'nowledge of the facts+ may file a verified petition to remove custody of the child against the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed on the ground of neglect of such child as defined in Section . 6I1<. Contents of 9erified 0etition . .he court shall fi4 the time and date for the hearing of the motion+ which shall not be earlier than thirty (. J. . (p) !estoration of 0arental Authorit* After #nvoluntar* Commitment.
*o+ I<.Ahere a child appears to be mentally retarded physically handicapped+ emotionally disturbed+ mentally ill+ with cerebral palsy or with similar afflictions and needs institutional care but his parents or guardians are opposed thereto+ the )epartment+ or any duly licensed child-placement or child-caring agency or individual may file a verified petition for commitment of the said child to any reputable institution providing care+ training and rehabilitation for disabled children. . . . 0etition for Commitment of a 2isabled Child. (v) :udgment. and Sections 8+ 1< and .E.he facts showing that the child has been neglected by the agency or in cases where the voluntary commitment was un%ustified+ that the parents of the child are actually capable of ta'ing care and custody of the child. he facts showing that petitioner has e4hausted the administrative remedies available to him+ (iv) Notice of Hearing. (a) Who ma* file. (=) he name and written conformity of the institution where the child is to be committed. . (7) he name of the parents and their residence+ if 'nown+ or if the child has no living parent+ the name and residence of the guardian+ if any.he petition for commitment of a disabled child shall be filed with the 3amily $ourt of the place where the parent or guardian resides or where the child is found. 1n case the )epartment refuses to grant legal custody and parental authority to the parent or guardian over the child who has been voluntarily committed to an agency or individual+ the parent or guardian may file a petition in court for restoration of parental authority in accordance with Section = (p) of this Rule. 6I1<. .) he fact that the parents or guardian or any duty licensed disabled child-placement or child-caring agency+ as the case may be+ has opposed the commitment of such child.1 of R. he name+ address and written consent of the duly licensed childplacement or child-caring agency or individual to whose care the child may be transferred. he court+ in the same proceeding may+ after hearing the comment or recommendation of the )epartment+ suspend or revo'e the license of the agency or individual found guilty of such neglect depending upon the gravity or freDuency of the offense. he parents or guardian of the child may file a similar petition in case no immediate placement can be arranged for the disabled child when his welfare and interests are at sta'e+ (b) 9enue. SE$.palsy or with similar afflictions and needs institutional care. (b) !estoration of 0arental Authorit* After 9oluntar* Commitment.he petition for commitment must stale the following: (1) he facts showing that the child appears to be mentally retarded+ physically handicapped+ emotionally disturbed+ mentally ill+ with cerebral . he restoration of rights of the parent or guardian over the child who has been voluntarily committed shall be governed by the rules of the )epartment+ provided+ however+ that the petition for restoration is filed within si4 (I) months from the date of voluntary commitment. UP LAW BAROPS 2007 94 of 95 ONE UP LAW . and (. *o.1f the petition is sufficient in form and substance+ the court shall set the same for hearing with notice to the )epartment+ the public prosecutor+ the court-designated social wor'er+ the agency or individual to whom the child has been committed and in appropriate cases+ the parents of the child. he same 3amily $ourt shall also have %urisdiction over the prosecution of parents or guardians of the child who may be held liable under !rticles J8 and I< of 2.1f after hearing the court finds that the allegations of the petition have been established and that it is for the best interests and welfare of the child+ it shall issue an order removing the child from the custody of the person or agency concerned+ and committing him to the custody of another duly licensed child-placement or child-caring agency or individual.he 3amily $ourt of the place where the child may be found or where the duly licensed child-placement or child-caring agency or individual is located shall person who induced the child to leave such person or institution+ e4cept in case of grave actual or imminent physical or moral danger+ to the child. . (c) Contents of 9erified 0etition.!. (c) :urisdiction for 0rosecution of 0unishable Acts. I.
or (. (d) /rder of Hearing8 Notice. 1n all cases where the e4penses for the maintenance of the disabled child cannot be paid in accordance with the immediately preceding paragraph+ the )epartment shall bear the e4penses+ or such part thereof as may remain unpaid. he order shall also direct the sheriff or any other officer of the court to produce+ if necessary+ the alleged disabled child on the date of the hearing. (e) Hearing and :udgment. (f) 2ischarge of :udiciall* Committed 2isabled Child. he court shall furnish the institution to which the child has been committed with a copy of its %udgment+ together with ail the reports and other data pertinent to the case. UP LAW BAROPS 2007 95 of 95 ONE UP LAW . .1f the petition filed is sufficient in form and substance+ the court+ by an order reciting the purpose of the petition+ shall fi4 the date of the hearing thereof+ and a copy of such order shall be served on the child alleged to be mentally retarded+ physically handicapped+ emotionally disturbed+ mentally ill+ with cerebral palsy or with similar afflictions and on the person having charge of him or any of his relatives residing in the province or city as the court may deem proper. 6. . he verified petition shall be sufficient if based upon the personal 'nowledge of the petitioner. . 3ffectivit*. (7) "e has been sufficiently rehabilitated from his physical handicap or if of wor'ing age+ is already fit to engage in gainful occupation.>pon motion of the parent+ guardian or institution to which the child has been %udicially committed under this Rule+ the court+ after hearing+ shall order the discharge of such child if it is established and certified by the )epartment that: (1) "e is no longer a danger to himself and the community.) "e has been sufficiently relieved of his psychological+ mental and emotional problems and is ready to assume normal social relations+ SE$. .his rule shall ta'e effect on !pril 1J+ 7<<7 after its publication in a newspaper of general circulation not later than 5arch 1J+ 7<<7. he court shall li'ewise ma'e proper provisions for the custody of the property or money belonging to the committed child.1f the court finds that the allegations of the petition have been established and that institutional care of the child is for his best interests or the public welfare and that his parents+ or guardian or relatives are unable for any reason whatsoever to ta'e proper care of him+ the court shall order his commitment to the proper institution for disabled children.(J) !n estimate of the costs and other e4penses of maintaining the child in the institution. he e4pense of maintaining a disabled child in the institution to which he has been committed shall be borne primarily by the parents or guardian and secondarily+ by such disabled child+ if he has property of his own.
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