Professional Documents
Culture Documents
Ateneo 2011 Remedial Law (Special Proceedings)
Ateneo 2011 Remedial Law (Special Proceedings)
Civil action
Enforce/protect right or
prevent/redress wrong
Private interests
Formal pleadings
Single appeal
Notice of appeal (usually one page)
15 days
Spec pro
Establish right, status, or particular
fact
Theres public interest also binds
the world (generally). So it must be
published.
Motions/application
Multiple appeals
Record of appeal (voluminous)
30 days
SETTLEMENT OF ESTATES
Extrajudicial settlement
144
2. 2 year period
Requirements for summary settlement?
o 1. Gross value of estate = 10K or less
o 2. Whether the decedent left a will or not, DOES NOT
MATTER
o 3. Hearing from 1-3 months after last publication 3
consecutive weeks in newspaper of GC in province + notice to
interested persons
o Why is it summary?
No administrator or executor
o What must the court do?
Public instrument
annotate/lien
o Personal property:
File bond
When is the decedent presumed to have left no debts?
145
2. If real, annotation
o Excluded heir
3. Rescission/partition 4 years
Judicial settlement
MTC
RTC
Resident
Non-resident
146
Is venue waivable?
o Yes. As this issue is only a matter of VENUE, it is not
jurisdictional. Implication: it can be waived.
What is the exclusion rule?
o When a probate court has taken cognizance of the proceeding,
it excludes all other courts.
What is the meaning of taking cognizance in the exclusion rule?
o The court has to do something. So not where you first filed,
but the court that first acted.
What is the limited and special jurisdiction of the probate court?
o General rule: probate court cannot pass upon issues of
ownership; can only pass judgment on jurisdiction or probate
of a will
o EXCEPTIONS:
Alipio: Creditor collecting from CPG for a debt cannot sue the surviving
spouse; must file a claim in the settlement of the estate of the decedent.
Reyes: An adoption decree cannot be subject to collateral attack in a
probate proceeding.
Settlement of estate of a person presumed dead how is the
estate dealt with?
o He is entitled to the balance of his estate after payment of
debts
o Balance may be recovered by mere motion in the same case
where he was declared presumptively dead
So it can be appealed
o Probate and authentication are the same: court really just
rules upon the extrinsic validity of the will.
o What is the rule on extrinsic validity as to probate?
147
o Any time
May the testator himself file?
o Yes.
What are the contents?
o 1. Jurisdictional facts
o 2. Names, addresses, ages of heirs, devisees, legatees
o 3. Probable value and character of property
o 4. Name of person for whom letters are prayed
o 5. If will not delivered to court, the name of the person with
custody thereof
What are the jurisdictional facts?
o 1. The person executed a will
o 2. Died in province of RTC or if non-resident, owned property
there
o 4. Submit will to court
Three ways of consolidating cases?
o 1. Recast and conduct one hearing only and one decision
o 2. Consolidate all cases into one hearing, one decision
o 3. Principal one heard and suspend others
Who must the applicant be?
o Applicant must be executor of the will, or must have custody
over the will
What must be submitted?
o Must submit original of the will; if mere copy, explain why.
A will was submitted for probate. Can the heirs then decide to just
file a separate case for partition of property?
o Cannot file subsequent separate case for partition of property,
because everyone is bound through publication (notice to
whole world) of the probate proceedings
o Contrast this with situation where the heirs first prayed for the
dismissal of the settlement proceedings and converted it to
partition proceedings
What is the nature of the probate proceeding?
o Probate of will is in rem; court acquires jurisdiction over all
interested persons and any order binds the whole world
o Mandamus to undergo publication is not the proper remedy
must appeal in due time and manner
What is the rule on publication?
148
2. Affidavit of publication
What happens when there is an opponent for a holographic will?
o At least 3 witnesses who know the handwriting and signature
of the testator must attest.
o May resort to expert witnesses
If notarial will?
o All the subscribing witnesses and the notary must attest
o If some are not there, explain
o Cabang: If probate of will is opposed, all subscribing witnesses
of a notarial will must be presented. Here, just 1 invalid.
o What are exceptions to the rule that for opposed wills, one
must present all the subscribing witnesses?
o
o
2. Set hearing
3. Give notice as in the case of the original will presented for
allowance
o 4. ALSO publication, not just notice (jurisprudence)
Difference between principal and ancillary administration?
o Ancillary administration is administration of the decedents
estate other than the one in which she lived, to dispose the
property she owns there. This is subordinate to, and in aid of,
principal administration.
o Duty of ancillary administrator is to present evidence to support
To which properties does administration extend for these cases?
o Administration only extends to property within State or country
where letter was granted
o No power beyond that.
What does the court issue thereafter?
o Certificate of allowance
Will
149
1. File petition
1. Death
3. Nonresident
To whom is the letter of administration granted?
Yes.
o Who has discretion to appoint an administrator?
Drunkenness
Improvidence
150
Special Administrators
151
152
153
1. Admit
2. Oppose
o 3. Goes to trial
What is the statute of non-claims?
o Time period when a person may file claims against the estate
o After which, barred forever.
o Exception:
Contract
Vouchers
1. Nature
2. Stipulation
3. Provision of law
154
4. Commit to prison
An heir and an administrator are in conflict as to whether a certain
property must be included in the estate. What may the court do?
o It may pass upon the issue for inventory purposes.
o BUT if there is third person who asserts right to property
contrary to decedents, court has no authority to resolve the
issue. Separate action instituted to recover the property.
Obando:
o Co-administrator was removed for presenting forged will.
Removal was still on appeal.
2. Give bond
155
The estate sometimes has debts. In this case, how must they be
paid?
o First, from the personal estate.
o Second, from real property not disposed of by will.
o Third, retention to meet contingent claims
156
o
o
Reyes
o
o
o
o
No.
Escheat
157
Guardianship
158
Trustees
159
Who is a trustee?
o Can be made to carry in effect the provisions of a will or a
written instrument
o Appointed/confirmed in the probate court (if carrying out a will)
or the RTC where the property is located (for written
instrument)
When can the court appoint a new trustee under a will or under a
written instrument?
o 1. When the testator in aw ill omitted to appoint a trustee in the
Philippines, and such appointment is necessary to carry into
effect the wills provisions
o 2. When a trustee under a written instrument declines, resigns,
dies, or is removed before the object of the trust is
accomplished
o What is the power of the new trustee?
Adoption
[Capacity]
1. Legal age
[Personal characteristics]
EXCEPT:
160
Case study: There was a child who was left outside of the house of a
childless couple and having noticed that no one is claiming the child,
the couple adopted the child. But they secured a birth certificate and
filled in the childs details (simulation of birth), without applying for
legal adoption. The child grew up and when she applied for a visa to
the US, she was denied because she was found to not be the natural
child of the mother (who is sterile). What are implications and what
actions must be taken to correct the situation?
161
c) identify witnesses
Remedy
162
Habeas Corpus
To all cases of
illegal confinement
Amparo
Any person whose
right to life, liberty,
Habeas Data
same as
amparo, but the
Petitioner
Venue
or detention: 1)
person is deprived
of liberty, or 2)
rightful custody of
any person
withheld from the
person entitled
thereto
Party for whose
relief it is intended,
by some other
person on his
behalf
SC, CA, or SB
RTC:
1)
Plaintiffs
residence
2)
Defendants
residence
3)
Where nonresident
defendant is
found
Issuance
of writ
Immediately once
it appears
Summary
hearing
Upon filing of
return
and security is
violated/threatened
by unlawful act or
omission of public
official, public
employee, or private
individual/entity
Aggrieved party, or
any qualified person
or entity in the order
in sec. 2: (1.
Immediate family
member, 2. Relative
th
to 4 degree of
consanguinity, 3.
Concerned citizen,
org, assoc, etc.)
person must be
engaged in 1)
gathering, 2)
collecting, 3)
storing data or
information
regarding the
person
In general:
aggrieved party
Except for EJ
killings and
enforced
disappearances:
1) immediate
family, 2) in
default, relative
th
to 4 degree of
consanguinity
issuance
Service
Return
Penalties
N.B. no
concerned
citizen, etc.
SC, CA, or SB:
Manila
RTC: 1) where
petitioner
resides, 2)
where defendant
resides, or 3)
has J over place
where data is
gathered, etc.
Interim
reliefs
Served on person
to whom it is
directed; if cannot
be found or not
with custody, then
to person with
custody
Signed and sworn
to if prisoner not
produced
N.B. no period
specified for return
Clerk who doesnt
issue writ.
Person fails to
make return,
makes false return,
refuses to deliver
person demanding
(within 6 hours) the
copy of warrant or
order of
commitment
1)
2)
Same as
Amparo, but
within 3 days
Not later than 10
days from
163
Court may
adjourn for
good cause
and make
order for safe
keeping of
person
If person
cannot be
produced due
to grave
illness, court
must be
satisfied that
Same as WOA
Same as WOA
1) Temporary
protection order
2) Inspection order
(5 days)
3) Production order
(of documentary
or object or
electronic
evidence)
4) Witness
protection order
N.B. 2 and 3 are
both available to
Same as WOA
Judgment
Appeal
he cannot be
produced
without danger
Discharge from
confinement
Ordinary appeal,
48 hours from
notice of judgment
respondent as well
Judgment within 10
days. If proved by
substantial evidence,
grant reliefs as
applicable.
Standard of
evidence?
Substantial
evidence
Diligence required
for defense?
Private person:
ordinary
diligence
Public official:
extraordinary
diligence
Rule 45 petition for
review on certioriari
with peculiar
features:
1) Appeal may
raise
questions of
law, fact, or
both
2) Appeal 5
working
days from
notice of
judgment
3) Same
priority as
habeas
corpus
cases
failure of petitioner or
witnesses to appear
due to threat to lives,
it should NOT
dismiss the petition;
just archive the case.
Same as
Amparo, but in
addition, the
judgment must
be enforced by
sheriffs or court
officers within 5
days
Separate
actions
Revival rule:
Court conducts
periodic review of
archived cases and
revives them if they
can proceed.
Dismiss case with
prejudice if 2 years
have lapsed from
archival.
Allowed
Same as WOA
When there is
criminal case, cannot
file for writ. But
reliefs allowed.
Same as WOA
Always consolidate
with the criminal
action
Archiving rule:
If court cannot
proceed due to
164
o
o
If clerical
Courts:
Everything else
What to file?
o 1. That petitioner is a bona fide resident of province where
petition was filed for at least (3) years prior to the date of such
filing
o 2. Cause for which change of petitioners name is sought
o 3. Name asked for
RA 9255 grounds by which an illegitimate child can use the
fathers surname:
o 1. Filiation recognized by father in civil register
o 2. OR Admission in public document or private writings
o N.B. But the father can institute action for non-recognition
anytime during his lifetime
Name of law
Change of full
name
(substantial
correction)
Person desiring
to change name
Venue
RTC of province
where petitioner
has resided the
past 3 years;
City of Manila:
Juvenile and
Domestic
Relations Court
1) petitioner is
bona fide
resident (3
years)
2) cause
3) name asked
for
1) name
ridiculous,
tainted with
dishonor,
extremely
difficult to
write/pronounce
2) consequence
Petition
contents
Grounds
165
103
Change of name
Subject matter
Person
interested in any
matter
concerning
recorded civil
status of person
RTC of city or
province where
the registry is
located
SAME as 103
RA 9048
Clerical Error Act
Change of first
name, nick
name, and civil
entries
(typographical or
clerical errors)
Person with
direct and
personal interest
in correction
1) LCR of city or
municipality
where record is
2) LCR of place
where interested
party is residing
3) Phil.
Consulates
1) facts
necessary to
establish merits
2) particular
erroneous entry
1) Name
ridiculous,
tainted with
dishonor,
extremely
difficult to
write/pronounce
2) new first
Proceeding
Notice
Appeal
of change of
status
3) necessity to
avoid confusion
4) continuous
used and known
by Filipino name,
unaware of alien
parentage
5) sincere desire
to adopt Filipino
name to erase
signs of alienage
Judicial
o
o
name or
nickname
habitually and
continuous used,
and publicly
known
3) avoid
confusion
Administrative
Summary (but
adversarial if
there are
substantial
changes)
Once a week for
3 consecutive
weeks in
newspaper
(notice of
hearing)
Not 30 days
prior to election;
not within 4
months of last
publication of
notice
CA
CA
Civil Registrar
General
Appeal
Once a week for
two consecutive
weeks (publish
affidavit)
Posting
Family home
Absentees
Settlement of
What is the purpose of the rule?
166
Resident: where
Reglementary
period
Record on
Publication rule
EJ settlement: 3
estate
residing;
appeal 30
days
Non-resident:
where property
is
Escheat
Guardianship
Court in province
of last residence
Non-resident:
where estate is
located
Person of minor
in Family court
where minor
resides ;
Record of
appeal 60
days
Record on
appeal 30
days
Adoption
[3 weeks
successively for
proving will]
Postal service
20 days before
hearing,
personal service
10 days before
hearing
Habeas corpus
Property of
incompetent not
minor follow
300k/400k rule
Venue: Family
court of the
province or city
where the
adoptive parents
reside
SC, CA, SB
Plaintiffs
residence
Defendants
residence
Claims: 3 weeks
successively,
posted: 4 public
places in
province, 2 in
municipality
Once a week for
6 weeks
(hearing though
is at least 6
months after
order of court)
None
Amparo
Habeas data
OR
Non-resident
defendant,
where property
found
Manila: SC, CA,
SB
RTC with
jurisdiction over
where violation
or any of its
elements
happened
Manila: SC, CA,
SB
Plaintiffs
residence
Defendants
residence
OR
RTC with
jurisdiction
where data is
gathered,
collected, stored
Property of
minor same
Person of
incompetent, not
minor RTC of
residence
167
Record on
appeal 30
days
None
Ordinary appeal,
48 hours from
notice
None
None
None
Change of
name
Correction or
cancellation
Clerical or
typographical
error 9048
RTC of plaintiffs
residence for 3
years
Manila: Juvenile
and Domestic
relations court
RTC with
jurisdiction over
place of registry
LCR where
record is,
LCR of
residence, or
Phil. consulate if
nonresident
Record on
appeal
Record on
appeal
Civil Registrar
General
ENVIRONMENTAL CASES
Civil Procedure
168
Ex-parte
o How long is it effective?